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

have effect on domestic tort law, especially when such a solution is not mentioned in either the Convention
or the legislative history.
The fact that the drafters of the Convention rejected a proposal to limit recourse to concurring domestic
rules, regarding actions concerning non-conforming goods, 67 could be viewed as an indication of the intention
to generally allow concurring claims. 68 To consider the justification of such a position it is necessary to
go further back in the legislative history of the Convention.
The Convention is rooted in two earlier Conventions, one dealing with formation of contracts (ULF) and the
other dealing with the obligations of the parties (ULIS). Art 34 ULIS preempted the use of all other remedies
based on lack of conformity of the goods in an attempt to protect the uniformity of the rules. 69 Consequently,
ULIS took a deliberate stand on the issue of concurring claims.
Such a provision does deliberately not exist in the CISG. This does not reflect a support for concurring
claims in general but only that the formulation of art 34 ULIS had the unfortunate result of preempting too
much of domestic law, since it also meant excluding remedies, which the parties had agreed to in the contract.
70
Furthermore, the Vienna drafters had the hope that a provision preempting concurring claims would not be
necessary. This was especially due to the fact that art 7 of the Convention commands the attention to the
international character of the Convention and the need to promote uniformity. 71 Since allowing concurring
claims poses a direct threat to uniformity, the drafters were optimistic that a provision preempting the use
of such was unnecessary.
Based on this it is difficult to conclude that since an article preempting recourse to domestic law regarding
actions concerning non-conforming goods does not exist, the drafters supported concurring claims in general.
On the other hand there is no clear indication in the legislative history of an intention to preempt recourse
to domestic tort laws on product liability.
The only definite thing which can be concluded from the legislative history is that the Convention does not
apply to the liability of the seller for death or personal injury to the buyer caused by the goods.
Whether damage to property is governed exclusively by the CISG or whether concurring claims based on
domestic tort law are permitted was not clarified by the delegates at the Vienna conferences.
Thus it is necessary to examine other sources to determine the appropriate solution to the puzzle of concurring
claims.
4.3. Doctrine
There are three main positions which have been advocated in doctrine regarding concurring claims based
on domestic tort law.
According to the first position, the Convention exclusively governs cases of property damage and the admissibility
of domestic product liability claims is thus denied. 72 The second position states that domestic
remedies are generally available and leaves it up to domestic law to determine whether and to what extend
a buyer can claim damages based on tort law. 73 The last position distinguishes between cases in which
the property damage is the typical result of the breach of contract from cases in which the property dam-
67 (A/CN.9/WG.2/WP.16) para 62.
68 Lookofsky: page 26 § 2.6 n. 106.
69 (A/CN.9/62) para 57.
70 (A/CN.9/WG.2/WP.16) para 63.
71 (A/CN.9/WG.2/WP.16) para 64.
72 Honnold, Fourth edition, page 95-102 para 73 and Ramberg & Herre page 107-108 para 2.5.3.
73 Magnus page 144-146 pap 9-16, Lookofsky, In dubio, page 287 and Ferrari page 73-75 section VI.
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