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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

8th meeting

Monday, 17 March 1980, at 10 a.m.

Chairman: Mr. LOEWE

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF ARTICLES 1-82 OF THE DRAFT CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND OF DRAFT ARTICLE "DECLARATIONS RELATING TO CONTRACTS IN WRITING" IN THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES FOR THE DRAFT CONVENTION (agenda item 3) (A/CONF.97/5, 6) (continued)

3
Article 3 [became CISG article 3 ] (continued)
(A/CONF.97/C.1/L.72)

1. The CHAIRMAN invited the Committee to consider a new text for article 3 [became CISG article 3 ] drawn up by a working group consisting of several delegations representing different legal systems. He reminded the meeting that, during the preceding week, the Committee had rejected in principle all the draft amendments to article 3 [became CISG article 3 ] but had agreed that delegations who thought they could submit a more satisfactory text might do so.

2. Mr. FARNSWORTH (United States of America) said that the new text was not very different from the existing text. In view of the proposal made by Norway when the article was under consideration, the working group had inverted the order of the paragraphs as it seemed desirable to indicate in the first paragraph those contracts which fell within the scope of the Convention, and in the second those which were excluded. The working group had then made a slight formal change to paragraph 1 of the existing text in order to establish a parallel with the wording in paragraph 2, particularly since the reference to the "sellers" was not very clear in that his obligations consisted essentially of providing services.

3. The CHAIRMAN, noting that the working group was comprised of delegations representing practically every region of the world, said he felt that the new text might be regarded as the result of a compromise and accepted without new discussion.

4. Mr. HERBER (Federal Republic of Germany) said he noted that the wording of paragraph 1 of the new article was not completely in line with that of paragraph 2 and he wondered if it would not be appropriate to replace the word "furnishes" by the words "is to furnish" in the second line of paragraph 2 in order to make it clear that the reference was to the obligation under the contract.

5. Mr. FARNSWORTH (United States of America) said that the parallel was in the substance of the article and not in the terms employed. "Substantial part" in paragraph 1 corresponded to "preponderant part" in paragraph 2.

6. Mr. ROGNLIEN (Norway) said that he feared that, if the Committee delayed over matters of form, it would not have sufficient time to consider all the matters of substance. It should, in principle, send all formal matters to the Drafting Committee. He urged the Committee to abide by that principle.

7. The CHAIRMAN said that, in the absence of any objection, he would take it that the Committee wished to refer the new text of article 3 [became CISG article 3 ] to the Drafting Committee.

8. It was so decided.

12, 96
Article 11 and article (X) [became CISG article 12 and CISG article 96 ]
(A/C0NF.97/C.1/L.35, L.42, L.71 and L.76)

9. The CHAIRMAN invited the Secretariat to outline what had been decided concerning article (X) [became CISG article 96 ], which was theoretically included among the articles to be considered by the Second Committee but which was closely related to articles 10 and 11 [became CISG article 11 and CISG article 12 ].

10. Mr. VIS (Executive Secretary of the Conference) said that, at the plenary meeting, article (X) [became CISG article 96 ] had been referred to the First Committee but that if, in the course of the discussion, the Committee concluded that the article formed part of the work of the Second Committee, it should propose at a plenary meeting that its mandate be modified accordingly.

11. Mr. REISHOFER (Austria) said that his country's draft amendment (A/CONF.97/C.1/L.42) related to both the form and substance of article 11 [became CISG article 12 ]. On the question of form, his delegation proposed that article 11 [became CISG article 12 ] be deleted and its provisions incorporated in article (X) [became CISG article 96 ], since it did not think it necessary to retain in the Convention two separate articles relating to the same question.

12. On the question of substance, under the existing article, reservations made by one State bound all other States, which was not justified. In the event that a contract concluded verbally between States, one of which had entered a reservation and the other had not, gave rise to litigation and the litigation in question came under the jurisdiction of the second State, the judge would be required to respect the reservation and declare that the contract was not valid. Certainly, there were States whose legislation imposed reservations but, in such a case, the application of those reservations should be limited to the territory coming under the jurisdiction of the State concerned, to the exclusion of others.

13. Nonetheless, he preferred to leave the parties completely free to define the form of their contracts of sale and consequently he was proposing as an alternative possibility the deletion of articles 11 and (X) [became CISG article 12 and CISG article 96 ].

14. Mr. SEVÓN (Finland) said he could not support the Austrian draft amendment.

15. Mr. FELTHAM (United Kingdom) said he was not satisfied with the compromise represented by articles 11 and (X) [became CISG article 12 and CISG article 96 ], essentially because of uncertainties which might give rise to situations such as that just mentioned by the representative of Austria which showed that States which had not entered a reservation might find themselves in difficulties. Furthermore, his delegation was not sure that, faced with a situation of that kind, the judge in a State which had not entered a reservation would necessarily declare that the contract was not valid since, while article 11 [became CISG article 12 ] excluded the application of certain provisions of the Convention, it did not provide for a positive replacement formula such as an obligation to conclude a contract in writing. His delegation could not take up a stronger position on those articles because it did not wish thereby to prevent States from acceding to the Convention.

16. Mr. HJERNER (Sweden) and Mr. MEIJER (Netherlands) said that they could not support the Austrian proposal either.

17. The CHAIRMAN, noting that no delegation had supported the Austrian draft amendment, said that he would take it that the Committee wished to reject it.

18. It was so decided.

19. Mr. MEIJER (Netherlands) said that his delegation had submitted two separate draft amendments (A/CONF.97/C.1/L.71 and L.76) because it had thought that article (X) [became CISG article 96 ] and article 11 [became CISG article 12 ] would be considered separately. Bearing in mind the fact that article 11 [became CISG article 12 ] was the result of compromise, it had been concerned lest its proposals might jeopardize that compromise but was now sure that such was not the case.

20. He noted that there was a difference between the English and the French texts of article (X) [became CISG article 96 ]: the English text referred to "a contract of sale" in the singular, while the French text had "les contrats de vente " in the plural. The French text gave the impression that only a country whose legislation required that all contracts of sale had to be concluded or evidenced in writing could make a declaration, whereas the English text permitted the interpretation that, if a particular category of contract had to be concluded in writing, the State concerned could make a declaration which would relate to all contracts in that category. His delegation's draft amendment was first of all designed to remove that difference in order to make it clear that a State whose legislation had requirements as to the form of only some types of contracts of sale could not make a declaration with respect to all types of contracts. Secondly it proposed to settle the matter in a more flexible manner. A State whose legislation required a certain category of contracts of sale to be in writing would have the right to make a declaration under that article, but only as regards contracts in the same category. That would not affect the right of States having a general requirement to make a general declaration.

21. Concerning article 11 [became CISG article 12 ], the Netherlands was proposing a formal change which would come into effect if its draft amendment to article (X) [became CISG article 96 ] were accepted.

22. Mr. MEDVEDEV (Union of Soviet Socialist Republics) and Mr. HJERNER (Sweden) said that the Netherlands proposal concerning the first sentence of article 11 [became CISG article 12 ] (A/CONF.97/C.1/L.71) was not only a question of drafting but also a matter of substance. They were prepared to support it or to agree that it should be sent to the Drafting Committee.

23. The CHAIRMAN suggested that, if there were no objection, the Netherlands proposal relating to the first sentence of article 11 [became CISG article 12 ] should be referred to the Drafting Committee.

24. It was so decided.

25. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that his delegation had submitted an amendment (A/CONF.97/C.1/L.35) that a reference to article 24 [became CISG article 26 ] should be added to both article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ] because the meaning of the English word "abrogation" in article 11 [became CISG article 12 ] did not seem to be very clear and it would like to see it clarified.

26. Mr. FARNSWORTH (United States of America) said that the word "abrogation" did not correspond to a precise legal concept in the United States. It could apply either to termination by mutual agreement or to unilateral termination. However the term was used several times in article 27 [became CISG article 29 ] in the sense of termination by mutual agreement. It could therefore be considered to have the same meaning throughout the text of the Convention. Therefore, it would perhaps be preferable to replace it by the expression "termination by mutual agreement", which would be less ambiguous.

27. Mr. SEVÓN (Finland) supported the proposal by the United States representative.

28. Mr. SHAFIK (Egypt) said he noted that the word "résiliation " had been used in the French text. It seemed to him that it was rather a question of "résolution " and he would like to have the opinion of the French-speaking delegations on that point.

29. The CHAIRMAN suggested that a small committee or working group should be formed to study that question of terminology.

30. Mr. HJERNER (Sweden) said he was not opposed to the formation of a working group but felt that it was not simply a question of drafting. It was very important that the requirement for the written form should not apply to the declaration of avoidance. If the word "abrogation" was interpreted as meaning "termination by mutual agreement", the Soviet delegation's problem would be solved.

31. Mr. SEVÓN (Finland) said that, in order to gain time, he hoped that the Chairman would ask the members of the Committee if they agreed that the word "abrogation" should be replaced by the expression "termination by mutual agreement" in the English text.

32. Mr. FELTHAM (United Kingdom) said that if the word "abrogation" were replaced by "termination by mutual agreement", it would no longer be necessary to refer to article 24 [became CISG article 26 ], which referred to a type of unilateral declaration. He did not wish to jeopardize the compromise that had been arrived at, but it would be difficult for him to agree that its scope should be broadened to take in unilateral declarations of termination.

33. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that, if the Committee considered that the word "abrogation" in articles 11 [became CISG article 12 ] and (X) [became CISG article 96 ] meant termination by mutual agreement, he would not insist that a reference to article 24 [became CISG article 26 ] be included in article 11 [became CISG article 12 ].

34. Mr. KRISPIS (Greece) said that he understood that the term "abrogation" could be applied to both unilateral termination and termination by mutual agreement and that it had both those meanings in article 11 [became CISG article 12 ]. If such was the case, there was no need to refer to article 24 [became CISG article 26 ].

35. Mr. BOGGIANO (Argentina) said that, in the Spanish text of article (X) [became CISG article 96 ], the term "rescisión" was used, which also meant unilateral termination. The different language versions of articles 11 [became CISG article 12 ] and (X) [became CISG article 96 ] should therefore be brought into line with the English text, in order to take account of the Soviet proposal.

36. Mr. HJERNER (Sweden) said that the question of deciding whether the term "abrogation" included declarations of avoidance had already been considered at the time the compromise was reached. At that stage, English had been more or less the working language of the representatives concerned. He thought that the United States representative had given a sound interpretation of the word "abrogation" and that the Soviet proposal (A/CONF.97/C.1/L.35) was no longer called for. The different language versions of article 11 [became CISG article 12 ] and (X) [became CISG article 96 ] would, of course, have to be harmonized.

37. Mr. HERBER (Federal Republic of Germany) said that it seemed from the words "or other indication of intention" in article 11 [became CISG article 12 ], that the USSR interpretation on that point was correct and that all unilateral declarations were meant, including declarations of avoidance.

38. The CHAIRMAN, noting that the members of the Committee seemed to agree that the term "abrogation" meant termination by mutual agreement and not unilateral termination, suggested that, if the Soviet Union agreed to withdraw its amendment, the Drafting Committee should be given the task of deciding on the expression to be used in all languages and that the Committee should consider the Netherlands proposal (A/CONF.97/C.1/L.71).

39. It was so agreed.

40. Mr. HERBER (Federal Republic of Germany) said that the Netherlands proposal to include in article (X) [became CISG article 96 ] the expression "all or certain types of contracts of sale" raised a number of problems. Some national legislations specified that contracts should be made in writing in only a very few cases, whereas, when the Soviet reservation was being considered, the case envisaged had been that where a national legislation specified that, in principle, contracts should be made in writing. If a national legislation provided that the written form should be used in certain specific cases only, should the State in question declare that it reserved the right to impose the written form in certain cases without specifying which, or should it rather state in which specific cases the written form was required? Should States whose legislation required the written form in exceptional cases only enter an express written reservation and give notice of the fact? In any case, he thought that certain clarifications of a technical nature should be added to the provision in order to facilitate its application. First, it should be stated in the final clauses that the other States must be informed by the depositary of the reservations of a State on the subject. Secondly, since it seemed clear that cases where the written form was required only exceptionally were also covered, it would have to be possible to enter a reservation, not only at the time of signature, ratification or accession, but also at any subsequent time, in order to ensure that a country which adopted the written form for any type of contract after it had signed the Convention would not be obliged to denounce the Convention. Thirdly, the same should apply to cases in which a country wished to withdraw its reservation.

41. He approved of the Netherlands proposal but thought that it might be as well, in order to save time, to submit the technical amendments he had proposed to the Second Committee.

42. The CHAIRMAN said that it was a matter of deciding if the provision in question applied to cases where certain contracts only had to be made in writing or to cases where all contracts had to be made in writing. That question did not seem to be a substantive one. Any country could always make a partial reservation. The technical questions raised by the Federal Republic of Germany were completely logical and should be submitted to the Second Committee.

43. Mr. FARNSWORTH (United States of America) said that he found it difficult to agree to the Netherlands proposal; At the tenth session of UNCITRAL at Vienna, it had been decided that the written form would not be compulsory, although many countries such as the United States required it for most contracts. The USSR had considered it important to add a reservation similar to that contained in article (X) [became CISG article 96 ]. Most countries had agreed to that proposal but their intention was not to allow too many countries to make reservations, either partial or total. The aim was merely to remove the difficulties which might be encountered by the USSR or perhaps by other countries where the State was responsible for international trade. The greater the number of reservations under article (X) [became CISG article 96 ] the less useful would the Convention be. Consequently he could not agree to the proposals by the Netherlands and the Federal Republic of Germany.

44. Mr. MEIJER (Netherlands), referring to the technical problems raised by the representative of the Federal Republic of Germany, said that the last of them, on the withdrawal of reservations, was dealt with in article H(6) [became CISG article 97 ]. He saw no reason to oppose the other amendments proposed by that representative. In reply to the representative of the United States, he said that it was not his delegation's intention to encourage a large number of Contracting States to make reservations; there was however, one difficulty, arising from the differences between the French and English texts of article (X) [became CISG article 96 ], which would have to be dealt with, first by the First Committee and then by the Drafting Committee. If a reservation could be made by a State whose law simply required that a given type of contract of sale should be concluded in writing, as seemed to be the case from the English text of article (X) [became CISG article 96 ], it would be difficult for his delegation to agree to that provision. The French text of the article, which referred to "contracts of sale", seemed to him more satisfactory, because in that case, reservations would only be made by States whose law required the written form for "contracts of sale" in general, i.e., all or most of them. Nevertheless, his delegation would favour the possibility of partial and specific declarations if that would make the Convention more attractive for other States which wished to extend their formal requirements of a partial nature to the international contracts of sale concerned.

45. Mr. KRISPIS (Greece) said that he did not share the concern of the United States representative over the declarations referred to in article 11 [became CISG article 12 ]. Procedural questions were very important to the courts and in many countries the question of evidence was a procedural problem governed by the lex fori. If the Convention did not settle procedural questions, it would be the lex fori which did so and in most countries that law accepted only written evidence.

46. He supported the technical proposals made by the representative of the Federal Republic of Germany, but would like the expression "certain types of contracts" in the text proposed by the Netherlands to be replaced by "contracts of sale for certain kinds of goods".

47. Mr. DATE-BAH (Ghana) said that like the representative of the United States he thought that the agreement reached on article 11 [became CISG article 12 ] was designed merely to eliminate the obstacles which might be encountered by the Soviet Union. It did not seem to him possible under the original text to make a partial reservation. He would even propose that it should be decided that it would not be possible for a country to make a reservation unless its law required the written form for all contracts. A number of countries had shown themselves ready to sacrifice their national law in the interests of making the law uniform. In any case, he could not support the proposal by the representative of the Netherlands.

48. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that the members of the First Committee had already taken a positive position on article 11 [became CISG article 12 ], which had been sent to the Drafting Committee. Article (X) [became CISG article 96 ] was a logical follow-up to article 11 [became CISG article 12 ].

49. With regard to the specific proposals by the Federal Republic of Germany, it appeared from the explanations given by the Executive Secretary concerning the terms of reference given by the plenary Conference to the First Committee that the latter was empowered to consider them, after possible revision by the Drafting Committee.

50. Mr. VISCHER (Switzerland) said that there was a contradiction between article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ]. Obviously, the aim of article 11 [became CISG article 12 ] was to impose the written form when one of the parties had its place of business in a State which had made a reservation; but that aim was not clearly expressed in the text of the article, which merely indicated that certain provisions did not apply, but did not state legal criteria applicable in the cases where a form other than writing had been used in a country which had not made a declaration. The lack of precision in the texts of articles 11 [became CISG article 12 ] and (X) [became CISG article 96 ] gave rise to different interpretations, and they should be redrafted.

51. The CHAIRMAN said that the points of view of some delegations were similar and could be reconciled.

52. Mr. SAMI (Iraq) said that he was in favour of the proposals by the Federal Republic of Germany which would render possible a more flexible interpretation of article 11 [became CISG article 12 ]. That was a very important consideration for the developing countries whose law was in constant evolution and generally offered the possibility of concluding contracts both orally and in writing. The proposals by the Federal Republic of Germany would make it easier for those countries to accede to the Convention and, if necessary, to enter reservations after signature, ratification or accession. He thought that the proposals by the Federal Republic of Germany should be forwarded to the Second Committee without delay, so that it could take them into account for the final drafting of article (X) [became CISG article 96 ].

53. Mr. BOGGIANO (Argentina) said that the Netherlands proposal would give rise to uncertainties as to the categories of contracts of sale for which Contracting States could make reservations. The text of the draft amendment said that they were contracts for international sale but there could be types of subcontracts for which the situation would be less clear. It might be wondered what criteria and methods would then be used to determine those subcontracts, and whether there would not be serious risks of conflict between various legal systems. Consequently, he was in favour of maintaining the existing text of article 11 [became CISG article 12 ].

54. Mr. GHESTIN (France) said that he did not consider the Netherlands proposal to be a purely drafting amendment but an important substantive amendment. The existing text of draft article 11 [became CISG article 12 ] took into account the fact that some States considered it to be an important element of public policy that the modification or abrogation of all contracts of sale should be in writing. The Netherlands proposal substantially increased the number of States authorized to enter a reservation by offering that possibility to those for whom only certain contracts had to be in writing. Moreover, since such contracts varied from State to State that would constitute a serious complication. The purpose of the Convention was to bring uniformity to contracts for the international sale of goods and it was certain that, as the representative of the United States had said, too many reservations would lessen the usefulness of the Convention. Consequently, the existing text, which seemed to establish a satisfactory balance for all systems, should be maintained.

55. The CHAIRMAN said that the discussion had shown that there were two principal tendencies: some delegations were in favour of the indivisibility of reservations expressed by a State, which could be made only if a provision that contracts should be concluded in or evidenced by writing existed in the national law; other delegations considered that it should be possible for reservations to be divisible, i.e., that it should be possible to make a distinction for certain trade operations, for the trade operations of certain persons or for certain goods.

56. He proposed that the Committee should take a decision on the Netherlands amendment.

57. Mr. FARNSWORTH (United States of America), speaking on a point of order, asked if the Chairman intended to put to the vote the suggestions made by the representative of the Federal Republic of Germany.

58. The CHAIRMAN said he thought that the Netherlands amendment should be voted on first. It was important to decide whether the reservation could be used for all sales transactions or only in specific cases, which would enable States to make partial reservations.

59. The Netherlands amendment (A/CONF.97/C.1/L. 76) was rejected.

60. The CHAIRMAN invited the members of the Committee to express their views on the suggestions submitted orally by the representative of the Federal Republic of Germany (see paragraph 40).

61. Mr. HERBER (Federal Republic of Germany) said he proposed, more precisely, that the words "or at any time thereafter" should be added after "ratification or accession" in article (X) [became CISG article 96 ]. [The amendment by the Federal Republic of Germany was subsequently issued as document A/CONF.97/C.1/L.96.]. If the members of the First Committee managed to reach agreement on that amendment, it would facilitate the work of the Second Committee.

62. The CHAIRMAN, noting that there was no objection to the amendment, said that it would be transmitted to the Second Committee with article (X) [became CISG article 96 ].

63. The first sentence of article 11 [became CISG article 12 ] would also be transmitted to the Second Committee, which would consider it at the same time as article (X) [became CISG article 96 ]. The Drafting Committee would then be asked to review the text in the light of the results of the discussion in the Committees.

64. Lastly, since it was understood that a declaration of abrogation of contract was valid only if it was made by means of notification to the other party, the USSR proposal (A/CONF.97/C.1/L.35) had no further purpose.

65. Mr. FELTHAM (United Kingdom) asked if the two proposals submitted by the United Kingdom concerning article (X) [became CISG article 96 ] would be forwarded to the Second Committee.

66. The CHAIRMAN replied in the affirmative.

The meeting was suspended at 11.45 a. m. and resumed at 12 noon.

14, 55
Article 12 [became CISG article 14 ]
(A/CONF.97/C.1/L.29, L.36, L.37, L.38, L.46, L.55 and L.69)

67. The CHAIRMAN pointed out that several amendments to the article, in particular those of the United Kingdom (L.36), Norway (L.38), Austria (L.46) and United States (L.55) had the same purpose, namely to delete the second sentence of paragraph 1.

68. Mr. FELTHAM (United Kingdom), introducing his delegation's proposal (A/CONF.97/C.1/L.36), explained that in view of the fact that article 51 [became CISG article 55 ] included a provision indicating the method of determining the price when that was not expressly or impliedly indicated in the contract, his delegation saw no need to maintain the second sentence of article 12 [became CISG article 14 ], according to which a proposal for a contract should fix the price expressly or implicitly. The commentary on article 51 [became CISG article 55 ] implied that if a State had ratified parts II and III of the Convention, the contract might not be valid if the price had not been determined. To avoid any difficulty it was preferable therefore to delete the second sentence and leave it to article 51 [became CISG article 55 ] to settle situations in which the contract offer did not contain a provision fixing the price to be paid.

69. Moreover, the first sentence of paragraph I gave an adequate definition of an offer, by stating that it should be sufficiently definite and should indicate the intention of the offerer to be bound in case of acceptance, and his delegation could see no need to add provisions which might lead to controversy.

70. Mr. SHAFIK (Egypt) said he fully supported the United Kingdom proposal to delete the last sentence of paragraph 1. That sentence was given more as an example than as a rule and it would be preferable to delete it.

71. Mr. ROGNLIEN (Norway) explained that the Norwegian proposal (A/CONF.97/C.1/L.38) was either to delete the sentence or redraft it. If the First Committee decided to maintain the second sentence of paragraph 1, his delegation could accept a formula similar to that in the Finnish proposal (A/CONF.97/C.1/L.29).

72. Mr. DABIN (Belgium) said that he was reluctant to delete the second sentence of paragraph 1 and would prefer the formula proposed by the Austrian delegation in document A/CONF.97/C.1/L.46, which consisted in maintaining the second sentence but adding the words "in particular" to show that it was merely given as an example.

73. If, however, it were decided that the second sentence should be deleted, thought should be given to the full implications of the text of article 17(3) [became CISG article 19(3) ] on modifications to the offer.

74. Mr. SZÁSZ (Hungary) said that he too was afraid that the deletion of the second sentence of paragraph 1 would make the paragraph more obscure, while it was important to state what could make an offer valid. It would then be necessary, in practice, to have recourse to article 6 [became CISG article 7 ], but it would be preferable to retain the second sentence and base it on the Austrian proposal.

75. Mr. KRISPIS (Greece) said that he shared the doubts of the preceding speakers. He emphasized the need for a proposal for a contract to be definite and the elements mentioned in the second sentence (indication of the goods, determination of price) were essential elements without which paragraph 1 would lose its meaning. Reference to quantity might be deleted.

76. Mr. KHOO (Singapore) said that his delegation was in favour of the United Kingdom proposal to delete the second sentence of article 12(1) [became CISG article 14(1) ], because it was impossible to define satisfactorily the elements which had to be present to make a proposal sufficiently definite. As currently worded, the sentence implied that the conditions given were adequate whereas it was obvious that they could be met without there necessarily being a definite proposal. The other elements listed in article 17(3) [became CISG article 19(3) ] were just as important.

77. The Austrian proposal (A/CONF.97/C.1/L.46) also implied that the conditions set forth were sufficient to make a proposal definite, and that was unacceptable.

78. Mr. SEVÓN (Finland) said that the representative of Singapore had just drawn attention to the essential point. Article 12 [became CISG article 14 ] did not deal with the question of determining when there was a contract, but indicated the provisions that determined it. Since it was very difficult to draft a wording which was acceptable to all, his delegation would be in favour of the deletion of that sentence.

79. Mr. GARRIGUES (Spain) said he was in favour of retaining the sentence since, in his view, a proposal could not constitute an offer unless it contained the essential terms of a contract (indication of the goods, quantity and price). Article 51 [became CISG article 55 ] by itself would not be enough.

80. Mr. WANG Tian ming (China) also advocated that the sentence should be retained since it implied that the three basic terms of a sales contract (indication of the goods, quantity and price) should be definite in order to constitute an offer. If the second sentence was deleted, the meaning of the article was incomplete.

81. Mr. PLUNKETT (Ireland) supported the United Kingdom proposal, which was in his view the only satisfactory way of solving the problem. The second sentence of article 12 [became CISG article 14 ], paragraph 1 was either a rule or an example. If it was a rule, it was unsatisfactory and could not provide a valid definition. If it was an example, it was unnecessary in a convention of the kind under discussion. It should be left to the courts to determine whether an offer was valid.

82. Mr. GHESTIN (France) said it was important to retain the sentence as the essential terms of a sale were quality, quantity and price, the main difficulty being the question of the price. The issue was one of balance and fairness. It should be borne in mind that contracts frequently covered raw materials that were to be delivered over a period of years at prices that were difficult to fix (e.g., petroleum products). The choice was an important one since the weaker partner might be caught in a trap in the form of a firm sale at prices over which he had no further control.

83. It should also be remembered that article 12 [became CISG article 14 ] was in itself a compromise since its sole requirement was that the offer should contain the information that must be available to the courts with respect to the price of the goods.

84. Mr. FARNSWORTH (United States of America) endorsed the arguments of the representatives of Singapore, Finland and Ireland in support of the United Kingdom proposal. The second sentence of article 12 [became CISG article 14 ], paragraph 1, was neither desirable as a rule nor valid as an example. Some proposals might be offers although they did not specify the goods. In any event it would be difficult to find an acceptable definition.

85. Mr. STALEV (Bulgaria) considered that the second sentence of article 12 [became CISG article 14 ], paragraph 1, should be retained.

86. Mr. SAMI (Iraq) associated himself with the arguments of the French and Chinese delegations in favour of retaining the sentence. The retention of the sentence was justified by article 17 [became CISG article 19 ], paragraph 3.

87. Mr. MEDVEDEV (Union of Soviet Socialist Republics) noted that article 12 [became CISG article 14 ] was the outcome of a compromise that had been arrived at after considerable effort and should not be reopened. Deletion of the second sentence would destroy the balance of the text and make it less precise.

88. Mr. KUCHIBHOTLA (India) remarked that the second sentence of article 12 [became CISG article 14 ], paragraph 1, complemented the first and that the text would be incomplete if it were deleted. The text was a compromise worked out during the eleventh session of UNCITRAL and his delegation could not assent to its deletion.

89. Mr. EYZAGUIRRE (Chile) said that he understood the difficulties the second sentence of article 12 [became CISG article 14 ], paragraph 1, created for some members of the Committee, particularly in the light of the provisions of article 51 [became CISG article 55 ] concerning the price of goods. Nevertheless he would prefer to retain the sentence as it indicated the essential terms of any sale, namely, the goods proposed, the quantities and the prices, which must be expressly or implicitly specified.

90. The Austrian proposal would weaken the text and was therefore unacceptable.

91. Mr. KIM (Republic of Korea) supported the United Kingdom proposal. In the case of long-term contracts in particular, some gaps were inevitable and although there might be some difficulties in filling them, its was better to retain a degree of flexibility.

92. Mr. BECK-FRIIS (Sweden) supported the United Kingdom proposal although he recognized that the deletion of the sentence might be considered a compromise. Although in most cases prices were indicated, contracts were often concluded without any specification of prices, more attention being paid to other important conditions, such as, for example, speedy delivery in the case of inexpensive spare parts.

93. The CHAIRMAN put the United Kingdom amendment (A/CONF.97/C.1/L.36) to the vote.

94. The amendment was rejected.

95. The CHAIRMAN pointed out that a great many subsidiary amendments to article 12 [became CISG article 14 ] remained to be considered and suggested that the delegations which had voted for the deletion of the second sentence of paragraph 1 should enter into consultations with a view to formulating one or, if they preferred, two proposals on the matter. The delegations in question were those of Austria, Egypt, Finland, the Republic of Korea, Singapore, the United Kingdom and the United States.

96. Mr. MEDVEDEV (Union of Soviet Socialist Republics), introducing his delegation's amendment (A/CONF.97/C.1/L.37), said that its purpose was self-evident. The deletion of the words "expressly or implicitly" would avoid complications in interpreting the idea of the implicit fixing of quantity and price.

97. The CHAIRMAN said that the Soviet proposal would be taken up after the amendments to be prepared by the small group of delegations that wished to delete the second sentence of paragraph 1.

98. He invited the Australian delegation to introduce its amendment to article 12 [became CISG article 14 ], paragraph 2 (A/CONF.97/C.1/L.69).

99. Mrs. KAMARUL (Australia) explained that her delegation noted with concern that in contrast to the provisions concerning offers in paragraph 1 of article 12 [became CISG article 14 ], paragraph 2 did not stipulate that a proposal addressed to one or more specific persons did not constitute an offer unless, in addition to the other conditions, it was "sufficiently definite".

100. Under paragraph 1, a proposal constituted an offer if it was sufficiently definite and indicated the intention of the offeror to be bound in case of acceptance. The second requirement was made applicable to paragraph 2 by the words "unless the contrary is clearly indicated by the person making the proposal", but that did not necessarily mean that an offer had to be "sufficiently definite". Her delegation accordingly thought that the text should be amended to make the requirement that the offer should be sufficiently definite applicable to paragraph 2.

101. The CHAIRMAN suggested that the Australian amendment was concerned with a purely drafting change. It was understood that the proposal in paragraph 2 was a proposal within the meaning of paragraph 1.

102. Mr. KRISPIS (Greece) supported the Australian proposal but thought it should be referred to the Drafting Committee.

103. Mrs. KAMARUL (Australia) believed that her amendment raised a substantive issue. She would however agree to its being referred to the Drafting Committee.

The meeting rose at 1 p.m.


Pace Law School Institute of International Commercial Law - Last updated January 29, 1999
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