Table of Contents

1. Cover
2. Title
3. Copyright
4. Preface
5. Table of contents
6. Abbreviations
7. § 1: Introduction
   1. I. Outline of the problem
      1. 1. Unharmonized domestic sales law and property law
      2. 2. CISG and national property law
   2. II. Outline of the study
   3. III. Remarks on methodology
      1. 1. History of unified sales law, the accessible material, and its usefulness in interpreting the CISG
         1. a) Unidroit: 1928–1951
         2. b) Conference in The Hague in 1951 and the Special Commission
         3. c) ULIS and ULF
         4. d) Usefulness of historical records
      2. 2. Comparative law pre- and post-unification
      3. 3. Summary
8. § 2: Groundwork
   1. I. Terminology
   2. II. Notions of property
      1. 1. Absolute notion of property on the European continent
      2. 2. Relative, absolute, and otherwise different notions of property under Roman law
      3. 3. Relative notion of property
      4. 4. Reduced significance of a “lump” concept of property
         1. a) Nordic countries
         2. b) USA and its UCC
      5. 5. Summary
   3. III. Differences in the transfer of property with regard to sales transactions
      1. 1. Transfer of property due to mere consent or additional requirement of handing over of the goods
      2. 2. Causal or abstract relationship between transfer of property and the sales contract
   4. IV. Law applicable to questions of property
      1. 1. Law applicable to questions of property before State courts
      2. 2. Law applicable to questions of property before arbitral tribunals
   5. V. Conclusion
9. § 3: Obligation to transfer the property and third party rights or claims
   1. I. Distinguishing different obligations to transfer the property
      1. 1. Obligation to transfer unencumbered property
      2. 2. Obligation to fulfill the necessary acts for the transfer of property
   2. II. Historical roots and comparative law
      1. 1. Roman law
         1. a) Actio auctoritatis, stipulatio duplae, stipulatio habere licere, and obligation to transfer property
         2. b) Explanatory approaches
      2. 2. National laws
         1. a) French law
            1. aa) Garantie d’éviction and Articles 1626 et seq. of the French Civil Code
            2. bb) Nullity of the sale of goods that belong to a third party under Article 1599 of the French Civil Code
            3. cc) Summary
         2. b) Swiss law
            1. aa) Articles 184 and 192 et seq. of the Swiss Code of Obligations
            2. bb) Opinions by the Swiss courts and scholars
            3. cc) Position of the Swiss Supreme Court
            4. dd) Discussion
               1. (1) Protection of the buyer before eviction
               2. (2) Systematic arguments
               3. (3) Revealing the respective historical background of the Swiss Code of Obligations
            5. ee) Summary regarding the obligation to transfer the property
            6. ff) Nullity due to impossibility and Article 20 of the Swiss Code of Obligations
         3. c) English law
            1. aa) Section 12(1) of the Sale of Goods Act 1893 and 1979
            2. bb) Failure of consideration
            3. cc) Summary
      3. 3. The breakthrough of German law?
         1. a) Germanic and Franconian law
         2. b) The German Civil Code of 1900
         3. c) Breakthrough of German law by introducing the obligation to transfer the property?
      4. 4. Summary
   3. III. Current interpretations of Articles 30 and 41 of the CISG
      1. 1. Approach 1: Buyer has to become owner of the goods under Article 30 of the CISG
      2. 2. Approach 2: Article 30 of the CISG obliges the seller to fulfill the necessary acts under national law to effect a transfer of property
      3. 3. Approach 3: Article 30 of the CISG is merely an overview elaborated by Article 41 of the CISG and contains no independent obligation
   4. IV. A novel approach: Defining “property” under Article 30 of the CISG and applying Article 41 of the CISG with regard to third parties only
      1. 1. Defining “property” under Article 30 of the CISG
         1. a) Deriving the meaning of “property” from existing concepts
         2. b) Proposed definition of property under Article 30 of the CISG
         3. c) “Transfer” of property
         4. d) Intellectual property rights
         5. e) Accessories to the goods
      2. 2. Advantages of this approach
         1. a) The wording of Article 41 of the CISG and third parties
         2. b) Uniformity and Article 7(1) of the CISG
         3. c) Improved delineation of Articles 30 and 41 of the CISG
            1. aa) Relevant point(s) in time
               1. (1) Relevant point in time under Article 30 of the CISG
               2. (2) Relevant point in time under Article 41 of the CISG
               3. (3) Advantages of a distinction regarding the relevant point in time
               4. (4) Summary
            2. bb) Assessing modifications of both obligations under Article 6 of the CISG
            3. cc) Claim for performance under Article 46(1) or 46(2), (3) of the CISG
            4. dd) Article 43 of the CISG
         4. d) Summary
      3. 3. Consequences for the type of obligation found in Article 30 of the CISG
      4. 4. Obligation to transfer unencumbered property under Article 41 of the CISG
         1. a) Wording and the additional protection from claims of third parties
            1. aa) Can there be a breach of contract by a right that is not at the same time a claim?
               1. (1) Relevant point in time for the claim or the facts underlying the claim to exist
               2. (2) Bona fide purchaser
               3. (3) Threshold for existence of “claims”
                  1. (a) Frivolous or obviously unfounded claims of third parties
                  2. (b) Against whom must the claim be raised?
                  3. (c) (No) requirements of a “claim” that surpasses a mere expression of a third party to have a right in the goods
               4. (4) Summary
            2. bb) Are there buyers’ remedies for claims of third parties more limited than the remedies for rights of third parties?
               1. (1) Claim for performance under Article 46 of the CISG and reduction of price under Article 50 of the CISG
               2. (2) Avoidance of contract under Articles 49(1)(a), 25 of the CISG
               3. (3) Prescription
            3. cc) Summary
         2. b) Purpose of Article 41 of the CISG
         3. c) Travaux préparatoires
         4. d) Summary
      5. 5. Broader protection for buyers under the CISG than a mere obligation to transfer unencumbered property
      6. 6. Preemption of remedies under national law regarding the non-transfer of property
      7. 7. Applying the novel approach in direct comparison to approaches 1–3
      8. 8. Summary
   5. V. Outlook on unifications of law and specifically European law
10. § 4: Property and the characterization of a sales contract under the CISG
    1. I. Status quo and general opinion under the CISG
    2. II. Transfer of property as understood under national laws is no necessary element of characterization of sales contracts under the CISG
    3. III. Transfer of property under Article 30 of the CISG is no necessary element of characterization of sales contracts under the CISG
       1. 1. The Res Cogitans and English sales law
          1. a) The case
          2. b) Reception in the English literature
             1. aa) Property-transfer for a nanosecond (scintilla temporis)
             2. bb) Functional interpretation of the retention of title clause
             3. cc) Conditional contract of sale of bunkers
             4. dd) Party autonomy in characterizing the contract
       2. 2. The reasoning of The Res Cogitans and the CISG
          1. a) Property-transfer for a nanosecond and functional analysis of the retention of property clause
          2. b) Conditional contract of sale
          3. c) Party autonomy in characterizing the contract
       3. 3. Property as part of the definition of a CISG contract
    4. IV. Proposed characterization of a sales contract under Article 1(1) of the CISG
       1. 1. Delivery of the goods is not a necessary component of a sales contract
       2. 2. Benefits and risk of the goods as central elements
       3. 3. Applying the proposed definition of a sales contract under the CISG
    5. V. Conclusion
    6. VI. Outlook on unifications of law and specifically European law
11. § 5: Property and the claim for the purchase price
    1. I. Property in the goods and action for the price in the common law
       1. 1. English law and legal systems that are inspired by the Sale of Goods Act 1979
          1. a) Historical roots
          2. b) Current English law
          3. c) The Res Cogitans and future English law
       2. 2. Other common law jurisdictions
       3. 3. Different motives for the shaping of the claim for the purchase price in the USA
       4. 4. Summary
    2. II. Continental European laws’ approach exemplified by German law
       1. 1. German law in theory
       2. 2. Practice of the courts
       3. 3. Consumer laws
       4. 4. Summary
    3. III. Summary of national concepts
    4. IV. Claiming the price under the CISG
       1. 1. Article 62 of the CISG
          1. a) Notable widening of scope of Article 62 of the CISG compared to Article 61(2) of the ULIS
          2. b) No limitation of the claim for the price under Article 77 of the CISG
          3. c) No limitation of the claim for the price under Articles 85, 87 of the CISG
          4. d) No limitation of the claim for the price under Article 88 of the CISG
          5. e) Possible limitation of the claim for the price under Article 9(2) of the CISG
          6. f) Limitation of the claim for the price under Article 58 of the CISG
          7. g) Limitation of the claim for the price under Article 7(1) of the CISG
          8. h) Summary
       2. 2. Damages claim instead of the claim for the price
          1. a) Article 77 of the CISG after extinction of performance claim
          2. b) Article 77 of the CISG while claim for performance still exists and is due
             1. aa) Article 77 of the CISG and damages due to delay
                1. (1) Storage costs
                2. (2) Financing costs
                3. (3) Summary
             2. bb) Approach 1: Article 77 of the CISG generally requires a resale if the buyer refuses to perform
             3. cc) Approach 2: Article 77 of the CISG does not generally require a resale if the buyer refuses to perform
             4. dd) Discussion
          3. c) Summary
       3. 3. Article 28 of the CISG and the claim for the price under Article 62 of the CISG
          1. a) Applicability of Article 28 of the CISG to the claim for the price under Article 62 of the CISG
             1. aa) Potential consequences if Article 28 of the CISG were applicable to the claim for the price under Article 62 of the CISG
                1. (1) (Im)possibility to force the buyer to pay the price in a foreign currency
                2. (2) (Im)possibility to force the goods de facto onto the buyer
                3. (3) (No) indirect duty of the buyer to resell the goods
                   1. (a) Solea International BVBA v Basset & Walker International Inc
                   2. (b) Law applicable to calculation of the damages
                   3. (c) Influence of Article 28 of the CISG on Article 77 of the CISG
                4. (4) Summary
             2. bb) Arguments for and against the application of Article 28 of the CISG to the claim for the price
                1. (1) Wording of Article 28 of the CISG
                2. (2) Systematic interpretation
                3. (3) Travaux préparatoires
                4. (4) Purpose of Article 28 of the CISG
                5. (5) Result
          2. b) Application of its “own” law with regard to the claim for the purchase price
          3. c) Summary
    5. V. Conclusion
12. § 6: Exclusion under Article 4, sentence 2(b) of the CISG
    1. I. Effect on “property” under Article 4, sentence 2(b) of the CISG
       1. 1. “Property” as an autonomous term under Article 4, sentence 2(b) of the CISG
       2. 2. Indirect relevance of the CISG on the transfer by way of incidental questions
    2. II. Retention of property clauses
       1. 1. Effects on property in the goods excluded under Article 4, sentence 2(b) of the CISG
       2. 2. Effects on contractual rights and obligations not excluded under Article 4, sentence 2(b) of the CISG
       3. 3. Consent regarding the retention of property clause under Articles 14–24 of the CISG or under national law?
       4. 4. Summary
    3. III. The CISG’s position on parties’ agreements to regulate the transfer of property
       1. 1. (No) mandatory character of Article 4, sentence 2(b) of the CISG
       2. 2. Regulating the transfer of property under Article 6 of the CISG
       3. 3. Relevance of parties’ agreement outside of the CISG
    4. IV. No contradiction between Article 4, sentence 2(b) CISG and Articles 30, 41 of the CISG
    5. V. Suitability of the exclusion under Article 4, sentence 2(b) of the CISG
    6. VI. Conclusion
13. § 7: Remedies based on (national) property law
    1. I. Different approaches regarding claims based on property under national law
    2. II. Claims by or against third parties
    3. III. Claims between the seller and the buyer
       1. 1. Buyer’s claim based on property after contract conclusion
       2. 2. Seller’s claims based on property after avoidance of contract
       3. 3. Seller’s claims based on a retention of property clause
    4. IV. Conclusion
14. § 8: Insolvency and property in the goods
    1. I. Elevated relevance of property in insolvency cases
    2. II. The CISG does not supersede national insolvency law on the available assets for distribution and priorities
    3. III. (No) indirect influence on seller’s property after avoidance of contract by the CISG
       1. 1. Schlechtriem and the causa surviving contract avoidance
       2. 2. Landfermann, Hornung, Krebs, Claude Witz arguing for the irrelevance of the CISG
       3. 3. Discussion
          1. a) Challenging the premise of the continuing existence of a causa for purposes of national property law as a matter governed by the CISG
          2. b) Challenging the premise of an incidental question to the applicable contract law
             1. aa) The correct methodology of incidental questions is not decisive
             2. bb) Introducing a discussion on the same problem in private international law literature
             3. cc) Contrat translatif as a requirement under the national property law
          3. c) Advantages of the proposed interpretation for the CISG
       4. 4. Summary
    4. IV. Conclusion
15. § 9: Conclusions and theses
    1. I. Conclusions
    2. II. Theses
16. Index of authorities
17. Index of further material
18. Index of cases