Vol 7 No 1 - Roger Williams University School of Law

Code might be adapted to cover information,29 the same questionis being asked globally (in case law, in academic literature and inthe legislative process) about the UNCITRAL Convention on theInternational Sale of Goods (CISG).30 Should the internationalequivalent of UCC Article 2, the United Nations Convention onthe International Sale of Goods, be modified to accommodate nongoodstransactions?31The scope of the CISG is limited, both in terms of the subjectmatter of the transaction (goods) and the structure of thetransaction (sales).32 Although the Convention is limited to goods,the term is not defined.33 Thus, there is the question of whetherthe term “goods” should be construed to apply to “virtual goods.”The argument has been made by legal commentators that the saleof software may fall under the Convention’s substantive sphere ofapplication, even though it is not tangible, with the qualificationbeing that the software be “off the rack” software i.e., not custommadesoftware or software that has been extensively modified tomeet the user’s needs.34 Recent judicial decisions have supported29. See Boss & Woodward, supra note 10; Boss et. al., supra note 10; Ritter, supranote 10.30. United Nations Convention on Contracts for the International Sale of Goods,art. 19(3), U.N. Doc. A/CF.97/18 (1980), available athttp://www.uncitral.org/english/texts/sales/CISG.htm (last visited Sept. 15, 2001)[hereinafter CISG]. For example, the question of whether to classify softwaretransactions as goods transactions arises in contexts other than the sale of goods, suchas their treatment under trade agreements within the WTO. See, e.g., Stewart A.Baker et al., E-Products and the WTO, 35 Int’l Law. 5 (2001); Joseph Tasker, Jr., TheInformation Technology Agreement: Building A Global Information InfrastructureWhile Avoiding Customs Classification Disputes, 26 Brook. J. Int’l L. 917, 947 (2001).31. For selected articles on the extension of the Convention on the InternationalSale of Goods to software see infra note 34. The question of whether informationtransactions are analogous to goods transactions is being debated in many areas inaddition to the area of general contract law. In WTO discussions, for example, thequestion is whether information fits within GATT (goods) or GATS (services).There is a second issue raised about the coverage of the CISG: whether itshould deal with electronic transactions—i.e., those contracts electronically created.The question of the medium of the communication, dealt with by the UNCITRALModel Law on Electronic Commerce, is distinct from the question of the nature of thesubject matter of the transaction.32. CISG, supra note 30, at Annex I. A third limitation in the application of theCISG is that it is inapplicable to consumer transactions, which currently represent asignificant proportion of international electronic commerce.33. Id. 21-22.34. See, e.g., Christina H. Ramberg, The E-Commerce Directive and Formation ofContract in a Comparative Perspective, 26 Eur. L. Rev. 449 (2001) (urging extension ofCISG to services and intangibles to deal with electronic commerce and noting that the