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Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199

BOOK REVIEW

THE INTERPRETIVE CHALLENGE TO UNIFORMITY

Les Premières applications jurisprudentielles du droit uniforme de la vente internationale.

Claude Witz. Paris: Librairie Générale de Droit et de Jurisprudence.
1995.

Reviewed by Vivian Grosswald Curran [*]

Introduction

Uniformity is a goal expressly articulated in Article 7(1) of the U.N. Convention on Contracts for the International Sale of Goods ("CISG"): "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade." Uniformity of application through uniformity of interpretation has become something of a sacred mission to many CISG scholars in this still embryonic stage of CISG case law development.[1] The challenges to uniformity of interpretation are, however, both formidable and numerous. They are embedded in the inevitable problems of interpretation itself, for, even within a given judicial system, uniformity of interpretation remains at best an unrealized ideal. Judges sometimes [page 175] consciously sacrifice uniformity to perceived needs of justice in a pending case. Even when judges have no intention of sacrificing uniformity, however, the transmutation of an interpreted norm from precedent to pending case alters the meaning of that norm, however subtly, precluding uniformity of application.

This problem is compounded manyfold with the CISG, a written text which is to be applied in various official and unofficial language versions,[2] by courts in judicial systems as diverse as are the common and civil law systems. The difficulties of linguistic translation merge with those of different legal traditions, cultures and practices, such that concepts as basic as those of "trial" or of "contract" can have different meanings and significances at their most fundamental levels in the various legal and linguistic communities of CISG Contracting States.

Many conundrums are associated with the goal of interpreting the CISG uniformly, including what constitutes the appropriate source of legal authority to which a court should look when applying the CISG. United States judges will tend to seek authoritative guidance from the texts of prior judicial or arbitral decisions, whereas European judges will be inclined to rely far more on academic commentary. Claude Witz's book on the first judicial applications of the CISG, which might have been subtitled "or the need for judicial uniformity," should be seen in the European legal tradition of valorizing la doctrine, or academic commentary, as a source of law. It serves both as a retrospective assessment of the first CISG decisions and as normative prescription directed to future CISG interpretation. Indeed, his analysis of selected precedents contains a critique clearly aimed at disseminating CISG case law in a manner capable of instructing a receptive judge or arbitrator as to which aspects of precedential authority merit being followed and which are counter to the letter and/or spirit of the CISG.

His scrutiny of case law and his advocacy of a more widespread dissemination of judicial decisions to inform the opinions of Contracting State judges in their task of applying the CISG uniformly suggest [page 176] the possibility that an increase in uniformity may yield a hybrid global legal system from a methodological perspective: i.e., that judges in the civil law countries may come to approximate their common law counterparts in increasing their reliance on precedent as a source of binding authority, while judges in common law jurisdictions may come to approximate their civil law counterparts in seeking elucidation of relevant legal principles in the explanation and critique of scholarly writing on the CISG.

Such hybridization would appear to be inevitable, at least to some extent, because common law decisions, standing independently from commentary, will be readily accessible to civil law judges. Conversely, the more cryptic style of many civil law decisions, and their publication in the context of explanatory and normative scholarly commentary, will result in common law judges understanding civil law cases through the filter, and, consequently, under the influence, of scholarly commentary. Moreover, the directive in Article 7(2) that "[q]uestions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based" evokes the typical civil law interpretive methodology with respect to codes, and underscores the importance of commentary. Since one of the traditional tasks of civil law scholarly commentary is to identify the underlying principles, the crucial role of commentators in interpreting the CISG is implicit in Article 7(2) of the CISG.

Thus, one fascinating result of the substantive internationalization of the law of sales may be a concomitant unifying influence on the disparate methodological approaches of the Contracting States. Militating against this theory, however, is the possibility that their legal culture and tradition may lead civil law judges to insist on considering precedents only with accompanying scholarly commentary. As long as there continue to be few common law decisions applying the CISG, it is likely that such commentary will exist for most common law precedents.

The growing body of CISG scholarship with the conscious objective of promoting uniformity of application by disseminating information about precedents, appears to promote common law methodology by advocating attention to precedents as a source of legal authority. Paradoxically, however, it simultaneously undermines common law methodology by situating the dissemination of precedents exclusively in a context of scholarly commentary. On the other hand, if CISG case law proliferates to the extent that it becomes impossible to find commentary [page 177] for common law decisions, the substantive independence of common law court opinions will enable civil law judges to rely on their own interpretations of common law precedent, without reference to commentary, resulting in a modified civil law tradition, embracing the common law characteristic of applying precedents without necessary or frequent reference to commentary.

Claude Witz's new book, appropriate for both practitioners and scholars, embodies in its very form the multi-faceted tasks faced by those who seek to promote knowledge about the CISG and uniformity of application. It contains a bibliography of important CISG scholarship to date (pp. 7-8); four appendices (pp. 119-165), containing, respectively, a list of the Contracting States, with dates of ratification; four CISG court opinions, one from the United States District Court for the Southern District of New York, one from the Cour d'appel de Paris, one from the Cour de cassation of France, and the last from the Oberlandesgericht Hamm, spanning from 1992 to 1995; a list of CISG judicial and arbitral decisions, identifying, among others, the parties, date and subject-matter, and where the case and commentary, if any, can be found; and an index to CISG articles cited in the book.

The book is particularly admirable in its thoroughness, given the number of languages in which the relevant materials are written and the number of foreign journals in which they appear.[3] Its footnotes (as well as the bibliography of the books and treatises in the Appendix noted above) constitute a valuable resource of primary and secondary CISG materials, covering Europe, the United States, England and Latin America, and explaining for the novice practitioner or scholar in CISG analysis both Unilex, the computer data base, and CLOUT (acronym for Case Law on Uncitral Texts), the collection of case law summaries compiled under the ægis of UNCITRAL (acronym for U.N. Commission on International Trade Law) [page 178] by national government representatives (p. 16).

In the Introduction (pp. 15-20), Witz sets forth his goal of helping to realize the CISG objective of uniform international application.[4] He emphasizes in this context the need for those who apply the CISG to consider the precedents which have emanated from every other signatory state. Witz attributes the striking differences in the number of CISG applications among various signatory states both to lethargy on the part of courts in applying new conventions, and, on the other hand, with respect to countries like Germany and Holland, which apply the CISG with the greatest frequency, to ample prior experience in applying previous conventions that unified the laws of sales. Unlike France, those countries had ratified the two Hague Conventions which laid the foundation for the drafters of the CISG (p. 18).[5] In contrast to judges, however, arbitrators have applied the CISG far more readily, including before it went into effect (pp. 18-19), presumably because international arbitrators are more accustomed and more favorably inclined to the application of international standards than are national judges.

Through an analysis of selected cases, the book signals the significant trends in the application and interpretation of the CISG, as well as the thornier issues surrounding uniformity of integration. The following discussion will endeavor to summarize Witz's commentary on CISG case law.

The Preliminary Application of Private International Law

In the majority of cases applying the CISG, the CISG is reached through the preliminary application of international law. This is of particular interest in light of the fact that Article 1(1)(b) was the subject of much controversy, leading the drafters to decide to permit Contracting States to opt out of it.[6]

Witz confronts the problem of courts inappropriately applying or failing to apply the CISG, as where (1) a German court failed to apply the CISG in a 1989 case [LG Bielfeld 23 June 1989],[7] applying instead the 1964 Hague Convention relating to a Uniform Law on the International Sale of Goods, despite the CISG's having replaced that Convention at the time the contract was concluded [8] (p. 25); (2) another German court in a 1993 case [OLG Düsseldorf 2 July 1993] [9] incorrectly applied the CISG to a dispute involving a U.S. seller and a German buyer, simply ignoring the fact that the U.S. has opted out of Article 1(1)(b), precluding a legitimate application of the CISG by way of private international law (p. 25 ); and (3) the Paris Court of Appeals in 1992 [Cour d'appel de Paris 22 April 1992] [10] erroneously applied the CISG where private international law led to its application, but where the parties did not have their places of business in different states. The court thus ignored the preliminary condition of different states set forth in the first sentence of Article 1 (pp. 28-31).

While the failure to apply and the inappropriate application of the CISG produce undesirable precedents, they do not present conceptual difficulties. More complicated is the situation, also arising under Article 1(1)(b), in which an action is brought in a country whose conflicts of laws rules designate the law of a CISG Contracting State, but where the latter's private international law would require the court to apply the law of a country which has not ratified, and therefore would not apply, the CISG. Witz suggests that judges in Contracting States should not apply the national law of a non-Contracting State in such cases, on the ground that CISG Article 1(1)(b) refers to substantive law, to the exclusion of conflicts of laws rules (pp. 26-29).[11]

Defining "Goods" and "Sales"

Witz notes with approval that judicial decisions concerning the definition of "goods" within the meaning of the CISG have relied not only on scholarly commentary, but also on the definition reached by prior courts in various Contracting States; namely, that contracts for [page 180] intellectual services are not governed by the CISG (p. 32)[OLG Köln 26 August 1994],[12] and that shares in the capital of a company similarly are not within the purview of the CISG [Arbitral proceeding, Hungarian Chamber of Commerce 20 December 1993] [13] (pp. 33-34).

Issues as to whether a transaction constitutes a sale within the meaning of the CISG frequently arise where a contract deals with goods not yet produced, especially where a party also has a duty to furnish labor or other services (p. 34). Contracts for furnishing goods to be manufactured or produced generally are deemed to be within the CISG's scope, except where the buyer "undertakes to supply a substantial part of the materials necessary for such manufacture or production."[14] Witz notes that the drafters had in mind situations in which the client furnishes the primary materials of the goods to be manufactured or produced, but in that practice the manufacturer tends to furnish the primary material, and the CISG governs, with no need to distinguish among, respectively, the economic value of the materials used and either the work involved in the production or manufacture of the goods or the extent to which the client may have played a role in developing the concept of the goods (p. 34).

Questions Not Governed by the CISG

Section III of the book concerns maters not subject to the CISG. Article 4 specifies that the CISG "is not concerned with . . . [t]he validity of the contract . . . ." A hotly disputed area among academics, but one which has arisen only once in CISG case law, concerns mistakes about a substantial characteristic of the goods, and whether that [page 181] issue goes to the validity of the contract, or, rather, to lack of conformity.

Witz is of the view that the CISG deals exhaustively with the consequences of lack of conformity of goods. The buyer has a number of remedies, the conditions and realization of which are strictly regulated, such that the CISG would be undermined if the buyer could avoid the contract for an error concerning a substantial characteristic of the goods (p. 38). Thus, a contract would only be avoidable for nonconformity as the CISG defines it. Witz rejects the view, for example, that a buyer should be able to avoid the contract where the error claimed is that the goods proved not to be amenable to resale, even if the obstacle to resale were a regulation or ordinance banning the sale of the goods or products in question (p. 39) [LG Aachen 14 May 1993]. [15] The problem, however, is that one can argue that such a contract is invalid, and, therefore, that Article 4 removes the issue from the CISG's scope.

Where a German court adjudicated two issues pursuant to the CISG, Witz notes a violation of Article 5 in the court's deciding not only a claim for the amount expended on repairing a machine sold under an international contract, but also a claim regarding injuries caused by the machine (pp. 39-40) [OLG Düsseldorf 2 July 1993]. [16]

Other issues arise from the CISG but are not resolved by it. Indeed, Article 7(2) specifies that

"[q]uestions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

The CISG envisages two sorts of lacunae: one where the CISG governs the issue, but does not specify a resolution, and the other where the CISG does not govern. Witz sees the particular role of CISG commentators as being to exert a restraining influence on the inclination of judges to bypass the CISG's underlying principles in order to proceed to national laws (p. 42).

The most common internal CISG gap which judges have had to fill concerns interest rates. The general trend has been to supply national interest rates, a tendency of which Witz is not critical, given the [page 182] apparent absence of a related underlying CISG principle to resolve the matter (p. 42).[17] He does criticize, however, an arbitral ruling for looking to national law rather than governing CISG principles with respect to the issue of the joint and several liability of the two signatories to a sales contract (pp. 42-43). He also criticizes a Stuttgart court which valorized a buyer's argument that the CISG should be considered in conjunction with German national law with respect to the issue of the timing of the buyer's giving notice of alleged lack of conformity of the goods. [LG Stuttgart 31 August 1989] [18] Witz reasons that the court was in error in failing to adjudicate solely on the basis of the CISG, where Article 38 and 39 controlled, given that they do not leave any gaps which might justify recourse to domestic law (p. 43).

Contractual Exclusion of the CISG

Article 6 explicitly defers to the will of contracting parties who agree to eliminate or modify the application of the CISG to their contracts.[19] Contract provisions stating that the law of a Contracting State rather than the CISG will apply, or that the law of a Contracting State with respect to domestic sales will apply, have not proved controversial (p. 44). Less clear are contract provisions which designate the law of a Contracting State which has not opted out of Article 1(b) by way of the reservation in Article 95.[20] In other words, there have been differences of opinion as to whether the CISG or national law governs where the parties' contractual choice of law provision merely designates the law of a Contracting State, and does not explicitly exclude the CISG. Article 6 does not address this issue.[page 183]

Witz signals the drafters' intent that the CISG might be excluded by tacit agreement of the parties (p. 44).[21] He also points out that the validity of an implicit exclusion of the CISG nevertheless depends on the parties' intent to exclude the CISG being certain, such that in case of doubt as to the parties' intent, the CISG will apply. Witz concludes that, consequently, "the application of the CISG is not subordinated to the intention of the parties. It is the 'opting out' rather than the 'opting in' system that the CISG drafters retained" (p. 44).[22] In support of this conclusion, Witz refers to three decisions in which clauses providing for the application of the laws of a specified country were deemed to require application of the CISG where those countries were Contracting States (pp. 44-45). It seems clear, however, that the reasoning which led to the application of the CISG in all three situations was that, in choosing the law of a Contracting State, the parties were choosing the CISG, since the Contracting State's law required the application of the CISG.

Thus, the arbitrator in one of those cases stated that "since January 1, 1988 the French law of international sales is the U.N. Convention on Contracts for the International Sale of Goods . . . ."[23] Moreover, the arbitrator explicitly reasoned that "the parties' intent to choose French law corresponds to the provisions of the CISG, an integral part of their countries' respective national laws."[24] The contract choice of law clause specified that the arbitrator was to apply "the substantive laws of France." Accordingly, the arbitrator applied the CISG only in its substantive scope. Witz criticizes the arbitrator for reasoning that the parties' agreement to be governed by French national law mandated the application of national law to all questions not specifically regulated by the CISG, such as matters of proof, general contract theory and, if need be, internal sales law (p. 45) [ICC Arbitration No. 6653 of 1993]. [25] Witz emphasizes in [page 184] this context the CISG principle that the CISG is to apply unless not even a general underlying CISG principle exists that can offer guidance.

The arbitrator's reasoning would seem to emanate from Article 6's deferring in matters of choice of law to the contracting parties, whereas Witz's reasoning would seem to derive from an assumption that the parties' intent does not take precedence over the CISG, despite the language of Article 6.[26] The arbitrator's decision certainly can be criticized for giving more extensive application to Article 6 than is warranted. Witz's criticism, however, suggests that he may accord less weight to the ability of contracting parties to exclude the CISG in whole or in part than the spirit of the CISG and the language of Article 6 would allow.

Courts have also confronted the issue of whether the CISG applies when the parties have stipulated that the law of a Contracting State applies, but when the contract was concluded before the CISG had taken effect in the country in question. Witz cites with approval a German court dealing with a contract that provided for French law to govern. The court did not apply the CISG to a distribution contract because that contract was concluded before the CISG had taken effect, but did not apply the CISG to subsequent derivative sales contracts that had been formed after the CISG came into effect in France. The opinion noted that the CISG was in effect when the delivery took place. [OLG Koblenz 17 September 1993]. [27] Witz correctly tempers his approval by commenting that the court should have measured the applicability of the CISG as of the time of the conclusion of the contract, rather than the time of delivery (pp. 46-47).

The Parties' Identity

Even the identity of parties has been the subject of controversy, as in a German case in which A, an individual, made a sizable order for clothing from an Italian seller, giving the seller his card, on which his name appeared above that of "AMG Import-Export. [LG Hamburg 26 September 1990]." [28] While no such business existed, a similarly denominated one did ("AMG GmbH"). A [page 185] later declared that he had been ordering on behalf of the latter, although he did not reveal this at the time of the sale. A offered the seller a letter of exchange drawn on AMG GmbH, which the seller accepted. The seller later sued A when payment was not made on the letter (pp. 51-52). The court had to decide if the Italian seller's contract was with A, or with the company on whose behalf A now claimed to have contracted. The judges applied the CISG, relying on Article 8, and reasoned that the dispositive issue was what the seller believed, rather than whether A in fact was legally able to bind AMG GmbH (p. 52).[29] The judges concluded that national law was applicable to the issue of deciding to what extent A's representations bound the company(ies), but that the CISG applied to the determination of the extent to which A had bound himself (p. 53). Similarly, in a 1992 arbitration case, the arbitrator decided that the questions of whether the representative of an Austrian seller had the right to conclude the contract should be adjudicated under Austrian national law (p. 53) [ICC Arbitration No. 7197 of 1992]. [30]

In a German decision in which a German company claimed that it intended to contract with one company, but concluded a contract with another due to a misunderstanding, the German plaintiff contested the existence of a contract due to error about the identity of the other party. Witz signals that this case involved not merely a questions of lack of consent, but also of the very existence of a contract, and criticizes the judges for not applying Article 8 before deciding that a contract had been formed, since contract formation is governed by the CISG (pp. 53-54).

Divided Views on Acceptance and Counter-offer

While Article 19 has not given rise to many court decisions, it has been the subject of some controversy. In a 1992 case, the Paris Court of Appeals adjudicated a situation in which a French company had ordered electronic components from a [page 186] German company at a price previously indicated by the supplier, but which was to be subject to revision in light of a drop in the market [Cour d'appel de Paris 22 April 1992]. [31] On receiving the order, the German company confirmed its receipt, stated in writing that the prices were subject to modification in accordance with either a rise or fall in the market, but signaled that it could not proceed with the order at the present time, and that it would inform the buyer as soon as it was able to accept the first orders. After an ensuing telephone conversation, the German company sent a telex to the buyer, modifying the order with respect to price and amount of goods to be delivered per shipment. Two weeks later, the French company modified the order yet again. Five days later, the German company declared that it could not accept the last modification with respect to short-term deliveries.

Relying on Article 19, the French company claimed that no contract had been formed, but the court interpreted the first letter from the German company, confirming receipt of the order, as an acceptance of an offer, reasoning that the new terms set forth by the German company did not materially alter the terms of the order.[32]

Witz criticizes the court's opinion for ignoring Article 19(3) which would appear to support the French company: "Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially." Witz notes that the true issue of interest is whether Article 19(3)'s presumption of material alteration is of a rebuttable or irrebuttable nature, a question which the court ignored by resolving the issue by reference to Article 19(2).[33] Witz laments the court's opinion, not for the result reached, but for the court's failure to take more seriously its duties as international precedent-maker. (p. 61).

The Price

Two of the articles dealing with price, Articles 14 and 55, seem to be mutually contradictory. On the one hand, Article 14 section 1 stipulates [page 187] that, to be "sufficiently definite," an offer must be "expressly or implicitly fix[] . . . or make[] . . . provision for determining the . . . price." Article 55, on the other hand, provides that when

"a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned."

Witz limits his discussion of whether a determinable price is a condition of an offer to an analysis of the Hungarian case, Pratt & Whitney v. Malev,[34] which dealt with that issue. Witz notes in this context that in another case brought in Hungary, the court resolved the issue by reference to Article 9(1) (p. 62) [Fovárosi Biróság 24 March 1992]. [35] In that case, by taking into account the parties' former usage, the court found that the parties did fix the quantity, quality and price of the goods, notwithstanding their contract's silence. Witz concludes that Article 9 section 1 thus allows for flexibility in the application of Article 14 (p. 63).

Witz's criticism of the Malev case is in keeping with criticism which appeared in an earlier volume of this journal.[36] Malev involved negotiations between Pratt & Whitney, the U.S. manufacturer of airplane engines, and Malev, a Hungarian company. Malev wanted to buy engines for, inter alia, use in planes it intended to buy from Airbus or Boeing. Malev engaged in simultaneous negotiations with Airbus, Boeing and Pratt & Whitney. The type of engines it would need from Pratt & Whitney would depend on whose Companies' planes it would buy. On November 9, 1990, Pratt & Whitney proposed an engine denominated PW4056 if Malev were to buy Boeing planes, and an engine denominated PW4156/A if Malev were to buy Airbus planes. On December 14, 1990, Pratt & Whitney gave Malev a document entitled "Purchase Agreement," consisting of an offer to sell engines for two planes with an option to buy a third engine in case it bought a third plane; an offer to sell a spare engine, with an option to acquire an additional [page 188] such engine. The price varied according to the kind of plane. The "Purchase Agreement" specified prices for the spare engines and for Airbus jet engine systems, but specified only the price of spare engines for the Boeing system. The offer also specified that Malev's acceptance depended on the agreement of the Hungarian and United States governments. Additionally, it contained an expiration date for the offer.

On December 21, Pratt & Whitney added another model of engine for the Boeing planes, without specifying a price. Both companies drafted a letter on that day, stating that Malev had chosen the engines from the PW4000 series. The letter expressly stated that it was an acceptance of the offer of December 14. It was signed by the CEO of Malev and telecopied to Pratt & Whitney's Vice-President. On March 25, however, Malev informed Pratt & Whitney in writing that it would not purchase the PW4000 engines. Pratt & Whitney, relying on the agreement of December 21, declared that Malev had an obligation to notify Boeing of its choice of Pratt & Whitney engines without delay, and to make its decision public.

When Malev did not accede to this demand, Pratt & Whitney brought an action against Malev in Budapest, requesting the court to hold that Malev was legally bound by a valid contract and that Malev was in breach of contract. Malev argued that the offer had been ineffective for lack of definiteness, that Pratt & Whitney's proposal had not stated an intent to be bound, and that the letter of December 21 had not been an acceptance, but, rather, a statement of an intent to be bound at a later date (pp. 63-65).

The lower court ruled in favor of Pratt & Whitney [Fovárosi Biróság 10 January 1992], holding that the parties had formed a valid contract pursuant to the CISG. Pratt & Whitney originally had relied on the laws of Connecticut, and it was Malev which argued that the CISG governed.[37] Pratt & Whitney subsequently conceded that the CISG governed.

The Hungarian lower court reasoned that the proposal of December 14 constituted an offer because it satisfied the conditions of Article 14. The court rejected the defendant's argument that the proposal violated Article 14 section 1 by failing to specify a definite price. The court found sufficient specification because Pratt & Whitney had given a price for each of the three series of engines. The court further found that Malev's letter of December 21 constituted an acceptance. The court deemed that Malev's request that its acceptance remain confidential until the parties could make a joint public announcement did not [page 189] contradict the existence of a legally binding acceptance, and, more specifically, did not contradict the plaintiff's offer, according to which the buyer was to authorize the seller to have an announcement in the press appear.

Witz's approval of the lower court opinion is not without qualification, however, with respect to the court's failure to refer to Article 8 when analyzing the clause requiring the approval of the Hungarian and United States governments (p. 66).[38] Instead, the court referred to Article 23, which provides that "[a] contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention."

Witz surmises that the Hungarian judges were aware that Article 23, dealing exclusively with contract formation, was not relevant to the issue before the court, since the court later referred to the Hungarian Civil Code with respect to conditions, stating that the CISG has similar provisions (p. 66). The judges then apparently proceeded to try to interpret the condition in accordance with the CISG, pursuant to which the point of departure is that an agreement is deemed to have been concluded in accordance with the relevant provisions of the CISG when the acceptance of an offer takes effect, i.e., when the offeror receives notice of the acceptance (Art. 18(2)). Witz signals that, once again, the judges appeared to confuse issues as to the date of contract formation with issues concerning the effective date of contractual obligations, which can be subject to conditions (p. 66). Witz further notes that Article 23's irrelevance in this context was confirmed by the interpretation of the Hungarian judges relative to identifying the plaintiff's intent, i.e., that Pratt & Whitney had foreseen the need for the Hungarian government's approval, not to make the conclusion of the contract dependent thereon, but rather to avoid a possible violation of Hungarian law.[page 190]

The lower court's decision was reversed by the Supreme Court of Hungary [Legfelsobb Biróság 22 September 1992]. [39] The Supreme Court held that Pratt & Whitney had not met Article 14 section 1's requirement of definiteness with respect to prices, and that the "Purchase Agreement" did not constitute an offer. The Court also made clear that it would not have deemed Malev bound even if it had found the "Purchase Agreement" to qualify as an offer, for the Court agreed with Malev's argument that the Hungarian company had never given an acceptance, but, rather, only a statement of intent to conclude a contract at a later date.

Witz criticizes the Hungarian Supreme Court for making no reference to Article 8, pursuant to which the parties' intent should have been examined (p. 67). Witz finds the Court's opinion less than straightforward inasmuch as the central issue before it was not, as the Hungarian High Court's opinion would suggest, whether the price was sufficiently definite. The real issue was the legal scope of the contract (p. 68). He notes that the radically different analytical approaches to analyzing the case on the part of the lower and high courts give one cause for reflection.[40]

A French court of appeals rendered another disappointing opinion in a case involving a buyer who tried to avoid a contract by claiming that French domestic sales law applied, rather than the CISG [Cour d'appel de Paris 22 April 1992]. [41] In that case, the contract specified a price which was to be subject to modification, depending on a rise or fall in the market. Since French national law deems contract clauses void if they leave the price up to one of the parties, the buyer argued that French law applied by way of CISG [page 191] Article 4. The Paris Court of Appeals did not address directly the issue of how French national law compared to the CISG with respect to the price.

The court initially seemed to agree with the buyer, but, in its discussion of the parties' intent, concluded that the parties' agreement as to a possible price modification, due to a rise or fall in the market, did not render the price indeterminable. Witz criticizes the court for its failure to indicate whether it found that the price was determinable pursuant to French national law or to Article 14 of the CISG (p. 69).

France's highest court similarly did not address the jurisprudential issue, holding that, in the absence of an agreement as to the existence of a rise or fall in the market, the buyer had accepted to be bound to the price initially agreed upon, and in fact billed [Cour de Cassation 4 January 1995]. [42] Witz regrets the court's lost opportunity to rule once and for all that French internal law with respect to price is inapplicable to sales governed by the CISG, and that France's more stringent internal laws do not in any way vitiate the existence of a valid offer pursuant to the CISG, provided that, pursuant to Article 14, the "proposal . . . expressly or implicitly fixes or makes provision for determining the . . . price" (p. 70).

Proof of Contract

The CISG runs counter to some national laws in not requiring a writing: "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses."[43] Witz notes in particular the contrast between Article 11 and the common law parol evidence rule (p. 71), according to which the writing is deemed to set forth the entire agreement and intent of the parties. Witz notes that the parol evidence rule is incompatible with both CISG Articles 11 and 8 section 3. Article 8(3) provides that, "[i]n determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."[page 192]

Two U.S. decisions have reached contradictory results with respect to whether the CISG excludes the parol evidence rule [Filanto v. Chilewich (U.S. District Court) 14 April 1992 and Beijing Metals v. American Business Center (U.S. Circuit Court of Appeals) 15 June 1993]. [44] The Filanto court held that the CISG excluded the parol evidence rule. The following year, however, the Fifth Circuit held to the contrary in Beijing Metals, a case in which the parol evidence rule was dispositive of the outcome. Despite Article 11's seemingly clear implication that a contract cannot be disregarded solely on the basis that its formation was oral, the court held that the parol evidence rule applied independently of whether the CISG applied (p. 72).[45]

Witz does not mention the additional potential for conflict between Article 11 and the Statute of Frauds, which, under the Uniform Commercial Code, prevents the enforcement of contracts for the sale of goods where the price exceeds $500, unless the party against whom the claim is brought has signed a writing. A recent Oregon case has considered this issue in which the court held Oregon's U.C.C. section 2-21(2) to bar a claim based on an oral contract, unless the CISG was applied [GPL Treatment v. Louisiana Pacific Corp. 12 April 1995]. [46]

Commentators currently are divided between two views of the effect of Article 11. According to one view, the second sentence of Article 11 ("It [i.e., the sales contract] may be proved by any means, including witnesses") nullifies any rule purporting to hierarchize methods of proof (p. 73).[47] According to the second view, if following national procedure would mean that a contract cannot be proven, because national procedure bars the only method capable of proving contract, then CISG Article 11 takes precedence. National law is excluded because it would for all intents and purposes otherwise function as substantive law. Conversely, however, if the national rule in question would merely [page 193] facilitate proving the contract, without preventing proof by other means, then the national rule remains in effect (p. 73) [LG Memmingen 1 December 1993]. [48]

Judicial Interpretation In Keeping With Commentary

The language of Article 12 would appear to allow an exception to Article 11's liberality as to the form of a contract when either contracting party has its place of business in a state which has made a reservation under Article 96:

"Any provisions of Article 11, Article 29 or Part II of this Convention . . . that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in a Contracting State which has made a declaration under Article 96 of this Convention. The parties may not derogate from or vary the effect of this article."

Witz notes that a majority of scholars are of the opinion that the Article 12 exception should be effective only if the rules of private international law designate the law of a state which has opted for the Article 96 reservation (p. 74).[49] At least one court has followed this approach [Fovárosi Biróság 24 March 1992]. [50] In that case, a German seller and a Hungarian buyer appeared before a Hungarian court. The buyer tried to avoid payment for goods which had been ordered by telephone, arguing that national Hungarian law required contracts to be in writing. The court applied conflicts of laws rule, which designated the state in which the seller had its place of business when the contract was concluded. The Hungarian [page 194] court consequently based its decision on German law, and gave full effect to the contract, because German law was the CISG (pp. 74-75).

The Effects of Sale

Case law already includes numerous decisions dealing with the indirect consequences of the determination of the place of performance of contractual obligations. Witz notes, among others, that the place where the price is to be paid determines the currency to be used where the contract itself is silent as to currency (p. 80). Thus, in a case brought before a German court, where Italian wine was purchased by a German buyer, the court held that payment had to be made in Italian currency where the contract did not specify the currency, because the price had to be paid in the currency in use in the place where the money changed hands, and, pursuant to the CISG, Article 57 section 1(a), that was the seller's place of business.[51]

Where a court must determine jurisdiction, the CISG is interpreted in conjunction with the Brussels Convention of 1968 (p. 80). Article 5 section 1 of the Brussels Convention provides that the defendant can be sued where the obligation which is the basis of the claim was, or should have been, performed. In the absence of a community or contractual definition of the place of performance, the presiding judge must decide the place of the contractual obligations according to conflicts of laws rules (p. 80). If that state's laws are governed by the CISG, then the place of performance will be determined pursuant to the CISG. Thus, where the price has not been paid, since Article 57 provides that it is payable at the seller's place of business, the seller will be able to sue the buyer where the seller is located. Witz draws attention to the criticism of this result by German commentators who would prefer the forum actoris, the plaintiff's forum, especially since the failure to pay often is the response of a buyer who has been cheated by a deficient performance on the part of the seller (pp. 80-81).

In a suit involving a German and an English company, a German court reasoned that the place of performance should be dispositive of jurisdiction. The German Federal Court of Justice brought the issue to the European Court of Justice, proposing to identify the place of payment,[page 195] not by where the seller's place of business was located, but where the goods were to have been delivered (p. 81).

The European Court of Justice disagreed, reasoning as follows:

"[A]rticle 5 . . . 1 of the [Brussels] Convention of 27 September 1968 . . . must be interpreted such that, where the party furnishing the product demands payment from the client pursuant to a contract, the place of performance of the obligation to pay must be determined in accordance with the law governing the obligation at issue, according to the rules of conflict of the jurisdiction in which the action was brought, even when those rules indicate the applicability to the contract of laws such as [international sales conventions] [European Court of Justice 29 June 1994]."

(p. 81). Witz signals that this reasoning is also applicable where the Brussels and Lugano Conventions do not apply, but where national rules provide for jurisdiction in the place where the contractual obligations were to be performed (p. 83).

Lack of Conformity

In cases dealing with latent or concealed defects, the CISG makes it the seller's duty to deliver conforming goods (p. 85). Although the CISG is silent as to which party bears the burden of proof with respect to the conformity of the goods, all schools of thought agree that the buyer bears the burden (p. 86). Witz favors the CISG as the appropriate source of legal authority in this matter (pp. 86-87).

The Buyer's Notice of Lack of Conformity

Ironically, the CISG's provisions as to the buyer's duty of giving notice of the lack of conformity of the goods have been the subject of far more case law than the seller's failure to provide conforming goods (p. 88). Witz notes in particular the severity of German judges in applying Article 39 section 1 against the buyer (p. 89).[52]

In a case heard by a Stuttgart court, a German buyer of Italian shoes claimed that it had examined several samples, but that the defects could not have been discovered before the buyer's clients brought them to the buyer's attention. The shoes were delivered on May 25, 1988 and the buyer gave notice of lack of conformity of June 10, 1988. The court held that the buyer was in contravention of the "reasonable [page 196] time" requirement of Article 39(1), reasoning that the buyer had had a duty to examine the goods minutely and scrupulously. The court noted in this context that the buyer previously had identified flaws in a prior shipment, and that it therefore had been on notice of problems [LG Stuttgart 31 August 1989]. [53] The court thus held notice to be tardy when it was given sixteen days after delivery.

In another case, a German buyer gave notice of defects in cucumbers sold by a Turkish seller only seven days after inspecting them [OLG Düsseldorf 8 January 1993]. [54] The parties' contract provided that the buyer's examination was to take place in Turkey rather than at the place of delivery. The judges found that the parties had derogated from Article 38 section 2, which provides that, "[i]f the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination." The court held that seven days constituted an unreasonably long time period (pp. 89-90).

In yet another case before a German court, notice of lack of conformity was deemed unreasonable where it was given two months after the delivery of the goods (mussels), and where the court found that the claimed defect in packaging could have been discovered immediately (p. 90) [OLG Frankfurt 20 April 1994]. [55] In other cases before German courts, notice of lack of conformity was held not to have been given within a reasonable time period when it was given more than two months after the delivery of shirts of the wrong size [OLG Düsseldorf 10 February 1994]; [56] and when it was given some three and a half months after the delivery of shoes with easily identifiable flaws [LG Berlin 16 September 1992]. [57]

Witz suggests that the German courts have been influence in their CISG decisions by (1) prior judicial solutions reached pursuant to the 1964 Hague Conventions, which required the buyer to give notice without delay[58] and (2) precedents decided under German national law (p. 91).

The problem of reasonable time periods has been further compounded by a German court's failure to differentiate between Article 39 section 1's reference to a reasonable time period in the context of giving notice of lack of conformity in goods, and Article 49's references [page 197] to reasonable time periods for a buyer's giving notice of avoiding a contract (p. 100).[59]

Witz's criticism of the severity of German judges is magnified by his suspicion that a predictable reluctance on the part of judges in other Contracting States to be equally harsh may lead to disparities in the evolving case law of the various CISG signatory states. He particularly regrets that guidelines cannot be offered as to uniform time periods that would satisfy the CISG's requirements, a problem he attributes to the need for a case by case approach (pp. 90-91). One might suggest, however, that Witz's concern should be alleviated precisely because holdings disparate with respect to definite time periods, and analyzed on a case-by-case basis, implicate interpretive uniformity to a far lesser degree than disparities in matters less dependent on the particular circumstances of each case.

The Attempt to Distance National Legal Tradition from Article 79 Contract Exemptions

With respect to Article 79's exemptions from a contract, the CISG's drafters avoided using terms reminiscent of national doctrines, in order to minimize the risk of national interpretations in line with prior national legal traditions, rather than with a new, uniform interpretation (p. 108).[60] Moreover, Article 79 represents a complete regulation of permissible exemptions, such that it leaves no room for internal national law to supplement the CISG (p. 110).[page 198]

Conclusion: Beyond Uniformity

Notwithstanding the many challenges to uniformity which Witz highlights in his excellent, readable and well-reasoned book, he is more than merely optimistic that uniformity of interpretation will evolve increasingly from the efforts of scholars, and from multinational undertakings to collect and disseminate CISG decisions and commentary throughout the world. Witz coins the term rayonnement to describe a perhaps unexpected development: namely, the CISG's accession to a stature beyond the limits of its stated field of application. He foresees a day when the CISG will not only be well established, but will take its place as a source of juridical principles to which judges and commentators may look increasingly for instruction and inspiration on matters not limited to the international sales of goods. In the core of this thorough, scholarly, yet practical, new book, valuable to academics and practitioners alike, the embedded, poetic image of rayonnement, or iridescence, metamorphoses the CISG into a glowing, hue-shifting, impalpable, yet permeating source of illumination.[page 199]


FOOTNOTES

* Visiting Assistant Professor of Law, University of Pittsburgh. B.A. 1975, University of Pennsylvania; M.A. 1977, M. Phil.1979, Ph.D. 1980, J.D. 1983, Columbia University. The author is extremely grateful to Harry Flechtner for his generosity in sacrificing many hours from his overly-burdened schedule to read previous drafts of this book review, and for his very helpful comments and suggestions.

1. Reported CISG case law currently is estimated at between 150 and 200 decisions, although an elusive system of case reporting in many of the signatory states virtually assures the existence, unknown to the public, of many more unpublished cases decided pursuant to the CISG. See Michael R. Will, CISG: The U.N. Convention on Contracts for the International Sale of Goods, International Bibliography, 1980-1995: The First 150 or so Decisions, 1988-1995 (1995).

2. Professor Harry Flechtner has developed this thesis in Sources of Textual Non-Uniformity in the U.N. Sales Convention: The Several CISGs, Address to the Third International Workshop on a Legal Expert System for the U.N. Convention for the International Sale of Goods (CISG), Washington, DC, May 20, 1995. See also Bianca & Bonell, Commentary on the International Sales Law: the 1980 Vienna Sales Convention, p. 807, note* ("Unofficial [German] translation [was] agreed between the Governments of Austria, the Federal Republic of Germany, the German Democratic Republic and Switzerland. The Austrian, GDR, and Swiss versions contain slight differences on minor points . . . "). I am grateful to Professor Flechtner for bringing this passage to my attention in the context of a discussion about the many variations of the CISG, some official and some unofficial, and the attendant heightened difficulty of achieving uniformity of interpretation.

3. We have spoken above of the challenge to interpretive uniformity of the many texts of the CISG realized by the translation of the CISG into numerous languages. A corollary problem concerns the meaning of judicial and arbitral opinions when read in translation. As one who has translated several CISG cases into English in the pages of this journal, I am well aware that "the phenomenology of the untranslatable, the untranslated, the 'unreceived' (le non-recevoir) is one of the subtlest challenges . . . " George Steiner, What is Comparative Literature? An Inaugural Lecture Delivered Before the University of Oxford on 11 October 1994, 13 (1995). Steiner, himself one of the most cultivated, erudite and polyglot comparatists of our time, believes that "[n]o comparati[st] . . . scholar or teacher knows enough languages." Id. Referring to the complexity of the very concept of knowing more than one language, Steiner recounts that "Roman Jakobsen [the great Russian-born structural linguist and formalist] was reputed to know seventeen [languages], but 'all in Russian.'" Id.

4. Not all CISG scholars share Witz's optimism about the possibility of international uniformity, nor even necessarily the goal. See, in [15 Journal of Law and Commerce 1995 127-138], Harry Flechtner, Another CISG in the U.S. Courts: Pitfalls for the Practitioner and the Potential for Regionalized Interpretations, predicting that CISG applications may develop non-uniformity along the lines of regional trading groups.

5. The author concedes that this theory does not hold for Italy, which also ratified the Hague Conventions, but whose judiciary has rarely applied the CISG (p. 18 n.13).

6. No European state has opted out of the provision, although both the United States and China have (p. 24 n.1).

7. LG Bielefeld, 23-06-1989, IPRax 1990, 316.

8. The Convention relating to a Uniform Law on the International Sale of Goods was appended to international conventions adopted at The Hague in 1964 [hereinafter "ULIS"], and was superseded by the CISG. See Peter Winship, The U.N. Sales Convention: A Bibliography of English-Language Publications, 28 Int'l Law. 401, 403 (1994).

9. OLG Düsseldorf, 02-07-1993, RIW 1993, 845 et seq., EWIR 1993, 1075 et seq., obs. P. Schlechtriem.

10. Paris, 22-04-1992. The English translation of this case, along with the English translation of an extensive commentary of the case by Witz, will appear in Volume 16, Issue 1 of this journal.

11. In support of this argument, Witz cites the CISG drafters' wish to confer the widest possible scope to Article 1 § 1(b), as well as the view that unification of the law precludes the application of the law of non-Contracting States (p. 29).

12. OLG Köln, 26-08-1994, RIW 1994, 970 et seq.

13. Hungarian Chamber of Commerce, 20-12-1993, introduced by Alexander Vida, Keine Anwendung des UN-Kaufrechtsübereinkommens des Geschäftsanteils einer GmbH, IPRax 1995, 52-53.

14. CISG, Article 3(1). Significantly, the English version of the CISG refers to "a substantial part," while the French version refers to "an essential part" ("une part essentielle"). For an analysis of the significance of this difference in terminology in Articles 71 and 72, see Flechtner, supra note 2. German and Swiss scholars agree with the French view that component parts should be analyzed in terms of whether they are essential. This also follows from the German-language version of the CISG (an unofficial version, to be sure), using the term "wesentlich," which translates in English as the qualitative essential. Interestingly, in Articles 71 and 72, where the English text uses the two distinct terms, "substantial" and "fundamental," and the French uses only "essentielle" in both articles, the German text, like the French, uses only one term, "wesentlich." While the different qualitative connotations and implications of substantial and fundamental vis-à-vis essentielle/wesentlich appear to be significant, all three language versions contrast in similar manner the qualitative connotations of the words used in Article 3(1) with the quantitative connotations of preponderance in Article 3(2), the English "preponderant" corresponding with both the French "prépondérante" and the German "überwiegende."

15. This was the case in LG Aachen, 14-05-1993, RIW 1993, 760 et seq.

16. The case was OLG Düsseldorf, 02-07-1993, RIW 1993, p. 845 et seq., n. P. Schlechtriem. The English text of Article 5 is as follows: "This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person."

17. Witz similarly approves an arbitrator's decision to look to national law to determine the scope of a penalty clause, nothing that the CISG drafters intended penalty clauses to come within the purview of national law (p. 42). He takes the position, however, that although recourse to national law is warranted with respect to penalty clauses, judicial interpretation nevertheless should be guided by the general principles underlying the CISG (p. 102).

18. LG Stuttgart, 31-08-1989, RIW 1989, p. 984 et seq.; Rev. dr. uniforme 1989, II, p. 853 et seq.

19. Article 6 provides that "[t]he parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions."

20. Article 95 provides that "[a]ny State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention."

21. For more on the drafters' intent with respect to the validity of implicit CISG exclusion, see Claude Witz, L'exclusion de la Convention de Vienne par la volonté des parties, D. 1990, Chron. 107 et seq. (cited on p. 44 n.85).

22. Witz's text reads as follows in the original: "[L]'application de la Convention n'est en effet pas subordonnée à la volonté des parties. C'est le système du 'opting out' et non du 'opting in' qui a été retenu par les rédacteurs de la Convention." (p. 44).

23. Cited by Witz in the original: "[D]epuis le 1er janvier 1988, le droit français de la vente internationale est constituée par la Convention des Nations unies sur les contrats de vente internationale des marchandises . . . ." (p. 45).

24. Id.

25. Affaire 6653, 1993, JDI 1993, p. 1040, obs. J.-J. A. Witz cites to the following original language of the decision: "La volonté des parties de se référer au droit français conduit le tribunal arbitral, pour toutes les questions non couvertes par la Convention de Vienne, à retenir le droit français en matière de preuve, de théorie générale des obligations et, le cas échéant, de droit interne de la vente." (p. 45).

26. See supra note 19.

27. OLG Koblenz, 17-09-1993, RIW 1993, p. 934 et seq.

28. LG Hamburg, 26-09-1990, p. 1015 et seq.; IPRax 1991, p. 400 et seq.; CLOUT, 17-05-1993, p. 4.

29. The relevant portions of Article 8 are as follows: "For the purposes of this Convention statements made by and other conduct by a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was," and "[i]f the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances." (Emphasis added).

30. Arbitral ruling 1992, 7197, cited by Witz, p. 53 n.7.

31. See supra note 10.

32. Article 19(2) provides that

a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

The French CISG uses "sustantiellement" whereas the English uses "materially." Thus, in its own words, the Paris Court of Appeals held that the contract terms had not been altered substantiellement by the German company's reply.

33. Witz favors the view that the presumption is rebuttable (p. 60).

34. For an English-language translation of Malev, see 13 J.L. & Com. 49 (1993).

35. The case was Fövárosi Bíróság Budapest, 24-03-1992. Unilex 1995, introduced by Alexander Vida, IPRax 193, 263-264.

Pursuant to Article 9 § 1, "[t]he parties are bound by any usages to which they have agreed and by any practices which they have established between themselves."

36. See Paul Amato, U.N. Convention on Contracts for the International Sale of Goods -- The Open Price Term and Uniform Application: An Early Interpretation by the Hungarian Courts, 13 J.L. & Com. 1 (1993).

37. The CISG had been ratified by both Hungary and the United States.

38. Article 8 provides as follows:

(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.
(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.
(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiation, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.

39. Legfelsöbb Bíróság, 25-09-1992. For the English translation of this case, see supra note 33, at 31.

40. In Derridaean terms, the irreconcilable perspectives of the two Hungarian courts would signal a textual point of rupture calling for an analysis capable of exposing an unexpressed dynamic. Without wanting to engage in a full-scale deconstructionist analysis here, one can see in the Hungarian Supreme Court's omission of any reference to Article 8, combined with a progression from (1) reasoning that there was no offer; to (2) reasoning as if there were an offer, but no acceptance, that the opinion becomes comprehensible as a unified text only if seen as motivated primarily by considerations other than adjudicating pursuant to the relevant sources of law. The Court's primary motive, on closer analysis, appears to be to find in favor of the Hungarian defendant, and only secondarily to establish connections of logic between the ultimate findings and the CISG. The paradoxes of the Supreme Court opinion are more salient still when viewed in juxtaposition with the disparate mode of reasoning of the lower court, and in all light of CISG Article 65, which, as Witz points out, explicitly envisages valid contracts which call for the buyer "to specify the form, measurement or other feature of the goods . . . " (p. 68). For the uses of deconstruction as a method for unearthing unarticulated messages in legal discourse, see, e.g., Vivian Grosswald Curran, Deconstruction, Structuralism, Antisemitism and the Law, 36 B.C. L. Rev. 1 (1994).

41. See supra note 10.

42. Cass. civ. 1st, 04-01-1995.

43. CISG Article 11.

44. Filanto v. Chilewich, 789 F.Supp. 1229 (S.D.N.Y. 1992), aff'd, 984 F.2d 58 (2d Cir. 1992); Beijing Metals and Minerals Import/Export Corp. v. American Business Ctr., Inc., 993 F.2d 1178 (5th Cir. 1993).

45. For more detailed analyses of the CISG and the parol evidence rule, see Ronald A. Brand & Harry M. Flechtner, Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Convention, 12 J.L. & Com. 239 (1993); and Harry M. Flechtner, More U.S. Decisions on the U.N. Sales Convention: Scope, Parol Evidence, "Validity" and Reduction of Price Under Article 50, 14 J.L. & Com. 153 (1995).

46. GPL Treatment, Ltd. v. Louisiana Pacific Corp., 894 P.2d 470 (Or. App. 1995), rev. granted, 898 P.2d 770 (Or. 1995). This case is the subject of another article in this volume [Flechtner, 15 Journal of Law and Commerce (1995) 127-138].

47. Witz cites to Herber, Czerwenka, Neumayer and Ming as commentators who articulate this thesis (p. 73 n.52).

48. Witz cites Schlechtriem and van Caemmerer in support of this position (p. 73 n.53) and notes that at least one German court has adopted this second view. See LG Memmingen, 01-12-1993, IRPrax 1995, obs. Clemens Ranker (p. 73 n.51).

49. Article 96 provides as follows:

A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modifications or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State.

For the contrary view that Article 12 in fact allows an exception to Article 11's freedom of contract form when either party has its place of business in a state which has made an Article 96 reservation, see John Honnold, Uniform Law for International Sales under the 1980 United Nations Convention § 129 (2d ed. 1991); Ronald A. Brand & Harry Flechtner, Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Convention, 12 J.L. & Com. 239, 250-51 (1993).

50. Fövárosi Bíróság Budapest, 24-03-1992, presented and commented by Alexander Vida, IPRax 1993, 263 et seq.

51. Article 57 § 1(a) provides that, "[i]f the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the seller's place of business . . ."

52. Article 39 § 1 provides that "[t]he buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it."

53. LG Stuttgart, 31-08-1989, IPRax 1990, 317 et seq.

54. OLG Düsseldorf, 08-01-1993, NJW-RR 1993, 999 et seq.

55. OLG Frankfurt, 20-04-1994, RIW 1994, 593 et seq.

56. OLG Düsseldorf, 10-02-1994, DB 1994, 2942 et seq.

57. LG Berlin, 16-09-1992 (unpublished case) (p. 90 n.46).

58. For the severity of German decisions pursuant to LUVI [the 1964 Hague Conventions], Witz refers the reader to Schlechtriem & Magnus, Internationales Rechtsprechung zu EKG [ULIS] und EAG [ULF] (1987) (p. 18 n.14).

59. Article 49 § 2 provides that,

in cases where the seller has delivered the goods, the buyer loses the right to
declare the contract avoided unless he does so:
(a) In respect of any late delivery, within a reasonable time after he has become
aware that delivery has been made;
(b) In respect of any breach other than late delivery, within a reasonable time:
(i) After he knew or ought to have known of the breach;
(ii) After the expiration of any additional period of time fixed by the buyer in
accordance with paragraph (1) of article 47, or after the seller has declared that
he will not perform his obligations within such an additional period; or
(iii) After the expiration of any additional period of time indicated by the
seller in accordance with paragraph (2) of article 48, or after the buyer has
declared that he will not accept performance.

60. Witz cites in this context to the work of Jean-Pierre Plantard, the French CISG drafter who succeeded André Tunc. Jean-Pierre Plantard, Un Nouveau droit uniforme de la vente internationale: La Convention des Nations Unies du 11 avril 1980, JDI (1988) 311-17 (p. 17 n.9).


Pace Law School Institute of International Commercial Law - Last updated February 28, 2001
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