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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 11 [Form of contract]

[TEXT OF THE UNIFORM LAW]

A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form [1]. It may be proved by any means, including witnesses [2].

[WORDS AND PHRASES, CONCEPTS

1. contract need not be concluded in or evidenced by writing
2. proof by witnesses ]

[COMMENTARY]

[1] [contract need not be concluded in or evidenced by writing; form prescription]

      [1.1] Basically, it is declared that international sales contracts, which fall under the CISG, need not be concluded in writing. The CISG determines here, as a matter of exception the validity of sales contracts, including such which under the applicable national law would be void because of lack of a required form, (Article 4, subpara. (a)). This is true independent of the nature of the requirement and of the purposes it is supposed to serve (Rajski/BB, 123). Article 96, however, opens up the possibility for a reservation. A reservation under the above-mentioned Article would entail the legal consequences indicated under Article 12. Many authors consider the removal of the writing requirement for sales contracts on movable goods as an achievement of western legal systems to speed things up, whereas the former socialist countries are believed to attach great importance to certainty, predictability and lack of surprises (e.g. Garro, 461; S. G. Zwart, "The New International Law of Sales: A Marriage between the Socialist, Third World, Common and Civil Law Principles", The North Carolina Journal of International Law and Commercial Regulative, 1988/1, 116). It is difficult for us to understand, however, why in the age of telex, and now even telefax, the speed, with which oral contracts would be concluded, should be considerably higher. On the contrary, modern international trade is not possible without storing information outside the heads of the people involved, including information concerning the conclusion of a contract. Therefore, in a broad sense, almost all contracts are formed in writing. It is no wonder, therefore, that it was in particular the western side which tried to save the writing requirement in certain cases (note 5.1. of Article 4; also note 1.2. at the end). We hold, nonetheless, that it is correct to proceed from the principle of freedom of form - even though in practice it is relied upon only exceptionally. We do so to prevent dishonoured contractual relationships. Where the contract is the result of a correspondence, it happens quite often that there is no reaction to the last statement, which leads to the conclusion of a contract, although it contains modifications which transform it into a counter-offer (Article 19). In such event there will be no contract since the written form is required, even though the parties have performed. The written form requirement of the General Conditions of Delivery of Goods/CMEA (4) has in such cases often led to difficult situations.

      [1.2] [form prescriptions] Form prescriptions under foreign trade regulations, e.g. in the area of approval of goods and foreign exchange flows, are not affected by Article 11 insofar as the sanctions envisaged therein remain effective, e.g. punishment in the event of violating those prescriptions. But they do not attain any effectiveness in the relations between the parties to the sales contract. The contract remains valid (Secretariat's Commentary, O.R., 20; Honnold, 153). [page 73]

Other State regulations, e.g. ministerial orders, and also internal company rules which prescribe that international sales contracts are to be concluded in writing are treated similarly.

      [1.3] The rule refers to the formation of the contract and thus to acts which lead to a contract. In regard to other legal acts the CISG generally does not prescribe a specific form unless it follows from the nature of the act (e.g. statement - Article 8, note 2.2., which can be done orally, - Article 24, Article 21, paragraph 1, but not by conduct implying an intent). Contradictory regulations under domestic law, which insofar are still scarcer, have to come second.

[2] [proof by witnesses]

It is here expressly noted that the exclusion of proof by witnesses, as may be envisaged in domestic legal systems, is not effective within the Convention's scope of application. [page 74]

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Pace Law School Institute of International Commercial Law - Last updated August 7, 2002
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