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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 672-674. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 100

Malcolm Evans

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 100

(1) This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in sub-paragraph (1)(a) or the Contracting State referred to in sub-paragraph (1)(b) of article 1.

(2) This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in sub-paragraph (1)(a) or the Contracting State referred to in sub-paragraph (1)(b) of article 1.

1. History of the provision

     1.1. - Precedents for this provision are to be found in Article 33 of the Limitation Convention and in Article 30(3) of the Hamburg Rules. It is based on Article E of the draft final clauses submitted to the Vienna Conference by the Secretary-General of the United Nations (Official Records, I, 68).

2. Meaning and purpose of the provision

     2.1. - Whereas Article 99 is concerned with the entry into force of the Convention as regards the international obligations of the Contracting States arising under it, Article 100 determines the point in time as from which the Convention will apply in respect of the specific transactions to be governed by it. Although some delegations at the Vienna Conference were not convinced of the need for this article, others drew attention to the precedents established by Article 33 of the Limitation Convention and by Article 30(3) of the Hamburg Rules and it was also [page 672] suggested that the provision could be of assistance to businessmen (Official Records, II, 440-441).

     2.2. - Paragraph (1) is concerned with the formation of contracts and establishes the rule that the Convention will, in respect of the situation contemplated by Article 1(1)(a), apply only when a proposal for concluding the contract is made on or after the date on which the Convention enters into force in respect of the Contracting States to which that sub-paragraph applies. If then, for example, the Convention enters into force in respect of State A on 1 January 1988, and in respect of State B on 1 October 1988, and assuming that neither State has excluded Part II in accordance with Article 92, the provisions of the Convention relating to formation will, as regards Article 1(1)(a), only apply if a proposal for concluding the contract is made by a party with his place of business in one of those States to a party with his place in the other, on or after 1 October 1988.

     2.3. - As to the application of Article 1(1)(b) in that example, it would be sufficient that the rules of private international law applied by a court in State A or indeed in another Contracting State designate the law of State A as being the applicable law for the Convention to apply to proposals for concluding the contract made on or after 1 January 1988, always provided of course that State A has not taken a reservation under Article 95.

     2.4. - Paragraph (2) provides that the Convention will apply only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in Article 1(1)(a) or the Contracting State referred to in Article 1(1)(b). In other words it provides a temporal criterion for determining the transactions to which the provisions of Part III of the Convention will apply, the conclusion of the contract being relevant here rather than the time of the making of the proposal as was the case under paragraph (1) in relation to questions of formation. This being said the analysis of the effects of paragraph (1) on a formation situation as regards the application of Article 1(1)(a) and (1)(b) in the example cited in 2.2. supra, would seem to apply mutatis mutandis to the [page 673] application of paragraph (2) with the substitution of the time of the conclusion of the contract for the time of the proposal for concluding the contract.

3. Problems concerning the provision

     3.1. - There would appear to be no reason why the mechanism provided for in Article 100 should not be capable of working in practice without any difficulty although it should be noted that the combined effect of the two paragraphs is such that cases may arise in which Part II or Part III of the Convention will apply to specific transactions to which the other Part will not. One illustration of this result may be given by taking the situation envisaged in 2.2. supra, where the Convention enters into force in respect of State A on 1 January 1988 and in respect of State B on 1 October 1988. Assuming that the parties have their places of business in those two States and that a contract is concluded on 31 October 1988 following a proposal made on 30 October 1988, then Part III of the Convention will be applicable to the transaction in question under the terms of Article 1(1)(a), but not Part II, although the possibility of Part II being deemed applicable pursuant to Article 1(1)(b) cannot of course be excluded.

     3.2. - Conversely, the situation could arise where, although neither Part of the Convention would be applicable by virtue of Article 1(1)(a), Part II might apply in accordance with Article 100(1) on the ground that the condition set out in Article 1(1)(b) had been satisfied, whereas Part III would not, because the law applicable to the contract of sale itself, unlike that governing its formation was not the law of a Contracting State. [page 674]


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