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

anty has been given from a manufacturer. The reason for this is that the Convention does not govern third
party claims cf. art 4 and thus can not provide the legitimacy of such claims.
In any event it will usually be much easier and less expensive for the ultimate buyer to sue his seller since
the ultimate buyer and his seller are usually located in the same State. The consequence of this is that the
Convention does not apply cf. art 1(1) and instead domestic law will be applicable, which is both more convenient
and possibly more favorable for the ultimate buyer then applying the Convention. It is therefore
unlikely that the Convention will play a large role in regards to ultimate buyer´s claims against manufacturers
and the Conventions role will likely be confined to situations, where the distributor in question has experienced
a financial difficulty, thereby forcing the ultimate buyer to claim damages elsewhere. 62
3.2. Summary
In this section it has been concluded that claims based on damage to property as a result of defective goods
sold in an international transaction, is governed by the Convention. This is stated directly in the legislative
history and also follows from the wording of art 5 CISG. Thus the buyer can claim damages for the loss incurred
according to art 45(1)(b) CISG, if the notice requirements in art 39 CISG and the preconditions in art
74 CISG have been fulfilled.
DAMAGE TO PROPERTY CAUSED BY FAULTY GOODS IS TRADITIONALLY GOVERNED BY DOMESTIC PRODUCT LIABILITY LAWS.
CONSEQUENTLY, THERE IS AN OVERLAP BETWEEN DOMESTIC LAW AND THE CONVENTION AND THIS OVERLAP CREATES
ISSUES WITH concurring CLAIMS. HOW TO RESOLVE THESE ISSUES IS DISCUSSED IN SECTION 4 OF THIS THESIS.
In conjunction with the increasing globalization in trade, chains of contracts have become an important
focus point in domestic product liability laws. This does not impact the use of the Convention, because the
Convention is only concerned with the contract of sales between a seller and a buyer cf. art 1 and 4 CISG.
Whether or not a third party claim can legitimately be raised depends entirely on domestic law.
4. CONCURRING CLAIMS
4.1. Introduction
Contracting states of the Convention are bound by public international law to apply the Conventions provisions
within the anticipated sphere.
The general principle is that exclusivity of uniform law is to be assumed, which protects the balance between
the buyer and the seller. Domestic law should therefore not be permitted to interfere with the balance
created in the Convention. If a matter is governed by the Convention, the Convention takes priority
and preempts the use of concurrent remedies under domestic contract law.
Thus contractual claims, based on an international sale of goods, have to be determined exclusively by the
Convention. If the lex fori classifies product liability claims as contractual claims, domestic rules cannot be
applied concurrently with the Convention. The possibility of having concurring claims based on both the
62 Honnold, Fourth edition page 77 para 63 who agrees with this conclusion.
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