Q3-2a) What were the facts in C3-1? In particular, what kind of ‘materials’ did the buyer supply? b) Do you agree with the court’s holding that order-related drawings constitute ‘materials’ within the meaning of Art. 3(1) CISG? c) Compare the result in C3-1 with CISG-AC Opinion No. 4. Q3-3a) How did the court in C3-2 interpret the term ‘substantial part’ mentioned in Art. 3(1) CISG? b) How does C3-3 differ from C3-2 in interpreting ‘substantial part’? c) Compare the results with CISG-AC Opinion No. 4: in which ways can ‘substantial part’ be understood? Which interpretation seems better to you? Explain why. Q3-4 Could the parties agree on the applicability of the CISG in cases which would normally be excluded pursuant to Art. 3(1) CISG? Recollect what has been stated sub Article 1 CISG, II.3. Art. 3(2) CISG A3-2

MAP correctly notes, however, these goods were not the subject of the breach. Rather, Helen Kaminski is claiming a breach for goods ordered but not shipped. Helen Kaminski makes no claim that these goods were identified in the Distributor Agreement. For this reason, although I find that there is little to no case law on the CISG in general, and none determining whether a distributor agreement falls within the ambit of the CISG, Helen Kaminski’s rationale for why the CISG applies to the debate about the breach for goods ordered but not shipped is not supported by the facts of the case. The identification in the Distributor Agreement of certain goods – about which there is no claim of breach – is insufficient to bring the Distributor Agreement within coverage of the CISG when the dispute concerns goods not specifically identified in the Distributor Agreement. Thus, while the question does present a controlling issue of law over which there may be substantial disagreement, it does not appear that a determination of the issue would materially advance the litigation as Helen Kaminski does not maintain that the general Distributor Agreement – absent the February amendment which does not concern the goods at issue – is definite enough to constitute a contract for the sale of goods. [. . .]

VICTORIA M. GENYS, Blazing a Trail in the “New Frontier” of the CISG: Helen Kaminski v. Marketing Australian Products, Pty. Ltd. Inc.,

17 Journal of Law and Commerce (1998) 415 et seq. 18

[. . .] Furthermore, scholarly authorities on the CISG have stated that distributorship agreements can be thought of as simply a “framework agreement.” An agreement between the seller and a distributor acts as a mere “framework” when it governs orders and deliveries, but fails to require the distributor to deliver any specified quantity of goods. Framework agreements, without more, do not constitute “contracts of sale of goods” under Article 1; and therefore, are not governed by the Convention because they lack the definiteness requirement of offers under Article 14. In the present case, MAP argued that the distributorship agreement was merely a “framework agreement” to which the CISG does not apply. Although the United States’ District Court in Kaminski did not cite any section of the CISG, interpretive case or scholarly authority, it did stress the lack of definiteness in the agreement as a reason to find that the CISG did not apply to the transaction. Adding to the confusion on the applicability of the CISG to such framework agreements is the fact that if more definite orders are thereafter made and accepted, the framework agreement can “supply the detailed terms of the transaction to supplement or modify the provisions of the CISG.” Separate contracts made pursuant to the distributorship agreement would seem to be “contracts for sale” as the term is used in the Convention. Therefore, the CISG would apply to these separate contracts, whereas the issues of the distributorship agreement would be subject to other applicable laws. [. . .]