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

Professor Honnold does not view circumvention of domestic product liability laws as a valid counter argument
against the Convention´s preemption of domestic law. According to the Professor it is a mere description
of the inevitable interaction between the Convention and domestic law, since the argument is not only
applicable to property damage claims, but also to many other types of claims based on domestic law. In
the end it is an argument against injecting uniform international law into the midst of non-uniform domestic
law. 79
The Convention provides a fair balance between buyers and sellers. Permitting a buyer to choose a more
favorable domestic law would merely add to the buyer´s protection and disturb the balance created in the
Convention. 80
The argument that domestic product liability laws on property damage should not be displaced because
they are a part of public order in a wider sense does, according to Professor Honnold, represent a decision
on which domestic laws are too “important” to preempt. The drafters of the Convention have already made
this decision in the Convention by inserting provisions concerning those particular topics, where it was
thought best to preserve domestic law – for example in art 5 CISG regarding death and personal injury
claims. “Without such explicit guidance from the text of the Convention, having commentators or even
judges decide what domestic law is to important to preempt is a recipe for non-uniformity and infringement
of the legislative function”. 81
Access to domestic law will also render it impossible to maintain legal certainty in international sales contracts
82 because it would be the applicable domestic law, which decides whether or not to allow tort claims
to co-exist with contractual claims.
Furthermore, permitting recourse to domestic law can be unfair, because not all domestic systems permit a
choice between contract and tort law. 83 This is the case under French law, where the rule of non-cumul
generally excludes the application of tort law rules if there is a contractual relationship between the parties,
thereby giving the contractual liability system legal priority over the tort liability system. 84 This has the
consequence that tort rules are suppressed, even though the Convention does not mention a particular
matter. So a French buyer, whose property suffered damage due to a defect in goods bought in an international
sale, will not have the possibility to claim damages under domestic tort law, e.g. where the 2-year
limit in art 39 CISG has been exceeded. However an American buyer in the same situation might still have
that option, since American courts have been know to allow concurring claims, where the essence of the
action raised is viewed as based on tort and not contract. 85
Thus only in situations where the claim under domestic law depends on facts that differ from the facts necessary
to establish a claim under the Convention, can domestic law be invoked. Proof of lack of due care is
not a fact that differs sufficiently in this respect. 86
Concluding that domestic product liability is preempted by the Convention is, according to Professor Honnold,
not only the sensible solution, but it is also the solution most likely to capture the result intended by
79 Honnold fourth edition page 100 para 73.
80 Honnold fourth edition page 101 para 73.
81 Honnold fourth edition page 101 para 73.
82 Raqmberg & Herre page 108 para 2.5.3. and Honnold, fourth edition page 101 para 73.
83 Honnold, fourth edition page 101 para 73.
84 Schlechtriem, Borderland page 468 section I, A and page 470 section I, B.
85 Schlechtriem, Borderland, page 470 section I, B.
86 Honnold, Third edtition page 75 para 73.
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