Cite as Rajski, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 125-127. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision
Any provision 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.
1. History of the provision.
1.1. - No antecedent of this provision may be found in either ULIS or ULFC. It was introduced at the UNCITRAL Draft Convention and subsequently accepted by the Vienna Conference as part of a compromise. The accommodation was made for States which were willing to participate in the Convention on the condition that it accommodate the importance they attached to the requirement that international sale contracts, as well as their modification or termination by agreement, be in writing.
2. Meaning and purpose of provision.
2.1. - Article 12 aims at accommodating the special demands of those States whose legal systems impose the written form for contracts of international sales for purposes of validity, evidence and administrative control (see commentary on Article 96, infra).
For example, under Soviet law, non-observance of the written form and special signing procedure results in avoidance of the contract (see Article 14 of the Fundamentals of Civil Legislation of the USSR and the Soviet Republics). The procedure for signing foreign trade transactions with Soviet organizations is determined by a special Decree of the USSR Council of Ministers of [page 125] February 14 1978, no. 122. It is important to note that the prescribed form and special signing procedure are mandatory with respect to all foreign trade transactions concluded by Soviet organizations irrespective of the place of the conclusion of the contract (see Article 125 of the Fundamentals of Civil Legislation). A mandatory written form has also been imposed by the General Conditions of Delivery of Goods between the Enterprises of the Member States of the Council for Mutual Economic Assistance of 1968/1975 (text of 1979).
2.2. - The operation of Article 12 is confined to Articles 11, 29 and to Part II (Articles 14 to 24) of the Convention. Therefore, it does not encompass all notices or indications of intentions required or permitted under the Convention, but only those which relate to contract formation, its modification or termination by agreement. Other notices, as those fixing different time-limitations (e.g., according to Article 47 or 63), specifying the nature of the lack of conformity of the goods (according to Article 39) or concerning reduction of the price (according to Article 50), may be given by means appropriate in the given circumstances (see also the part of Article 27 which refers to «any notice, request or other communication ...»). Notice of declaration of avoidance of the contract likewise belongs to the category of acts for which Contracting States may not derogate from the Convention's informality principle (see commentary on Article 26, infra), although another point of view was also discussed at the Vienna Conference. According to an option then expressed, Article 11 of the UNCITRAL Draft Convention (now Article 12) could be understood as including the declaration of avoidance within the scope of its application. In order to dispel any doubt in this respect, the Vienna Conference decided to change the wording of this article, replacing the word «abrogation» of the contract by a more precise expression, «termination by agreement» (see Official Records, II, 272).
2.3. - Article 12 determines the effects of a declaration made by a Contracting State under Article 96 concerning the relationships between the parties to the contracts for the international sale of goods.
It does not contain any rule concerning the form to be observed by contracts falling under the scope of its application. [page 126] These problems are therefore governed by the domestic law applicable under relevant conflict-of-law rules.
Article 12 is the only provision of the Convention which is of a mandatory character (see commentary on Article 6, supra). It can not be abrogated or modified by the parties' will. This solution is justified by the relation of the writing requirement in matters mentioned in this article to questions of public policy in certain States.
3. Problems concerning the provision.
3.1. - As indicated above, some problems may arise in connection with the meaning of «other indication of intention» as used in this article. In examining the wording of Article 12 it appears that the declaration of avoidance regulated by Article 26, as well as other notices which do not relate to the formation of the contract, its modification, or termination by agreement do not fall within Article's 12 scope of application (see § 2.2., supra). [page 127]