b. Goods

The object of a sales contract has to be a good.


aa. Definition

Again, the CISG does not contain an express definition of the notion of goods. Goods are generally described as objects that are moveable at the time of delivery. This comprises objects such as raw materials that have to be harvested in order to be movable as well as objects that are to be installed at the premises of the buyer and thus become immovable after delivery. Goods are usually but not necessarily tangible (disputed).

Documents are treated as goods if they represent goods in a way that the owner of the documents is legally entitled to exercise control over the goods (e.g. documents of title). The sale of mere rights, however, is not covered by the CISG.

Software transactions are governed by the CISG when the buyer acquires the permanent right to use the software. Whether the software is standard software or individualized software is irrelevant since Art. 3(1) does not distinguish between standard and customized goods. Furthermore, according to the prevailing opinion there is no distinction between software transferred on corporeal storage devices and software directly transferred from one computer to another e.g. via the internet. Since the CISG was, however, drafted with tangible goods in mind, it has to be applied with care to software transactions and has to be adapted where necessary.


bb. Excluded Goods

Art. 2 lit. d-f exclude the sale of certain goods from the CISG:

This Convention does not apply to sales:


(d) of stocks, shares, investment securities, negotiable instruments or money;

(e) of ships, vessels, hovercraft or aircraft;

(f) of electricity.

In particular, the exclusion in Art. 2 lit. d does not comprise documents of title as they represent the respective goods. The fact that the stocks or shares of a company cannot be sold as such under the CISG by way of a share deal of course does not prevent the sale of the company’s assets under the CISG by way of an asset deal.

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Last modified: Thursday, 22 October 2015, 4:38 PM