The meaning of “preponderant” in Art.

3(2) is considered primarily with reference to an

“economic value” criterion, which compares the relative value of the ‘goods’ and ‘services’
obligations provided by a seller [CISG-AC Op. 4, ¶ 3.3]. If a particular percentage of value were
the only criterion, then, as Commentators Schlechtriem and Schwenzer argue, it should
“‘significantly’ exceed 50%” [Schlechtriem/Schwenzer, ¶ 20, p. 71]. This approach is supported
in the case law [Waste Recycling Plant Case (ICC), ¶ 38(ii); Stove Case (Switz.) ¶ 2; Roofing
Materials Case (Switz.), ¶ 1.2.1].

“both the contractual documents and the circumstances of the formation of the contract have to
be taken into account” [Cylinder Case (Ger.)]. Accordingly, it is necessary to consider the
Parties’ correspondence before signing the SLA in order to ascertain the values of the ‘goods’
and ‘services’ components

the economic value comparison is a “starting point” that can be “supplemented or even revised
by the weight the parties themselves have attributed to each obligation”
[Schlechtriem/Schwenzer, ¶ 18, pp. 70-71]. An “overall assessment” of the “intention of the
parties as expressed in the documents and the formation of the contract” is therefore an aspect of
‘preponderance’ [CISG-AC Op. 4, ¶ 3.4]. Relevant considerations include the denomination and
content of the contract, the structure of the price, and the weight given by the Parties to different
elements [Id.]

120. The intentions of the Parties also show that the goods aspects are preponderant. The SLA’s
preamble does not mention any services, and the only obligation of CLAIMANT’S that is
mentioned is that “Buyer wants to acquire an additional third treatment room using active
scanning technology” [Cl. Ex. 6, p. 18]. Similarly, that RESPONDENT wrote to CLAIMANT to
enquire into the “purchase of a third treatment room using the active scanning technology” [Cl.
Ex. 4, p. 16] shows the “particular interest” that RESPONDENT placed on acquiring the goods
aspects of the contract, or, put another way, that the “essential aim of the contract” in acquiring
the goods is preponderant [Window Production Plant Case (Ger.); Alfred Dunhill (It.), ¶ 4.3].
121. By contrast, training is not mentioned in the SLA at all, indicating that the Parties did not
regard it to be a primary aspect of RESPONDENT’s performance [Cl. Ex. 6, pp. 18-20]. It might
be objected that this occurred for tax accounting purposes [Proc. Ord. 2, ¶ 27, pp. 61-62].
However, if CLAIMANT considered training to be as important a part of RESPONDENT’s
performance as the deliverance of the hardware and software for the third treatment room, they
would not have agreed for tax accounting reasons not to mention training as part of the scope of
RESPONDENT’s performance. Commentators Schlechtriem and Schwenzer list the other
service aspect, installation, as an obligation “of minor importance” [Schlechtriem/Schwenzer, ¶
13, p. 68]. Indeed, installation is only required of CLAIMANT because the primary intention of
the Parties is a sale of goods, and courts consistently hold that installation is qualitatively
ancillary and secondary to the sale of the primary good [Hotel Materials Case (ICC); Merry-go-
rounds Case (It.); Saltwater Isolation Tank Case (Switz.), ¶ 1(b); Sliding Doors Case (Switz.), ¶
2(I)(c); Windows Production Plant Case (Ger.), ¶ 1(b)].