crops are ‘goods’ within the meaning of the CISG, even if, prior to delivery, they are still literally rooted to the ground. Furthermore, the goods may be solid or liquid. Generally, they can also be gaseous (see, however, the exclusion of elec-tricity, Art. 2(f) CISG). Still, there are a number of questions left open. In general, the CISG has been drafted for the sale of tangible goods; the terms ‘delivery’, ‘taking over’, ‘passing of risk in transitu’, etc. demonstrate this. In view of technological development, whereby more and more non-tangible products, such as computer software, are sold, it is important to decide whether these kinds of contracts fall within the scope of the CISG as well. Case law development can be observed, in particular, with regard to contracts for the supply of software. Please refer the following case excerpts in this respect. C1-2 : Oberlandesgericht Köln (Germany), 26 August 1994, CISG-online 132

doi:10.4324/9780203945445-31

Chapter

crops are ‘goods’ within the meaning of the CISG, even if, prior to delivery, they are still literally rooted to the ground. Furthermore, the goods may be solid or liquid. Generally, they can also be gaseous (see, however, the exclusion of elec-tricity, Art. 2(f) CISG). Still, there are a number of questions left open. In general, the CISG has been drafted for the sale of tangible goods; the terms ‘delivery’, ‘taking over’, ‘passing of risk in transitu’, etc. demonstrate this. In view of technological development, whereby more and more non-tangible products, such as computer software, are sold, it is important to decide whether these kinds of contracts fall within the scope of the CISG as well. Case law development can be observed, in particular, with regard to contracts for the supply of software. Please refer the following case excerpts in this respect. C1-2

Chapter

crops are ‘goods’ within the meaning of the CISG, even if, prior to delivery, they are still literally rooted to the ground. Furthermore, the goods may be solid or liquid. Generally, they can also be gaseous (see, however, the exclusion of elec-tricity, Art. 2(f) CISG). Still, there are a number of questions left open. In general, the CISG has been drafted for the sale of tangible goods; the terms ‘delivery’, ‘taking over’, ‘passing of risk in transitu’, etc. demonstrate this. In view of technological development, whereby more and more non-tangible products, such as computer software, are sold, it is important to decide whether these kinds of contracts fall within the scope of the CISG as well. Case law development can be observed, in particular, with regard to contracts for the supply of software. Please refer the following case excerpts in this respect. C1-2

ABSTRACT

The procurement of an individual data processing system regularly includes the delivery of standard software, which constitutes an element of a purchase contract, and the development of individual software according to the special needs of the client which includes an element of a contract of manufacture. Furthermore, the contractor must carry out all tasks arising in the course of the project and requiring speciﬁc computer knowledge which form elements of a mandate and a contract of manufacture. With regard to the nature of further possible services, the Court refers to the explanations regarding the procurement of standard software [. . .]. [. . .] The purchase of software as well as the joint purchase of software and hardware constitutes a sale of goods that falls within the ambit of the CISG [. . .]. [. . .] Both Switzerland and Austria have ratiﬁed the CISG [. . .]. Accordingly, the contract in question is governed by the CISG. [. . .]

b) Comparison with provisions from other legal systems

UCC 2003 Amended Version § 2-103(1)(k). ‘Goods’ means all things that are movable at the time of identiﬁcation to a contract for sale. The term includes future goods, specially manufactured goods, the unborn young of animals, growing crops, and other identiﬁed things attached to realty [. . .]. The term does not include information, the money in which the price is to be paid, investment securities under Article 8, the subject matter of foreign exchange transactions, or choses in action.