International Delivery Contracts and CISG
In practice there are again and again situations in which CISG is applicable on international delivery contracts concluded by German corporations. Basis is that CISG is part of German law (since 1991) and is applicable if the contracting parties have not excluded it willingly. The consequences are significant for the regularly German seller: Especially, the deadlines by which the buyer has to check the goods acquired and by which he has to notify damages or differences are a disadvantage for the seller. Whereas with German commercial code the buyer has to check the goods immediately and has to notify damages or differences at once (by which the seller knows in short term whether he will get his money) these terms are up to one month each according to sec. 38 and 39 CISC depending on the respective target country. Thus, it can take two months’ time until the seller knows whether the price concluded will be paid or not. In case of special circumstances these terms can be extended even longer. The disadvantages for the seller are massive.
Therefore, it has to be recommended that the German seller shall exclude the application of CISC and declares that this is the precondition of a contract with the foreign buyer. The parties have the right to chose freely the contractual law so that the exclusion of CISC is possible at any time. It is even possible to renounce on private law totally and apply own rules on the delivery or warranty questions because private law is not obligatory for contracting parties (apart from extreme exceptions, e.g. racketeering). The construction of such a contract should be given to a competent attorney, however.