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Reproduced with permission from 43 Consumer Fin. L.Q. Rep. (1989) 23-33

An Introduction to The United Nations Sales Convention

Peter Winship [*]

The United Nations Convention on Contracts for the International Sale of Goods [1] became law in the United States on January 1, 1988. As a consequence, businesses in the United States that export or import goods should review their present contracting procedures and documentation. To help with this review, this article introduces the convention's basic concepts. Being only an introduction, however, readers who wish to study the convention in more depth should consult the growing number of detailed commentaries. [2]

The convention governs the formation of international sales contracts and the rights and obligations of parties to these contracts. The first part of the convention (Arts. 1-13) defines the convention's sphere of application and sets out rules of interpretation applicable to the next two parts. The formation provisions appear in Part II (Arts. 14-24) of the convention, the substantive sales provisions in Part III (Arts. 25-88). Part IV (Arts. 89-101) concludes with housekeeping rules for countries that become parties to the convention (i.e., "Contracting States").

After reviewing the convention's background, this article explores when the convention is applicable, how its text should be interpreted, when enforceable international sales contracts are formed, and what rights, obligations and remedies parties have when they enter into these contracts.

Some readers will be tempted to read no further because they have heard that they may exclude application of the convention altogether by a simple exclusionary clause. Indeed, it has occasionally been suggested that one should automatically advise clients to exclude the convention. This advice, however, should be given only after careful study of the convention to determine what is best for one's client. It has been said, for example, that whereas the Uniform Commercial Code favors buyers the convention is more even-handed and therefore, if one's client is a seller, the convention may be preferable. To say that there may be circumstances where the convention should be preferred, does not mean, of course, that the convention should always be selected nor that one should ignore the uncertainties inherent in a new law. Each case should be considered on its own merits.

I. Background of the Convention [3]

A diplomatic conference adopted the official text of the sales convention on April 11, 1980. Article 91 opened the convention for signature until September 30, 1981. Twenty-one states, including the United States, signed by this date and thereby implicitly undertook to seek ratification of the convention.[4] A state that did not sign by this date may accede to the convention at any time. A state does not, however, become a "Contracting State" until it ratifies its signature or, if it did not sign, until it accedes to the convention.

In accordance with Article 99(1), the convention was to enter into force approximately one year after ten states had become Contracting States. The United States, China and Italy became the ninth, tenth and eleventh Contracting States in December, 1986 and the convention therefore came into force on January 1, 1988. As of October 1, 1988, there are 17 Contracting States: Argentina, Australia, Austria, China, Egypt, Finland, France, Hungary, Italy, Lesotho, Mexico, Norway, Sweden, Syria, U.S.A., Yugoslavia, and Zambia. Other states are reported to have taken steps to become parties. [5]

The U.N. General Assembly convened the 1980 conference to consider a 1978 draft text prepared by the U.N. Commission of International Trade Law (UNCITRAL). This draft text was, in turn, a revision of two uniform sales laws agreed upon by a diplomatic conference in 1964. Only eight countries enacted the uniform laws, however, and UNCITRAL undertook to revise them in 1968. With relatively few amendments, the 1980 diplomatic conference adopted the terms of the draft submitted to it.

The United States participated actively at all stages of the preparation of the 1980 Convention. Professor E. Allan Farnsworth of the Columbia Law School represented the United States in the UNCITRAL Working Group deliberations during the 1970's. Professor Farnsworth and Professor John O. Honnold of the University of Pennsylvania Law School represented the United States at the 1980 diplomatic conference in Vienna. On the advice of the Secretary of State's Advisory Committee on Private International Law and with the support of the American Bar Association, the United States signed the convention on August 31, 1981. President Reagan then submitted the convention text to the Senate for its consent to ratification on September 21, 1983. The Senate's Committee on Foreign Relations held hearings in 1984 and 1986 and reported favorably to the full Senate. On October 10, 1986 the Senate gave its consent by a unanimous roll call vote. The United States deposited its instrument of ratification with the U.N. Secretary-General on December 11, 1986 and thereby helped to bring the convention into force. [6]

Three of these background documents will be of particular interest to anyone doing research into a problem governed by the convention: (1) the 1964 uniform sales laws;[7] (2) the 1978 UNCITRAL draft;[8] and (3) the official records of the 1980 conference.[9] The U.S. congressional materials are of comparatively less interest.

II. Sphere of Application of the Convention [10]

To determine whether the convention applies to a particular transaction one must examine (A) whether the contract is a contract for the international sale of goods, (B) whether the form of the transaction or its subject matter are excluded from the convention's coverage, (C) whether a particular issue is excluded, and (D) whether the convention is in force in the relevant states. Parts A through D address these points.

Even if, by its terms, the convention applies to a transaction, the parties are expressly authorized to agree to exclude its application altogether or vary the effect of its provisions.[11] Likewise, if the convention does not by its terms apply to a transaction but the parties nevertheless agree to have it govern their transaction a court should enforce their agreement. Part E of this section considers how to include or exclude the convention.

A. "International" "Sale" of "Goods"

Article 1 of the convention defines when the transaction is international and therefore within the sphere of the convention's application. The convention does not, however, define what a "sale" is or what "goods" are, although one is given some guidance from the transactions explicity excluded by Articles 2 and 3.

Article 1(1) provides:

"This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States [i.e., States which have ratified or acceded to the convention]; or

(b) when the rules of private international law [i.e., choice-of-law rules] lead to the application of the law of a Contracting State."

Several articles supplement this general rule. Article 1(2) requires that both parties to a contract be on notice that their businesses are in different countries so that one of the parties will not be surprised to discover that the convention governs the transaction. One instance where there may be surprise is when one of the parties has places of business in several different countries. Article 10(a) provides that the relevant place of business is the one that has "the closest relationship to the contract and its performance." Unfortunately, the convention does not define the term place of business.

Enterprises with their places of business in the United States will only have to consider the simple scope rule of Article 1(1)(a). Article 95 authorizes states to declare that they will not be bound by Article 1(1)(b) and the United States made this declaration at the time it deposited its instrument of ratification. The principal reason for this declaration was to avoid having application of the convention turn on the vagaries of non-uniform choice-of-law rules.[12] As a result, a court sitting in the United States is required to apply the convention only if the parties before it have their places of business in different Contracting States. It is, unfortunately, not as clear that courts sitting in Contracting States which did not make an Article 95 declaration must respect the United States reservation when these courts have before them a U.S. party to a contract dispute.

The following hypothetical cases illustrate how Article 1(1) applies.

Illustration A. Seller has its place of business in Texas; Buyer has its place of business in France. Both the United States and France are Contracting States. If the parties have not excluded the convention and a dispute is brought before any court in the United States, the convention will govern by virtue of Article 1(1)(a). Sub-article (1)(b) and the Article 95 reservation are irrelevant.

Illustration B. Seller has its place of business in Texas; Buyer has its place of business in Canada. Only the United States is a Contracting State. If the parties have not excluded the convention and a dispute is brought before a court in the United States, the court will not be bound to apply the convention because the case does not satisfy Article 1(1)(a) and the court need not consider sub-article (1)(b) because of the Article 95 declaration by the United States. The court will apply choice-of-law rules to determine which country's local sales law governs. Query, however, what the result would be if the same dispute was brought before a court in France?

B. Excluded Transactions

Articles 2 and 3 exclude certain transactions and certain types of property from the convention's coverage. Exclusion of consumer and service transactions are the most important of these exclusions. Article 2(a) provides that the convention does not apply to sales to persons who buy goods for personal, family or household use unless the seller was unaware of the purpose for which the goods were bought. Article 3(1) goes on to state that the convention does not cover contracts by which the "buyer" supplies "a substantial part" of the materials necessary for production, while Article 3(2) excludes contracts by which the "preponderant part" of the "seller's" obligations are to supply services.

Several other types of transactions and forms of property fall beyond the scope of the convention. Sales by auction, execution, or otherwise by authority of law are not included.[13] Sales of stocks, shares, investment securities, negotiable instruments, money, ships, vessels, hovercraft, aircraft, and electricity are also excluded.[14]

There will undoubtedly be difficult borderline cases. The convention does not define, for example, the terms substantial or preponderant as used in Article 3, and there is ample domestic case law under the Uniform Commercial Code to suggest how difficult it is to draw the distinction between sale and service transactions. Businesses engaged in these borderline transactions, however, will usually recognize the potential problem and should expressly agree on whether or not the convention will govern the transaction. In the absence of a strong local public policy, the parties' agreement will usually be enforced.

The following hypothetical cases illustrate the operation of these exclusions.

Illustration C. Retailer of bicycles has his place of business in Italy. Italy is a Contracting State. Retailer sells a bicycle to a visiting tourist from New York, who purchases the bicycle for personal use. Although the parties have their places of business or residence in two different Contracting States, the sale is not governed by the convention by virtue of the Article 2(a) exclusion of sales to persons buying for personal use.

Illustration D. Manufacturer of bicycles has its place of business in Italy. Manufacturer sells 100 bicycles to a wholesaler of bicycles which has its place of business in New York. The convention governs this sale. The contract is an international sale of goods and Article 2(a) does not exclude the transaction because the wholesaler did not buy the goods for its personal, family or household use.

Illustration E. California wholesaler agrees to purchase assembled widgets from a Chinese enterprise. The People's Republic of China is a Contracting State. The California wholesaler supplies one of the five necessary components but this one component is worth 50% in value of all the components. The Chinese enterprise supplies the other four components and the unskilled labor. It is not certain whether the convention governs. Article 3(1) states that the transaction will not be a sale if the California wholesaler supplies "a substantial part of the materials necessary." The parties are likely to be aware of the problem and if they expressly choose to have the convention govern their contract a U.S. court should enforce this choice.

C. Excluded Issues

Article 4 begins by emphasizing that the convention only governs the formation of contracts and the rights and obligations of the seller and the buyer inter se. Articles 4 and 5 then go on to exclude from the convention's coverage most products liability issues, issues of validity, and questions of what effect the contract for sale has on property claims to the goods sold.

Most products liability issues will be resolved by law other than the convention. By limiting its scope to the rights and obligations of seller and buyer, the convention does not deal with claims against remote parties in the manufacturing or distribution chain. Even as between seller and buyer, claims for death or personal injury caused by the defects in the goods sold are beyond the convention's scope by virtue of the express provision in Article 5.

Article 4(a) also excludes issues of validity from coverage of the convention and consequently they will be resolved by reference to domestic law. These issues include questions of fraud, duress, illegality, and unconscionability. What other matters may be called issues of validity is a matter of some concern because if this exclusion is read broadly courts will undermine the uniformity that the convention is designed to enhance.

Article 4(b) states that the convention is not concerned with "the effect which the contract may have on the property in the goods sold." Again, domestic law will govern these matters. Despite this exclusion, the convention does have explicit provisions dealing with intellectual property claims.[15]

Illustration F. Seller has its place of business in Yugoslavia; Buyer has its place of business in Pennsylvania. Yugoslavia is a Contracting State. Buyer purchases heavy equipment from Seller. A fault in the engine causes a fire which injures Buyer's employee, destroys the heavy equipment purchased, and damages other equipment owned by the buyer. The convention does not govern liability for injury to the employee (Art. 5) but will govern damages to the equipment and the other personal property of the buyer.

Illustration G. Seller has its place of business in Austria; Buyer has its place of business in North Carolina. Austria is a Contracting State. Seller agrees to sell Buyer a printing press. In the course of negotiations Seller states that the press is compatible with other equipment used by Buyer when Seller knew this to be false. Buyer seeks to cancel the sales contract on the ground of Seller's misrepresentation. The convention will not govern this issue because Article 4(a) excludes issues of validity from the convention's coverage. Whether the Austrian or U.S. law of fraud will be applicable will be determined by application of choice-of-law rules.

Illustration H. Seller has its place of business in France; Buyer has its place of business in Massachusetts. France is a Contracting State. Seller agrees to sell heavy equipment to the Buyer on credit. By a clause in the sales contract, Seller retains title to the goods until full payment of the purchase price. The convention does not govern whether this clause is enforceable because Article 4(b) states that the convention is not concerned with the effect of the sale on the property in the goods sold.

D. Effective Date

Article 100(1) provides that the 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 [relevant Contracting States]." Subarticle (2) of Article 100 goes on to state that the convention will only apply to contracts concluded "on or after the date when the Convention enters into force in respect of the [relevant Contracting States]."

It will be important, therefore, to determine when the convention comes into force in the particular jurisdiction. The general rule of Article 99(2) is that the convention will become effective in a Contracting State "on the first day of the month following the expiration of twelve months after the date [the Contracting State becomes a party to the convention]." Thus, e.g., Sweden became a Contracting State on December 15, 1987 and the convention will enter into force as to Sweden on January 1, 1989.[16]

Illustration I. On September 13, 1988, a Wisconsin corporation offers to purchase equipment from a Mexican manufacturer. The convention will not govern the formation of this sales contract because the offer was made before the convention came into force in Mexico. Although Mexico became a Contracting State on December 29, 1987, the convention does not enter into force as to Mexico until January 1, 1989 as provided in Article 99(1). If, however the Mexican manufacturer does not accept the offer until after January 1, 1989 one has the anomalous situation where the offer will not be governed by the convention but the concluded contract will be by virtue of Article 99(2). The Wisconsin purchaser may avoid this result by including a carefully-worded clause in the offer excluding application of the convention to the completed contract.

E. Excluding or Including the Convention

The convention explicity endorses the principle of freedom of contract. Article 6 states:

"The parties may exclude the application of this Convention or, subject to article 12,[17] derogate or vary the effect of any of its provisions."

The most common application of Article 6 will be where the parties agree to specific contract terms that differ from the convention's provisions. If the parties agree, for example, to require a buyer to give notice of a defect no later than one year after delivery, this contract term will be enforced pursuant to Article 6 even though the convention provides for a two-year period in the absence of agreement.[18]

Article 6 also permits parties to exclude application of the convention altogether. To do so, the parties should put their agreement in writing and pay particular attention to the wording of their choice-of-law clause. It is advisable both to exclude application of the convention and also to state what law is applicable. Among the draft clauses proposed by commentators are the following suggested by the Department of State:[19]

"The rights and obligations of the parties under this agreement shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather, these rights and obligations shall be governed by the law of the State of New York, including its provisions of the Uniform Commercial Code.

"The rights and obligations of the parties under this agreement shall be governed by the law of the State of New York, including its provisions of the Uniform Commercial Code."

Although these clauses may appear cumbersome, problems may arise if care is not taken with the clause.

Illustration J. Importer has its place of business in New York; Exporter has its place of business in Argentina. Argentina is a Contracting State. Exporter and Importer enter into an international sales contract that provides: "This contract shall be governed by the law of New York." It may be argued that the sales convention has not been effectively excluded. The federal constitution clearly requires New York courts to enforce the convention as the supreme law of the land.[20] Reference to the "law of New York" is, therefore, ambiguous. When the parties used the phrase, however, they may have intended to have domestic sales law govern rather than the convention. The convention clearly recognizes that this intent should be enforced [21] but the intent may be difficult to prove, especially if the issue arises in the context of a dispute between the parties. The parties may persuade a court of their intent, but why buy a lawsuit when it could be avoided by express exclusion of the convention?

Whether Article 6 authorizes exclusion by implication is a question much debated by the commentators. The better reading of the drafting history and the convention's policy of enforcing the parties' intent would validate implied exclusions.[22]

Article 6 also suggests that the parties may agree to have the convention apply to contracts not otherwise governed by the convention. This would appear to be the case where the contract involves a transaction or form of property excluded by the convention itself because the agreement would be a variation of the convention text. Even here, however, there may be public policy limitations. It may, for example, be contrary to public policy to apply the convention to consumer sales or sales on execution of judicial process. When the convention is not applicable because the transaction does not fall within the scope of Article 1(1), the result is less clear. Most jurisdictions would presumably enforce the parties' agreement if the choice of the convention was reasonable but this would follow not from the text of Article 6 but rather from its underlying principle of freedom of contract.

Illustration K. Importer in California enters into a sales contract with Buyer in Nevada for the sale of equipment imported by the Importer from Australia pursuant to a contract governed by the convention. (The convention enters into force as to Australia on April 1, 1989.) The sales contract between the California Importer and the Nevada Buyer provides: "This contract shall be governed by the United Nations Convention on Contracts for the International Sale of Goods." The convention does not apply by its own terms because the sale is not between parties whose places of business are in two different Contracting States. A court should, however, enforce the agreement on the ground that it incorporates the convention's provisions by reference.[23]

III. Interpreting the Convention [24]

The convention provides guidelines for interpreting the convention and the parties' contract. Article 7(1) states that when interpreting the convention "regard is to be had to its international character and the need to promote uniformity in its application and the observance of good faith in international trade." Recognition of the need to promote uniform interpretation suggests that even in legal systems that do not recognize the doctrine of stare decisis there will be an acknowledgment of precedent. Unfortunately there is no mechanism at present for the collection of judicial opinions or arbitral awards construing the convention.

The reference in Article 7(1) to "good faith" is to an obligation to interpret the convention text to promote good faith and not to an obligation to perform contracts in good faith. This contrasts with the principle set out in the Uniform Commercial Code that parties have "an obligation of good faith in . . . performance or enforcement" of every contract or duty covered by the Code.[25]

Recognizing that there will be inevitable gaps in the convention's rules, Article 7(2) goes on state that these gaps are to be filled by application of the general principles underlying the convention. The convention does not state what these general principles are. In his commentary on the convention Professor John Honnold suggests that the following three principles are implicit in the text of the convention: (1) a duty to compensate a party for expenses incurred in reliance on the representations of the other party; (2) a duty to communicate information needed by the other party, and (3) a duty of the non-breaching party to mitigate the loss resulting from a breach of contract.[26]

Only if a gap-filling rule cannot be derived from these general principles is resort to be had to the national law of the nation whose law is applicable by virtue of choice-of-law rules. Even if the parties wish to have the convention govern their contract, therefore, it may be advisable to select a "back up" domestic law to fill gaps if this can be done with the cooperation of the other party. A contract term to this effect might read:

"Notwithstanding that the U.N. Convention on Contracts for the International Sale of Goods governs this contract, questions concerning matters not expressly settled by the convention or by the general principles on which it is based shall be resolved by application of the law of the State of Texas, including the Uniform Commercial Code as enacted in that state."

The convention also provides rules for interpreting the parties' agreement. These rules stress the need to carry out the parties' intent. Article 8 sets out rules for interpretation of this intent, stating that subjective intent prevails if both parties know or could not have been unaware of this intent. Otherwise statements are to be interpreted according to the understanding of a reasonable person of the same kind in the same circumstances.

Trade usage and course of dealing will supplement the parties written contract. Article 9(1) provides that the parties will be bound by their course of dealing no matter what their explicit agreement. The same sub-article states that the parties are bound by trade usages to which they agree. Sub-article (2) goes on to provide that the parties are also considered to have impliedly agreed to be bound by usages "which the parties knew or ought to have known and which in international trade [are] widely known to, and regularly observed by, parties to contracts of the type involved." This latter provision is narrower in scope than the equivalent provision in the Uniform Commercial Code.[27]

IV. Formation of the International Sales Contract [28]

The sales convention's formation provisions are found primarily in Part II (Articles 14-24). States that become parties to the convention are authorized by Article 92 to declare that they will not be bound by Part II. Only the Scandinavian countries have declared that they will not accept Part II.[29] Most U.S. enterprises will therefore find that Part II will apply when the convention is the governing law.

Although there are some differences in style and scope between the convention and the common law, the convention provides many of the same answers to contract formation problems as those found in Anglo-American law. As one commentator has noted:

"In style the articles in Part II [of the convention] follow the civilian model of a comprehensive collection of brief, general rules rather than the more detailed and convoluted statements found in common law legislation . . . In scope, Part II omits several matters the common lawyer would expect to find among formation rules. There is no statute of frauds, there is no reference to modification of a contract, and there is no requirement that there be consideration in order to have an enforceable contract."[30]

When one turns to the text of Part II, six formation problems deserve attention: (A) the lack of a statute of frauds; (B) the status of "parol" evidence; (C) the need to agree upon a "fixed" price; (D) the need to take care with "firm" offers; and (E) the "battle of the forms."

A. Statute of Frauds

The convention has no statute of frauds. Article 11 states that a contract "need not be concluded in or evidenced by writing and is not subject to any other requirements as to form. It may be proved by any means, including witnesses." A Contracting State is expressly authorized by Article 96 to declare that it will not be bound by this article. The United States has not made this declaration, but Argentina, China, and Hungary have done so.[31] The declaration by these countries does not mean that their formal requirements prevail. One must first determine which country's law governs by application of choice-of-law rules. A U.S. enterprise that enters into a contract with an enterprise that has its place of business in one of these countries may, theoretically at least, discover that the contract is governed by the law of the United States.

Both the convention and the laws of countries which make an Article 96 declaration differ from the Uniform Commercial Code. The Code requires a signed writing "sufficient to indicate that a contract for sale has been made between the parties" if the price of the goods is $500 or more.[32] In addition, the Code states that a contract is not enforceable beyond the quantity set out in the writing.

Despite this difference between the convention and the U.C.C., there is little indication that the convention's approach will cause difficulties in practice. So many countries already dispense with formalities that U.S. enterprises must already face claims of oral contracts. Even before the convention an enterprise could not be assured that the U.C.C., rather than some foreign law, would be the governing law. The practical response has been to establish guidelines for the conduct of agents when negotiating contracts and procedures for recording the status of negotiations. These prudent practices will undoubtedly continue under the convention. Where contracts are formed by sending formal offers and acknowledgement forms, the written offer may require the buyer's acceptance to be in writing as a condition to enforceability.

Illustration L. A Pennsylvania seller agrees orally to sell 1,000 widgets to a French buyer at an agreed price. France is a Contracting State that has not made a declaration pursuant to Article 96. By virtue of Article 11, the contract may be proved by any means in a U.S. court; a writing is not necessary.

B. Parol Evidence

The sales convention does not include a parol evidence rule that excludes evidence of a prior or contemporaneous agreement that contradicts the written terms intended to be final.[33] Article 8(3) of the convention provides that "due consideration is to be given to all relevant circumstances of the case including the negotiations" (emphasis added) when determining a party's intent. Parties may, however, agree upon a "merger" or "integration" clause excluding reference to this parol evidence. Such a clause will be respected by virtue of Article 6 of the convention.

Illustration M. Over a three-month period a Texas manufacturer negotiates with agents of the Egyptian Government for a long-term contract for the purchase of raw materials. Egypt is a Contracting State. The final contract document says nothing about who is to pay port costs and does not include a "merger" clause excluding reference to prior negotiations. Unless the parties have excluded application of the convention, a Texas court should admit proffered evidence that the parties had orally agreed that the manufacturer would bear these costs.

C. The "Fixed" Price

Article 14(1) requires that an offer "expressly or implicitly [fix] or [make] provision for determining . . . the price." This provision is less liberal than the Uniform Commercial Code, which supplies a "reasonable" price if the parties intended to conclude a sales contract without settling the price.[34]

The picture is confused somewhat, however, by Article 55 of the convention. This latter article provides a rule for determining the price "[w]here a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price." Commentators differ on whether this provision is inconsistent with Article 14. A simple explanation reconciling these two provisions is that Article 55 will apply in situations where a seller or buyer has its place of business in a Contracting State that has opted not to adopt Part II of the convention, e.g. Sweden.[35] This explanation leaves, however, very little scope for Article 55 and relies on an obscure reservation at the end of the convention. A prudent enterprise would not leave the matter to chance and would consequently make explicit reference to the price or to a mechanism for determining the price.

Illustration N. A Massachusetts corporation sends a purchase order to an Italian manufacturer for the purchase of light machinery. Italy is a Contracting State. Neither the purchase order nor the Italian manufacturer's acknowledgement form mentions a unit price. The Massachusetts corporation's purchase order apparently does not operate as an offer because of its failure to mention a price.[36] The Italian manufacturer's acknowledgement cannot, therefore, operate as an acceptance. Nor can the Italian manufacturer's acknowledgement operate as an offer, again because it fails to provide expressly for a price term. If the parties nevertheless perform as if they have entered into a contract presumably the seller can recover in quantum meruit, or a similar doctrine in Italian law, but this recovery may bear little relation to the price that a seller would hope to charge.

D. The "Firm" Offer

Article 16(2)(a) provides that an offer cannot be revoked if it indicates that it is irrevocable, "whether by stating a fixed time for acceptance or otherwise." This provision is a compromise between the common law rule (presumption of revocability) and the civil law rule (presumption of irrevocability). In the U.S., the Uniform Commercial Code changes the common law rule to make it more like the civil law but with significant limitations.[37]

Care should be taken to draft the offer clearly. This is especially important where contracting parties come from different legal systems with their different legal assumptions. In case of ambiguity as to whether the offer is revocable, the reader should determine the intent of the parties following the guidance of Article 8 as to subjective and objective intent. Evidence of intent will frequently be difficult to find, especially as the issue will be raised at a time when the parties are disputing with each other.

Illustration O. On March 1, Buyer, a Minnesota corporation, sends a letter to Seller, a French company, making an offer to purchase equipment and stating "this offer will lapse on March 15 unless I receive your notice of acceptance by that date." Buyer purports to revoke this offer on March 10. Article 8(1) states that Buyer's original letter should be "interpreted according to his intent where [Seller] knew or could not have been unaware what that intent was." In France, as a civil law country, it is assumed that a statement of a fixed time is irrevocable and Seller might not understand Buyer's subjective intent. Article 8(2) goes on to provide that if Seller did not know or could not know what Buyer intended by the wording of the letter, Buyer's statements are to be interpreted "according to the understanding that a reasonable person of the same kind as [Seller] would have had in the same circumstances." If the French Seller reasonably believes the offer is irrevocable and relies upon this belief, Article 16(2)(b) states that the offer cannot be revoked.

E. "Battle of the Forms"

The law has always had problems resolving issues when Seller acknowledges Buyer's order form with different or additional terms. This will be especially true when the parties have proceeded to perform on the assumption that they have an enforceable agreement. The common law rule is that an acknowledgement of an offer that made any change in the offer is a counter-offer (the "mirror image" rule). This rule tends to favor sellers. The Uniform Commercial Code makes the same acknowledgement an acceptance of the offer in many cases, with the additional term part of the contract if it is not material.[38] This rule tends to favor buyers.

Article 19 of the convention provides a strict "mirror image" rule. A reply that alters the offer is a counter-offer, unless the alterations are immaterial. By virtue of Article 19(3), however, most alterations will be deemed to be material. Commentators disagree about whether performance by the counter-offeree is acceptance of the counteroffer.[39] Article 18(1) states that "conduct of the offeree indicating assent to an offer is an acceptance" (emphasis added). It is not clear that actions taken (e.g., taking delivery of the goods) show an actual intent to accept the terms of the other party, especially as these terms frequently will not be known. If this performance is deemed an acceptance of the counter-offer, then sellers will be favored, as they were at common law. If however, this performance is not interpreted as an acceptance of the counter-offer, the convention does not have a rule that resolves this dispute and domestic law may govern pursuant to the gap-filling rules of Article 7(2). This result may not be desirable, but it is not clear that any other rule is clearly preferable. Parties will no doubt develop the boilerplate clauses purporting to deal with this problem -- with the same likely success as under the U.C.C.!

Illustration P. Buyer, a Virginia corporation, sends a purchase order to Seller, a Swedish company, ordering a specified quantity of steel coils. Sweden is a Contracting State. The purchase order does not contain an arbitration clause. Seller promptly responds with an acknowledgement form that includes an arbitration clause. After the exchange of forms, Seller delivers and Buyer pays for the coils. In a subsequent dispute as to the quality of the coils, must the dispute be submitted to arbitration? Article 19(3) considers the arbitration clause a material alteration and therefore Seller's acknowledgment is a counter-offer. Buyer's taking over of the steel coils might be construed as acceptance of the counter-offer under Article 18(1). If, however, Buyer's taking over of the steel coils does not indicate assent to the counter-offer then there is a gap in the convention to be filled pursuant to Article 7(2). Of course, if the parties have developed a course of dealing or there is a relevant usage of trade as to arbitration the course of dealing or usage will be applicable by virtue of Article 9.

V. Substantive Sales Provisions of the Convention

Part III of the convention governs the rights, obligations and remedies of parties to an enforceable sales contract. Most readers will find that the substance of Part III appears familiar. Although some provisions address the particular problems of sellers and buyers dealing with each other at a distance, most provisions contain rules similar to those found in modern domestic sales laws. The convention's statement about the obligations of the seller and buyer, for example, could be taken verbatim from domestic legislation. Article 30 states that the seller "must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention," while Article 53 provides that the buyer "must pay the price for the goods and take delivery of them as required by the contract and this Convention."[40]

The provisions of Part III are, of course, subject to the contrary agreement of the parties. In practice, form contracts will state the parties' obligations in more detail than found in the convention. Contracts may also tailor the parties' remedies. Subject to the general limitation that the convention does not address issues of validity, the parties' specific agreement will displace the convention's provisions.

A. Trade Terms

One particular way that parties may agree on detailed contractual terms is to adopt shorthand expressions found in trade terms. In the international context, the most widely used "codifications" of the trade terms are the delivery terms set out in the "INCOTERMS" published by the International Chamber of Commerce in Paris.[41] Specific trades may also agree upon similar shorthand expressions. While the sales convention does not expressly refer to trade terms, courts will undoubtedly find these terms applicable as general usage of the trade within the meaning of Article 9. To ensure this treatment, of course, the parties should expressly refer to any written codification of these terms.

Illustration Q. Argentine Exporter sells goods "C.I.F. Milwaukee (INCOTERMS, 1980)" to Wisconsin Importer. The contract does not otherwise provide for which party must contract for the carriage of the goods. In the absence of the trade term, Article 31(a) of the convention requires that Exporter "[hand] the goods over to the first carrier for transmission to [Importer]." The relevant 1980 INCOTERM issued by the International Chamber of Commerce in Paris states that Exporter must "[c]ontract on usual terms at his own expense for the carriage of the goods to the agreed port of destination. . . ."[42] By incorporating the INCOTERM into their contract, Exporter and Importer have agreed that the more detailed INCOTERM will displace the convention's provision.

B. Warranties of Quality

Domestic commercial sales contracts usually provide for express warranties and disclaim warranties of quality implied by law. The Uniform Commercial Code recognizes express warranties, the implied warranty of merchantability, and the implied warranty of fitness for a particular purpose. Parties may, however, disclaim these warranties or limit remedies for their breach.[43]

Article 35 of the sales convention provides for the same pattern to allocate the risk of defective quality. Sub-article (1) requires the goods and packaging to conform with the terms of the parties' contract. In the absence of agreement, sub-article (2) implies standards similar to those implied in the Uniform Commercial Code. Sub-article (2)(a), for example, states that the goods must be "fit for the purposes for which goods of the same description would ordinarily be used," a formula that is the heart of the warranty of "merchantability."[44] Likewise, sub-article (2)(b) restates the implied warranty of fitness for a particular purpose: goods must be "fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgment."[45]

As in Anglo-American law generally, the international seller is in default if the goods tendered do not conform to the contract or these implied warranties whether or not the non-conformity is the fault of the seller. At the same time, the convention authorizes the parties to agree to exclude or vary the effect of Article 35, subject only to possible limitations on the validity of such disclaimers under non-convention law.[46]

Illustration R. Texas Manufacturer enters into a contract to sell equipment to a Norwegian Buyer. Norway is a Contracting State. The written contract expressly disclaims any warranty as to quality beyond the specific warranties set out in the contract but the disclaimer is not conspicuous and does not use the word "merchantability." The convention is silent about conspicuousness or use of any particular language (e.g., "merchantability") in a warranty disclaimer varying the effect of Article 35, but the Uniform Commercial Code does.[47] It is conceivable that a Texas court would interpret the Code's requirements as an issue of validity and therefore, by virtue of Article 4(a), not governed by the sales convention. A better interpretation would be to conclude that the U.C.C. merely provides guidance for determining the parties' intent and therefore does not set out a rule of validity.[48]

C. Warranty of Title

Although, as noted earlier, the sales convention does not govern the effect that the sales contract may have on title to the goods sold, Article 41 of the convention does require the seller to deliver goods "free from any right or claim of a third party." Where a third-party's claim is based on industrial or intellectual property of which the seller should have known, Article 42 further requires the seller to deliver goods free of this claim under the laws of the place where the goods are to be sold or used or of the place where the buyer has its business.

D. Examination of Goods and Notice of Non-Conformity

When goods are delivered pursuant to a sales contract governed by the convention, the buyer "must examine the goods . . . within as short a period as is practicable in the circumstances."[49] If, as a consequence of this examination, the buyer discovers that the goods are non-conforming, the buyer must then notify the seller of this non-conformity "within a reasonable time after he has discovered it or ought to have discovered it."[50] Failure to notify the seller may bar the buyer from any remedy or, where there is a reasonable excuse for this failure, limit the remedies that can be invoked.[51] In any event, the buyer must give notice of any non-conformity no later than two years from the date the goods are actually handed over to the buyer unless the contract extends the warranty to future performance.[52] While not a statute of limitations, this two-year notice period will have the same effect in many cases.

Illustration S. Swedish Seller agrees to sell specialty steel to a Michigan small tool manufacturer. Sweden is a Contracting State. The delivered steel has a latent defect which renders it incapable of bearing the stress tolerance agreed upon by the contracting parties. Buyer examines the steel on delivery but does not discover the defect. Thirty months after the steel is processed, Buyer learns from its customers of the latent defect. In the absence of a contrary warranty term in the sales contract, Buyer has lost its right to rely on the non-conformity because more than two years have passed since the goods were handed over to it. Even if Buyer could be said to have a reasonable excuse for failing to give notice, there is no exception in Article 44 to Article 39(2)'s barring of a remedy.

VI. Remedies [53]

The sales convention has the same three basic types of remedies for breach of contract found in domestic sales laws: the right to recover damages, the right to call the contract off, and the right to full performance. Both the convention and the Uniform Commercial Code, for example, provide for compensation to a non-breaching party in the amount of the foreseeable loss of that party's expected gains, including incidental and consequential damages. The convention does, however, place greater emphasis on the possible remedy of specific relief, while it makes it more difficult for the non-breaching party to cancel the contract for breach by the other party. Parties dissatisfied with these different emphases may, of course, derogate from or vary effect of these convention provisions. Whether parties may provide for liquidated damages is left to domestic rules on the validity of such clauses.

The convention's remedy provisions are found in three principal clusters. Specific remedies of the buyer and seller are set out in parallel following the statement of the obligations of the seller and the buyer.[54] Common remedy provisions -- damages, anticipatory breach, installment contracts -- are brought together at the end of Part III.[55] In addition, the key concepts of "fundamental breach" and effective notice are found at the beginning of Part III.[56]

The concept of "fundamental breach" plays an important role in the remedy provisions. Only if there has been a fundamental breach may the non-breaching party cancel the contract or obtain specific forms of performance in kind.[57] Article 25 provides that a breach is fundamental "if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result."

A. Right to Cure

The seller whose contract is governed by the convention has the right to cure a non-conforming tender. If the time for performance agreed upon has not yet passed, the seller may cure the tender by timely performance as long as the cure "does not cause the buyer unreasonable inconvenience or unreasonable expense."[58] The buyer retains the right to recover damages but may not refuse to allow the seller to cure. After performance is due, the seller may cure if the buyer has not avoided the contract, the seller performs without unreasonable delay, and the cure does not cause the buyer "unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer."[59] Again, the buyer retains the right to collect damages. To clarify where the parties stand, the convention authorizes the seller to ask the buyer to state whether the buyer will accept the cure. If the buyer agrees or fails to respond to the seller's request, the seller may go ahead and the buyer will be barred from seeking an inconsistent remedy.[60]

B. Damages

As a practical matter, the non-breaching party will be concerned primarily with what damages may be recovered. The general formula is that the non-breaching party may recover as damages "a sum equal to the loss, including loss of profit, suffered by [the non-breaching party] as a consequence of the breach."[61] This formula includes incidental and consequential damages, but these damages may not exceed those foreseeable by the breaching party at the time of contracting. In addition, damages will be reduced by the amount in which the non-breaching party failed to mitigate.[62] Where a contract is "avoided" (canceled), damages are the difference between the contract price and either the market price or the price involved in a cover transaction.[63] No matter how the damages are calculated, the non-breaching party may recover interest pursuant to Article 78. Technically, interest is not considered to be part of the recovery of damages and Article 78 leaves the rate of interest to be determined by local law.

For the reader trained in Anglo-American law the "reduction of price" remedy provided in Article 50 may be a surprise. Under a formula ultimately traceable to Roman law, the buyer may reduce the price "in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time." This remedy will rarely be used because the general formula of Article 74 will usually yield the same or greater damages and will be easier to prove.

The convention is silent with respect to contract clauses limiting remedies or providing for liquidated damages. As has been noted before, while the convention endorses freedom of contract, questions of validity are left to national law.

C. Avoidance of the Contract

With only minor exceptions, the parties may avoid the contract only if the other party has committed or will commit "a fundamental breach" as defined by Article 25.[64] The effect of avoidance is to release the parties from their obligations subject to the right of the non-breaching party to recover damages.[65]

A party may avoid a contract even if there has not been a fundamental breach if the party follows a notice procedure.[66] This procedure, unknown in Anglo-American law, is derived from the German-law Nachfrist procedure. Following this procedure a non-breaching party may notify the other party that has not yet performed that the other party may perform within a further additional period. If the other party still fails to perform, the non-breaching party may avoid the contract even if the breach is not fundamental.

To avoid the contract rightfully the non-breaching party must notify the other party and return what has been received to the other party.[67] The notice must be given within a reasonable time after learning of the breach or the non-breaching party will lose its right to avoid the contract.[68] If the buyer avoids the contract it will have to restore any goods delivered in substantially the condition in which the buyer received them.[69] The buyer also must account to the other party for all benefits derived from the goods, while a seller must pay interest on any sum it must return to the buyer.[70]

Where the non-breaching party possesses goods which it rejects or the other party has refused to accept, the non-breaching party has a duty to preserve the goods.[71] A buyer who avoids the contract, for example, must take reasonable steps to preserve the goods. It may store the goods or, where the seller fails to act promptly, even sell the goods following notice to the seller.[72] Failure to perform this obligation subjects the non-breaching party to damages.

D. Specific Performance

In the array of remedies presented by the sales convention, primacy is given to specific performance.[73] This emphasis is consistent with civil law theory and even in Anglo-American systems more and more attention is being given to this remedy. To satisfy the common law countries hostile to specific performance, the convention provides that a court is not bound to order specific performance unless it would do so under its own law in respect of similar contracts.[74]

Even if a court is willing to order specific performance, the form of performance ordered will vary with the context. A buyer may require delivery of substitute goods if the non-conformity is "a fundamental breach of contract."[75] Requiring the seller to repair goods is more likely because the seller must comply "unless this is unreasonable having regard to all the circumstances" rather than the stricter fundamental breach test.[76] Courts in the United States, however, are unlikely to order a domestic seller to deliver substitute goods or to repair [77] and will be unlikely, therefore, to order international sellers to do so.

VII. Conclusion

When they examine the convention, U.S. businesses will discover that the convention offers an attractive alternative to domestic sales law. The convention takes into account international trading practices and eliminates archaic provisions found in older national laws. Unlike some of these national laws, the convention is not highly conceptual and instead makes the parties' rights and obligations turn whenever possible on factual events, such as the handing over of the goods. If the convention applies to a contract dispute, there will be far less need to study the provisions of foreign law or to consult non-uniform conflict of law rules.


FOOTNOTES

* Peter Winship is Professor of Law at Southern Methodist University, where he teaches commercial and corporate law courses. Professor Winship has degrees from Harvard College, Harvard Law School, and the University of London. Since joining the faculty at S.M.U. he has been a visiting professor at the University of Texas, the University of California, Berkley, and U.C.L.A. He is the author of a commercial law casebook and numerous law review articles on commercial law and international trade, with special emphasis on the U.N. sales convention. He chaired the A.B.A. subcommittee that recommended that the United States become a party to the sales convention and he has served as an adviser to the Secretary of State's Advisory Committee on Private International Law.

1. United Nations Convention on Contracts for the International Sales of Goods, A/CONF.97/18. Annex I (1980), reprinted in United Nations Conference on Contracts for the International Sale of Goods, Official Records, A/CONF.97/19, at 178 (1981) (U.N. Sales No. E.82.V.5). Hereafter the convention will be cited "CISG art. ____________".

The official English language text of the convention is reproduced at 52 Fed. Reg. 6264 (1987). An unofficial reproduction of the six official language versions is found in R. Kathrein & D. Magraw eds. The Convention for International Sale of Goods: A Handbook of Basic Materials (Chicago: A.B.A. Section of International Law & Practice, 1987).

2. For a list of these commentaries, see Winship, A Bibliography of Commentaries on the United Nations International Sales Convention, 22 Int'l Law. 585 (1987), updated at 22 Int'l Law 605 (1988). The principal longer commentaries are J. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (Boston: Kluwer, 1982), and C. Bianca & M. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Colo: Rothman, 1987).

3. For further reading on the convention's background, see Winship, The Scope of the Vienna Convention of International Sales Contracts, in N. Galston & H. Smit, eds., International Sales (New York: Matthew Bender, 1984).

4. The 21 states are Austria, Chile, Czechoslovakia, Denmark, Finland, Federal Republic of Germany, France, German Democratic Republic, Italy, Ghana, Hungary, Lesotho, Netherlands, Norway, People's Republic of China, Poland, Singapore, Sweden, U.S.A., Venezuela, and Yugoslavia.

5. Countries presently considering accession are Czechoslovakia, Denmark, Federal Republic of Germany, German Democratic Republic, Netherlands, Poland, Spain, and Switzerland.

6. For citations to the Congressional materials, see Winship, supra note 2, at 594-95. See generally Winship, Congress and the 1980 International Sales Convention, 16 Ga. J. Int'l & Comp. L. 707 (1986).

7. The official texts of the 1964 uniform laws are appended to the sales conventions published officially in 834 U.N.T.S. 107 & 169 (1972) and unofficially in 3 Int'l Legal Materials 333 and J. Honnold, supra note 2, 531 & 539 (1982). As of January 1, 1988, the uniform laws are in force in Belgium, Gambia, the Federal Republic of Germany, Israel, the Netherlands, San Marino, and the United Kingdom. Italy repealed the uniform laws when it became a party to the 1980 convention. CISG art. 99(3), (6).

8. The 1978 draft text is published officially in Official Records, supra note 1, at 5 (1981), and unofficially in 18 Int'l Legal Materials 639 (1979) and J. Honnold, supra note 2, at 511.

9. The final text and conference proceedings are published in Official Records, supra note 1. These records may be purchased (Sales No. E.82.V.5) from United Nations Publications, Room GA-32, United Nations, New York, N.Y. 10017.

10. See generally Reczei, Area of Operation of the International Sales Conventions, 29 Am. J. Comp. L. 513-522 (1981); Winship, The Scope of the Vienna Convention on International Sales Contracts, in N. Galston, & H. Smit eds., supra note 3, at ch. 1.

11. CISG art. 6.

12. For a brief explanation of the reasoning of the United States, see Department of State, Legal Analysis of the United Nations Convention on Contracts for the International Sale of Goods (1980), Appendix B, Treaty Doc. No. 98-9, 98th Cong., 1st Sess. (1983).

13. CISG art. 2(b)-(c).

14. CISG art. 2(d)-(f).

15. CISG arts. 41-43.

16. For current information about countries that have ratified the convention, one may contact the Treaty Section of the Office of Legal Affairs, United Nations, New York, N.Y. 10017 (tel.[212]963-3918).

17. Article 12 prohibits parties from derogating from or varying the effect of a Contracting State's declaration pursuant to Article 96 that it will not apply the convention's rules that do not require a writing.

18. CISG art. 39(2).

19. Department of State response, reprinted in R. Kathrein & D. Magraw eds., supra note 1, 93-94 (1987).

20. U.S. Constitution, Art. VI.

21. CISG art. 8.

22. See Winship, International Sales Contracts under the 1980 Vienna Convention, 17 U.C.C.L.J. 55, 65 (1984).

23. See U.C.C. 1-105, Comment 1 (1987).

24. See generally J. Honnold, supra note 2, at 85-103; Bonell, Article 7, C. Bianca & M. Bonell eds., supra note 2; and Eörsi, General Provisions, in N. Galston & H. Smit eds., supra note 3, at ch. 2.

25. U.C.C. 1-203 (1987).

26. J. Honnold, supra note 2, at 99.

27. See U.C.C. 1-205 (1987).

28. For more detailed commentary on contract formation, see Murray, An Essay on the Formation of Contract and Related Matters Under the United Nations Convention on Contracts for the International Sale of Goods, 8 J.L. & Com. 11 (1980); Winship, Formation of International Sales Contracts under the 1980 Vienna Convention, 17 INT'L LAW.1 (1983).

29. Note by Secretariat, Status of Conventions at 2 (A/CN.9/304) (February 19, 1988).

30. Winship, supra note 28, at 4-5.

31. Note by Secretariat, supra note 29, at 2.

32. U.C.C. 2-201 (1987).

33. Cf. U.C.C. 2-202 (1987).

34. U.C.C. 2-305 (1987).

35. See CISG art. 92.

36. The price term may, however, be supplied by implication and thus course of dealing and usage of trade may fill the apparent gap. CISG art. 9.

37. U.C.C. 2-205 (offer enforceable if signed assurance that it will be held open for not longer than three months; separate signature required if form supplied by offeree).

38. U.C.C. 2-207 (1987).

39. Vergne, The "Battle of the Forms" under the 1980 United Nations Convention on Contracts for the International Sale of Goods, 33 Am.J. Comp.L. 233-258 (1985).

40. Cf. U.C.C. 2-301 ("The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract").

41. International Chamber of Commerce, INCOTERMS: International Rules for the Interpretation of Trade Terms (ICC Publication No. 350) (1980).

42. Id. at 48 (para. A.2).

43. U.C.C. 2-313 through 2-316, 2-719 (1987).

44. Cf. U.C.C. 2-314(2)(c) ("fit for the ordinary purposes for which such goods are used") (1987).

45. Cf. U.C.C. 2-315 (1987).

46. CISG arts. 4(a), 6.

47. U.C.C. 2-106(2)(1987).

48. See CISG art. 8 (rules for determining parties' intent). For analysis of this problem, compare J. Honnold, supra note 2, at 257-259 (1982) ( 2-316 merely guide to interpretation), with Longobardi, Disclaimers of Implied Warranties: The 1980 United Nations Convention on Contract for the International Sale of Goods, 53 Fordham L. Rev. 863 (1985) ( 2-316 raises issues of validity).

49. CISG art. 38(1).

50. CISG art. 39(1).

51. CISG art. 39(1), 44.

52. CISG art. 39(2).

53. See generally Farnsworth, Damages and Specific Relief, 27 Am. J. Comp. L. 247-253 (1979); Flechtner, Remedies Under the New International Sales Convention: Perspective from Article 2 of the U.C.C., 8 J.L. & Com. 53 (1988); Ziegel, The Remedial Provisions in the Vienna Sales Convention: Some Common Law Perspectives, in N. Galston & H. Smit eds., supra note 3, ch. 9 (1984).

54. CISG arts. 45-52 (buyer's remedies); arts. 61-65 (seller's remedies).

55. CISG arts. 71-72 (anticipatory breach); 73 (installment contracts); 74-77 (damages); 78 (interest); 81-84 (effects of avoidance); 85-88 (preservation of the goods).

56. CISG arts. 25-26.

57. CISG arts. 49(1)(a), 64(1)(a), 46(2).

58. CISG art. 37.

59. CISG art. 48.

60. CISG art. 48(2).

61. CISG art. 74.

62. CISG art. 77.

63. CISG arts. 75-76. Cf. U.C.C. 2-706, 2-708(1), 2-712, 2-713 (1987).

64. CISG arts. 49, 64, 72.

65. CISG arts. 81-84.

66. CISG arts. 47, 49(1)(b), 63(1), 64(1)(b).

67. CISG art. 81(2).

68. CISG arts. 49(2)(b), 64(2)(b).

69. CISG art. 82(1).

70. CISG arts. 84(1), (2).

71. CISG arts. 85-88.

72. CISG arts. 87-88.

73. See CISG arts. 46, 62.

74. CISG art. 28.

75. CISG art. 46(2).

76. CISG art. 46(3).

77. See U.C.C. 2-716(1) ("[s]pecific performance may be decreed where the goods are unique or in other proper circumstances").


Pace Law School Institute of International Commercial Law - Last updated December 7, 1998

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