Product liability under the CISG and Concurring tort law claims ...

scope of the Convention”. 52 This conclusion is supported by Professor Honnold, who finds that “except for
unusual circumstances, the Convention would not govern actions by a buyer against persons other than the
seller and consequently would not interfere with domestic rules, such as product liability, that permit such
actions”. 53
Thus the prevailing view is that the Convention does not govern third party claims and that such should be
dealt with according to the domestic law applicable, based on the rules of private international law. However,
according to the Professors Schwenzer and Schmidt the determining factor is that the manufacturer´s
financial outcome remains the same. Whether the claim is raised due to recourse within the respective
contract relationship, ultimately attributing the loss to the manufacturer or through a direct claim is unimportant.
54 Although the learned professors do have a point in their statement, it is this author´s opinion
that it is rash to refer to the method, which is use to climb down the contractual chain, as unimportant.
Leaving such a topic unresolved creates unnecessary uncertainties regarding the applicable law and such
uncertainties can easily lead to an increase in litigation costs and an increase in the general cost for goods
sold in international trade as a result of this. This contradicts the very aim of the Convention, which was to
create certainty and uniform rules in international trade.
Even though the prevailing view is that the Convention does not govern third party claims, it is possible
that in situations where the manufacturer has participated substantially in a sale to an ultimate buyer, the
domestic courts will come to the conclusion that the manufacturer is a “seller” according to art 4 CISG.
This was the case in a dispute brought before the District Court in California, U.S. in 2001. 55 The court applied
the Convention to determine a U.S. buyer´s rights against a Canadian manufacturer of computer
chips, which the buyer had purchased from a U.S. distributor. The buyer claimed that the computer chips
did not conform to representations made by the manufacturer to the buyer.
It would appear that the court did not consider the issue of direct claims against third parties and the wording
of art 4 CISG and as a result the judgement has been criticized and deemed as unconvincing precedence.
56
In any event, the case illustrates that if there is a direct connection between the manufacturer and the ultimate
buyer, it is possible that domestic courts will view this as a contractual relationship in itself. This
must be taken into account by international traders, regardless of whether the approach is viewed as erroneous
and out of tune with the provisions in the Convention.
3.1.2. Manufacturer´s implied or express warranty
Some manufacturers provide dealers and distributors with a guarantee or warranty in connection with a
sale of the goods to pass on to potential buyers. Providing such a warranty can have many purposes, e.g. to
encourage sales via the confidence that potential buyers have in a well-known manufacturer. The question
is whether such a warranty makes the manufacturer a “seller” within the language of art 4 CISG in relation
to the ultimate buyer, even though the distributor executed the actual contract with the ultimate buyer.
52 Schwenzer/Schmidt Parties page 114 section 3.1, Hachem in Schwenzer page 84 para 23 and Stoll in Schlechtriem/Thomas
page 564 para 26.
53 Honnold, Fourth edition page 94 para 71 and page 77 para 63 cf. n. 10. See also Huber in Schlechtriem/Thomas page
368 para 37.
54 Schwenzer/Schmidt page 115 section 3.1.
55 Asante Technologies, Inc. v. PMC-Sierra, Inc.
56 Honnold, Fourth edition page 78 para 63.
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