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Cite as Rajski, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 658-660. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 96

Jerzi Rajski

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

ARTICLE 96

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 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 that State.

1. History of the provision

     1.1. - No antecedent of this provision may be found either in ULIS or in ULFC. Article 96, which is substantially the same as Article X of the UNCITRAL Draft Convention (Yearbook, IX (l978), 21), was adopted as a compromise solution aimed at resolving difficulties that might be encountered by certain States willing to participate in the Convention, but whose law establishes a mandatory written form for international sales contracts.

     1.2. - In the negotiations leading to the compromise, it was proposed that the effect of a declaration under Article 96 be that the formal requirements of the law of the State making the reservation are to be applied. This proposal was rejected on the ground that its adoption would make the formal requirements of the law of the declaring state too widely applicable (see Yearbook, IX (1978)).

2. Meaning and purpose of the provision

     2.1. - Article 96 makes the Convention acceptable in the greatest possible number of States of varying socio-economic and legal systems. As a concession to States which consider the requirement [page 658] of a written form for international sales contracts to be indispensable, it permits a Contracting State to make a reservation which excludes application of the Convention's provisions contrary to the written form requirement to contracts of any party whose place of business is in that State. Such a reservation may be made at «any time», that is, not only at the time of signature, ratification of, or accession of the interested State to the Convention, but also at any subsequent time. Article X of the UNCITRAL Draft Convention limited this possibility to the time of signature, ratification or accession. The Vienna Conference decided to strike this restriction (see Official Records I, 145; II, 443444). It was so agreed in order to ensure that a State introducing a written form requirement for international sales contracts after ratification of the Convention would not be forced to denounce it. This was thought to be a very important consideration for some developing countries whose law, while generally accepting the principle of the autonomy of the parties, appears to be in constant evolution.

     2.2. - As a result of a reservation made by a Contracting State in accordance with Article 96, the provisions of the Convention enumerated therein would not apply to contracts of any party who has his place of business in that State. This means that these provisions would not be applicable to either party to the contract, although one of them may have his place of business in a Contracting State that has not made such a reservation. The situation of both parties with respect to the problems regulated by Article 96 would then be determined by the domestic law applicable under the relevant conflict-of-laws rules.

3. Problems concerning the provision

     3.1. - The meaning of the phrase «[a] Contracting State whose legislation requires contracts of sale to be concluded in or evidenced in writing» may raise some doubts. Two solutions were discussed at the Vienna Conference. The first one envisaged application of the proposed rule to States whose law prescribes a mandatory written form for all sales contracts. The second, more liberal, solution advocated a wider scope of application, embracing [page 659] also States whose law requires a mandatory written form only for particular categories of sales contracts. Thus it admitted the possibility of partial or specific reservations. An argument was advanced against this proposal that it would open too many possibilities for reservations and could therefore endanger the uniformity estaplished by the Convention (see Official Records, II, 273).

Article 96 as adopted permits a Contracting State to make a reservation only if its law requires contracts of international sales in general (i.e., in principle, all), to be concluded or evidenced in writing. Such cases certainly are exceptional. Therefore, Article 96 achieves a satisfactory balance between the specific interest of some Contracting States and the need to preserve, as far as possibile, the uniformity of the law of international sales as created by the Convention. [page 660]


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