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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 642-644. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 92

Malcolm Evans

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

ARTICLE 92

(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention.

(2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies.

1. History of the provision

     1.1. - The origin of this provision is to be found in the decision of the Commission to integrate the draft Convention on the Formation of Contracts for the International Sale of Goods with the draft Convention on the International Sale of Goods while at the same time permitting a State to ratify the integrated text in part only (see Yearbook, XI (1978), 13).

     1.2. - The text of Article 92 is based on Article G of the draft final clauses submitted by the Secretary-General to the Vienna Conference (Official Records, I, 69), as modified by the Drafting Committee.

2. Meaning and purpose of the provision

     2.1. - The provision must be seen against the background of the 1964 Hague Sales Conventions, one of which deals with the formation of international sales contracts, and the other with the contract of sale itself. In actual fact, the same States became [page 642] Parties to both of those Conventions although two States, Belgium and Israel, ratified them on different dates. The purpose therefore of Article 92 is to enable States which may wish to become Parties to the Vienna Convention, but which might prefer not to accept Part II of the Convention, Formation of the Contract, or Part III, Sale of Goods, to do so.

     2.2. - To this end Article 92(1) permits a State to declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II or by Part III of the Convention. The consequence of such a declaration for a State making it is that, pursuant to Article 92(2), it will not be considered to be a Contracting State within Article 1(1) of the Convention in respect of matters governed by the Part to which the declaration applies.

     2.3. - The practical effect of these provisions is illustrated by considering a situation in which one party has his place of business in State A, which has made a declaration under Article 92 in respect say, of Part II of the Convention, and the other party has his place of business in State B which has made no such declaration. The case is not one in which, as regards Part II of the Convention, both parties have their places of business in Contracting States since State A cannot in this connection be considered a Contracting State within Article 1(1) and in consequence the Convention cannot apply by virtue of sub-paragraph (a) of that provision to questions of formation.

Whether the provisions of Part II may nevertheless apply pursuant to Article 1(1)(b) will depend upon whether a court in a State Party to the Convention will be led by the application of the rules of private international law to the designation, as the applicable law, of the law of a Contracting State which has not excluded the application of Part II of the Convention.

     2.4. - It is suggested that the approach described in the preceding paragraph may also be followed in determining whether or not the Convention is applicable in the event of the States in which each party has his place of business having made a similar declaration under Article 92(1) or of one of the States in question having made a declaration relating to Part II of the Convention and the other to Part III. [page 643]

3. Problems concerning the provision

     3.1. - It would not appear that Article 92 creates any difficulties additional to those mentioned in the preceding sections, i.e., those normally arising in cases involving an international element and consequent recourse to the application of the rules of private international law. [page 644]


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