The United Nations Convention on Contracts for the International Sale of Goods, also known as the Vienna Convention ("CISG"), is a convention establishingtaşınır the rules of substantive law applicable to contracts for the international sale of movable goods. The CISG was adopted in Vienna on 11.04.1980 and became a part of Turkish national law by entering into force in Turkey on 01.08.2011. CISG is a major step towards the uniformization of international trade law and is applied in most of the leading countries in global trade. The main concepts regulated under the CISG are the formation and interpretation of contracts, the contractual obligations of the buyer and seller, the rights of the other party in case of breach of these obligations, the transfer of damage in the sale of goods and other general provisions. However, the validity of the whole or certain provisions of the contract and the transfer of ownership are not regulated in the CISG. For such matters, the law chosen by the parties to the contract will apply.
APPLICATION AND SCOPE OF CISG
There are certain conditions for the application of the CISG to international sale of goods contracts, some of which are depending on the place of business of the parties and some of which are based on the type of goods subject to the contract.
a. Application of CISG
Article 1 of the CISG determines the element of internationality. Pursuant to the aforementioned article, the parties to the contract must have their workplaces or, if they do not have workplaces, their habitual residence in different countries at the time of the conclusion of the contract in order for the CISG to apply to international sales contracts. The important issue here is not the nationality of the parties to the contract, but the fact that their workplaces are located in different states. Furthermore, it is regulated that the change of workplaces after the conclusion of the contract will be disregarded for the determination of the internationality element. The fact that the parties are located in different states is a necessary condition, but not sufficient on its own since the states where the parties to the contract are located must be a party to the CISG. The fact that the parties are resident in the contracting states of the CISG will ensure the direct application of the CISG, unless otherwise agreed. However, if the state where one of the parties is domiciled is a party to the CISG and the other is not, then CISG will not have a direct application. Neverthless, under the principle of freedom of contract, the parties may agree that the provisions of the CISG shall apply to the dispute between them.
It is possible to apply the CISG even if at least one of the states where the parties to the contract have their workplaces is not a party to the CISG. This means the indirect application of the CISG and will occur by a reference to the CISG in the conflict of laws rules of the state court where the dispute arising from the contract between the parties is heard. On the other hand, even if the conditions for the direct and indirect application of the CISG are met, it is possible for the parties to prevent the application of the CISG. This can be done directly, by adding an explicit provision to contracts the parties will conclude or indirectly by choosing the applicable law as the law of a country that is not a party to the CISG. Therefore, while assessing whether the CISG will be applied, it is as important whether the parties restrict the application of the CISG as whether they meet the direct or indirect application conditions.
b. Scope of CISG by Topic
The scope of the CISG as a subject can be understood with the limitations introduced in various articles. Although the term "goods" is used in the CISG, the definition of is not given. Due to the explanation in the commentary of the CISG, there is no doubt that the CISG will only apply to movable goods, but it is controversial whether products such as software, which do not have a material existence, will also fall within the scope of application of the CISG. However, since it is possible to establish dominance over such goods, scholars generally accept that are in the scope of the CISG.
The first of the limitations on the scope of application of the CISG appears in Article 2 of the CISG. Pursuant to the said article, the purchase of goods for personal, family or household needs is regulated as one of the sales excluded from the scope of the CISG. However, such sales will fall within the scope of application of the CISG if the seller did not know or should not have known at or before the time of the conclusion of the contract that the goods were purchased by the buyer for such use. Other types of sales excluded by Article 2 of the CISG are sales by auction, sales by execution or otherwise by authority of law, stocks, shares, investment securities, negotiable instruments or money, sales of ships, vessels, hovercraft or aircraft, and sales of electricity.
On the other hand, with Article 3 of the CISG, contracts that include a commitment to provide goods to be produced or manufactured are included within the scope of the CISG. However, the nature of the contract between the parties and the weight of the essential performances are determinative in this regard. The limitation introduced by Article 3 of the CISG is that the CISG will not apply to the contract between the parties if the buyer meets the substantial part of the material required for the production of the goods. If the buyer supplies all of the materials required for the goods subject to the contract, this would be considered as contact of work and CISG will not apply. However, if both the seller and the buyer supply materials for the production of the goods subject to the contract, it will be examined whether the material supplied by the buyer constitutes the essential part of the goods to be produced. If the material supplied by the buyer constitutes a substantial part of the goods to be manufactured, the CISG will not be applicable. In order to make a determination about the "substantial part" regulated under the CISG, different opinions have been put forward by the scholars, such as the economic value or quantity of the material supplied or the importance of its contribution to the goods to be manufactured. Similarly, in cases where the substantial part of the seller's performance consists of the provision of labor or any other service, the CISG cannot be applied. Therefore, whether the CISG can be applied to mixed contracts will vary according to the nature of the relevant contract, and in any case, the nature of the contract of sale will have to prevail.
CONCLUSION
In order for the CISG to be applicable to international sale of goods contracts, certain conditions must be met and these conditions are related to the domicile of the parties, the nature of the contract or the goods subject to the contract. In order for the CISG to be applicable, the parties must have their workplaces in different countries that are parties to the CISG, or the conflict of laws rules of the state court where the dispute arising from the contract is seen refer to the CISG, or the parties expressly choose to apply the CISG rules. The CISG is applicable only to movable goods and some types of goods and goods for personal use are excluded. In contracts where the sale of goods and rendering a service are both included, the weight of the essential performances will be determinative as to the scope of application.
REFERENCES:
Yalçıntaş, S., Viyana Satım Sözleşmesi'nin Kapsamı ve Sözleşme ile Türk Milletlerarası Satım Hukukunda Yaşanacak Değişiklikler. Banka ve Ticaret Hukuku Dergisi, 27, s. 285-286
Erdem, H. E., Milletlerarası Ticaret Hukuku ile İlgili Makaleler (2007-2016). On İki Levha Yayıncılık
Karaca H A, "CISG'in Milletlerarası Uygulama Alanı, İrade Serbestîsi ve Bazı Yorum Meseleleri" (2019) 39(1) PPIL 189.
Birinci Uzun T, "CISG Uygulamasında Tazminat Sorumluluğunun Sınırlandırılması" Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi Cilt: 16, Sayı: 1, 2014, s. 151-192
Gülel, İ, "Viyana Satım Sözleşmesinin (CISG) İfa Engelleri Sistemi Ve Bu Sistemde Alıcının Sahip Olduğu Haklar" TAAD, Yıl: 11, Sayı: 38 (Nisan 2019)
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