A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
OUTLINE OF ISSUES
Reproduced with permission of UNCITRAL
11A Writing or other formality for conclusion of contract
11A1 Inapplicability of domestic law (but see arts. 12 and 96)
11B Proof of contract by any means, including witnesses
DESCRIPTORS
Formal requirements
CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES
Presented below is a composite list of Art. 11 cases reporting UNCITRAL Digest cases and other Art. 11 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 22 May 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.
English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available. There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website. American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.)
Netherlands 17 January 2007 Rechtbank [District Court] Arnhem (Hibro Compensatoren B.V. v. Trelleborg Industri Aktiebolag) 11A [translation available]
United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH)
United States 7 February 2006 Federal District Court [Texas] (China North Chemical Industries v. Beston Chemical Corporation) 11B United States 27 April 2005 U.S. District Court [Alabama] (Treibacher Industrie, A.G. v. TDY Industries, Inc.) 11B
Germany 13 April 2005 Landgericht [District Court] Bamberg (Furnishings case) [translation available]
Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) [translation available]
Switzerland 11 October 2004 Kantonsgericht [Canton Court] Freiburg 11B [translation available]
Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) [translation available]
Switzerland 29 April 2004 Handelsgericht [Commercial Court] St. Gallen [translation available]
Netherlands 17 March 2004 Arrondissements Rechtbank [District Court] Arnhem
Italy 25 February 2004 Tribunale [District Court] Padova [translation available]
Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) [translation available]
Spain 28 October 2003 Audiencia Provincial [Appellate Court] Barcelona
Germany 27 October 2003 Oberlandesgericht [Appellate Court] Rostock 11B [translation available]
Switzerland 4 August 2003 Bundesgericht [Federal Supreme Court] 11A [translation available]
United States 5 May 2003 U.S. Circuit Court of Appeals [9th Cir.] (Chateau des Charmes Wines v. Sabate USA) 11A
Belgium 28 April 2003 Cour d’appel [Appellate Court] Liège 11A [translation available]
Belgium 19 March 2003 Rechtbank van Koophandel [District Court] Veurne
France 28 November 2002 Cour d’appel [Appellate Court] Grenoble 11A [translation available]
Switzerland 13 September 2002 Cour de Justice [Appellate Court] Genève [translation available]
* Belgium 22 May 2002 Rechtbank van Koophandel [District Court] Hasselt 11A
* Belgium 15 May 2002 Hof van Beroep [Appellate Court] Gent 11A [translation available]
United States 10 May 2002 U.S. District Court [Southern Dist. NY] (Geneva Pharmaceuticals
Tech. Corp. v. Barr Labs. Inc.) 11A
Austria 7 March 2002 Oberlandesgericht [Appellate Court] Graz 11A [translation available]
Germany 12 November 2001 Oberlandesgericht [Appellate Court] Hamm (Memory module case) 11A [translation available]
United States 7 November 2001 U.S. District Court [New York] (Atla-Medine v. Crompton) 11A
* Netherlands 12 July 2001 Arrondissementsrechtbank [District Court] Rotterdam [translation available]
Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 11A [translation available]
* Belgium 4 April 2001 Rechtbank van Koophandel [District Court] Kortrijk 11B
Finland 26 October 2000 Helsingin hoviokeus [Helsinki Court of Appeals] 11A [translation available]
* Switzerland 15 September 2000 Bundesgericht [Federal Supreme Court] [4C.105/2000] 11A [translation available]
* United States 8 August 2000 U.S. District Court [Southern Dist. NY] (Fercus v. Mario Palazzo) 11A
* Austria 9 March 2000 Oberster Gerichtshof [Supreme Court] 11A [translation available]
* Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] [translation available]
China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 11A1 [translation available]
Germany 29 December 1998 Hamburg Arbitration award [translation available]
Mexico 30 November 1998 Compromex Arbitration award[translation available]
United States 27 October 1998 Federal District Court [Illinois] (Mitchell Aircraft Spares v.
European Aircraft Service)
* United States 29 June 1998 Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino)
Denmark 23 April 1998 Østre Landsret [Appellate Court] 11B
United States 6 April 1998 Federal District Court [Southern Dist. NY] (Calzaturificio Claudia
v. Olivieri Footwear) 11A
ICC March 1998 International Court of Arbitration, Case 9117 [English text]
* Russia 16 February 1998 High Arbitration Court [Information Letter 29] China 31 December 1997 CIETAC Arbitration Award [CISG/1997/37] (Lindane case) [translation available]
* Netherlands 7 November 1997 Hoge Raad [Supreme Court]
China 8 October 1997 CIETAC Arbitration Award [CISG/1997/29] (Industrial tallow case) [translation available]
* Switzerland 3 July 1997 Bezirksgericht [District Court] St. Gallen [translation available]
Hungary 17 June 1997 Fovárosi Bíróság [Metropolitan Court]
Russia 25 March 1997 Presidium of Supreme Court of Russian Federation (Resolution No. 4670/96) 11A1 [translation available]
China 17 October 1996 CIETAC Arbitration Award [CISG/1996/47] (Tinplate case) [translation available]
* Mexico 29 April 1996 Compromex Arbitration award 11B [translation available]
Russia 15 February 1996 Arbitration Court of Moscow City
* Austria 6 February 1996 Oberster Gerichtshof [Supreme Court] 11B [translation available]
* Switzerland 5 December 1995 Handelsgericht [Commercial Court] St. Gallen (Computer hardware devices case) 11A [translation available]
Austria 23 May 1995 Oberlandesgericht [Appellate Court] Linz * Belgium 2 May 1995 Rechtbank van Koophandel [District Court] Hasselt
* Australia 28 April 1995 Federal District Court, Adelaide (Roder v. Rosedown)
* United States 12 April 1995 State Appellate Court [Oregon] (GPL Treatment v. Louisiana-Pacific) 11A ; 11B
* Germany 8 March 1995 Oberlandesgericht [Appellate Court] München 11A
Germany 2 August 1994 Landgericht [District Court] München
* Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 11A [translation available]
Germany 1 December 1993 Landgericht [District Court] Hanover
* Germany 1 December 1993 Landgericht [District Court] Memmingen 11B
United States 15 June 1993 Federal Appellate Court [5th Circuit] (Beijing Metals v. American
Business Center) 11A1
Mexico 4 May 1993 Compromex Arbitration award 11A [translation available]
* Switzerland 21 December 1992 Zivilgericht [Civil Court] Basel [translation available]
United States 14 April 1992 Federal District Court [Southern Dist. NY] (Filanto v. Chilewich) 11B
* Hungary 24 March 1992 Fovárosi Bíróság [Metropolitan Court] 11A
The UNCITRAL Digest of case law on the United
A/CN.9/SER.C/DIGEST/CISG/11 [8 June 2004]
A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
DIGEST OF ARTICLE 11 CASE LAW
Freedom from form requirements 1. This provisions lays down the rule pursuant to which, subject to article 12, a contract of sale need not be concluded in writing and is not subject to any other specific requirement as to form.[1] The provisions, in other words, establishes the principle of freedom from form requirements.[2] One court even stated that “[u]nder article 11 CISG, a contract of sale can be concluded informally”.[3] According to case law this means that a contract can also be concluded orally [4] and through the conduct of the parties.[5] Furthermore, one court stated that a signature was not necessary for the contract to be valid because a sales contract is not subject to any requirement as to form.[6] 2. Several tribunals expressly stated that the aforementioned principle, pursuant to which no form requirements have to be met as far as the conclusion of the contract is concerned, constitutes a general principle upon which the Convention is based;[7]
from this principle it follows, among other things, that the parties are free
to modify or terminate their contract in any form be it in writing or orally or
in any other form. Even an implied termination of the contract has been held
possible;[8] furthermore, it has been held that a written contract may be orally changed.[9] 3. As the legislative history states, despite the existence under the Convention of the aforementioned general principle, “[a]ny administrative or criminal sanctions for breach of the rules of any State requiring that such contracts be in writing, whether for purposes of administrative control of the buyer or seller,
for purposes of enforcing exchange control laws, or otherwise, would still be
enforceable against a party which concluded the non-written contract even
though the contract itself would be enforceable between the parties.”[10] Form requirements and evidence of the contract 4. Article 11 frees the parties also from having to comply with domestic requirements as
to the means to be used in proving the existence of a contract governed by the
Convention. Indeed, as expressly stated by various courts, “the contract can be
proven with any means”.[11]
Consequently, domestic rules requiring a contract to be evidenced in writing in
order for it to be enforceable are superseded; one court, for instance, stated
that “[u]nder the CISG, evidence of the oral conversations between [seller] and
[buyer], relating to the terms of the purchase [...], could be admitted to
establish that an agreement had been reached between [the parties].”[12] 5. As far as the evidence presented by the parties is concerned, it is up to the judge to determine — within the limits set by the procedural rules of the forum — how to evaluate it.[13] It is on this basis that one court [14] stated that a judge may well attribute more weight to a written document than to oral testimony. 6. For comments on the applicability of the parol evidence rule under the Convention, see article 8, para. 18. Limits to the freedom from form requirements 7. According to article 12 of the Convention, the principle of freedom from form requirements does not per se apply where one party has its relevant place of business in a State that made an article 96 declaration.[15] Opposing views exists as to the effects of the article 96 reservation. According to one view, the sole fact that one party has its place of business in a State that made an article 96 reservation does not necessarily mean that the form requirements of that State apply.[16] Rather, it will depend on the rules of private international of the forum whether any form requirements have to be met. Thus, where those rules lead to the law of a State that made an article 96 reservation, the form requirements of that State will have to be complied with; where, on the other hand, the law applicable is that of a contracting State that did not make an article 96 reservation, the principle of freedom from form requirements laid down in article 11 applies, as repeatedly pointed out in case law.[17] According to the opposing view, however, where one party has its relevant place of business in a State that made an article 96 reservation, the contract must be concluded or evidenced or modified in writing.[18] FOOTNOTES
* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.
[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.] 1. See [AUSTRIA Oberster Gerichtshof [Supreme Court ] 9 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>];
CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision);
CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision);
CLOUT case No. 308 [AUSTRALIA Roder v. Rosedown [Federal Court] 28 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950428a2.html>] (see full text of the decision);
CLOUT case No. 137 [UNITED STATES GPL Treatment v. Louisiana-Pacific State Appellate Court [Oregon] 12 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950412u1.html>]; for similar affirmations, see also United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20. 2. [SWITZERLAND Bundesgericht [Supreme Court] 15 September 2000, available online at <http://cisgw3.law.pace.edu/cases/000915s1.html>]. 3. CLOUT case No. 95 [SWITZERLAND Zivilgericht [Civil Court] Basel 21 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921221s1.html>] (see full text of the decision). 4. See CLOUT case No. 222
[UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, Federal Appellate Court [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (see full text of the decision);
CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>]
(see full text of the decision);
CLOUT case No. 134 [GERMANY Oberlandesgericht [Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>];
for an example of a case where an oral contract was held to be valid, see
[GERMANY Oberlandsgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>]. 5. For this statement, see [BELGIUM Hof van Beroep [Appellate Court] Gent 15 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>];
CLOUT case No. 134 [GERMANY Oberlandesgericht [Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>]. 6. CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>]. 7. See [MEXICO Compromex Arbitration award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>];
CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision). 8. [AUSTRIA Oberster Gerichtshof [Supreme Court] 29 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990629a3.html>]. 9. [BELGIUM Hof van Beroep [Appellate Court] Gent 15 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>];
CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision). 10. United
Nations Conference on Contracts for the International Sale of Goods, Vienna, 10
March - 11 April 1980, Official Records, Documents of the Conference and
Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20. 11. See [BELGIUM Rechtbank [District Court] Hasselt 22 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020522b1.html>];
[BELGIUM Rechtbank [District Court] Kortrijk 4 April 2001, available online at <http://cisgw3.law.pace.edu/cases/010404b1.html>];
CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>];
CLOUT case No. 134 [GERMANY Oberlandesgericht [Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>]. 12. CLOUT case No. 414 [UNITED STATES Fercus v. Mario Palazzo et al. Federal District Court [New York] 8 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000808u1.html>] (see full text of the decision). 13. See [BELGIUM Rechtbank [District Court] Kortrijk 4 April 2001, available online at <http://cisgw3.law.pace.edu/cases/010404b1.html>];
[GERMANY Landgericht [District Court] Memmingen 1 December 1993, available online at <http://cisgw3.law.pace.edu/cases/931201g1.html.html>]. 14. [BELGIUM Rechtbank [District Court] Hasselt 22 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020522b1.html>]. 15. [BELGIUM Rechtbank [District Court] Hasselt 2 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>]. 16. [NETHERLANDS Rechtbank [District Court] Rotterdam 12 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010712n1.html>]. 17. [NETHERLANDS Rechtbank [District Court] Rotterdam 12 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010712n1.html>];
[NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>];
CLOUT case No. 52 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 24 March 1992, available online at <http://cisgw3.law.pace.edu/cases/920324h1.html>]. 18. [RUSSIA High Arbitration Court of the Russian Federation: Information Letter 29 of 16 February 1998; available at <http://cisgw3.law.pace.edu/cases/980216r1.html>];
[BELGIUM Rechtbank [District Court] Hasselt 2 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>]. ANNOTATED COMPARATIVES Chantal Niggemann [1] a. Parties to international contracts need to be able to rely on their agreement. Therefore, they need to know whether there are any formal requirements which have to be met for their agreement
or its amendment to be valid. Some jurisdictions ask for specific form or comparable requirements
to be met for the validity of commercial sales contracts, whereas most legal systems opt for the
rule of consensualism, i.e., freedom of form. During the deliberations of UNCITRAL for the elaboration of the CISG, one of the most
controversial issues at the Vienna Conference was whether or not the principle of freedom of form
of article 15 ULIS should be incorporated in the text of the CISG. Finally, a compromise was
adopted with freedom of form as a basic rule and the reservation clause of articles 12 and 96
CISG.[2] Where at least one of the parties to the contract has its place of business in a reservation
State and a court of that State hears the case, the court must determine the law applicable to form
according to its conflict of law rules, just as a court of another State, which did not adopt the
CISG.[3] Although the issue of freedom of form might as well have been regulated in Part II of the CISG
dealing with the formation of the contract, it has been integrated as a general provision and,
therefore, also applies in case a party has its place of business in a State that declared a reservation
under article 92 CISG.[4] The UNIDROIT Principles opted for unconditional freedom of form, which is expressed in
articles 1.2 and 3.2 of the UNIDROIT Principles.[5] b. Article 1.2 of the UNIDROIT Principles merely refers to the writing requirement of contracts,
whereas Article 11 sentence one CISG states that the contract is not subject to "any other
requirement as to form", i.e., not only writing requirements. However, this difference is only in
appearance, since although article 1.2 of the UNIDROIT Principles mentions only the requirement
of writing, it has to be extended to other requirements as to form.[6] Moreover, article 1.2 of the
UNIDROIT Principles is to be seen in conjunction with article 3.2 of the UNIDROIT Principles,
stating that a contract is concluded "without any further requirement". Article 3.2 of the UNIDROIT Principles seems to go even beyond the scope of article 11 CISG,
since in comparison to article 11 CISG, which names requirements "as to form", article 3.2 of the
UNIDROIT Principles does not contain such a restriction. It is, however, undisputed that article
11 CISG also includes quasi-formal requirements such as consideration as is to be found in
common law systems.[7] The commentary to article 3.2 of the UNIDROIT Principles makes it clear
that are also excluded is the requirement of cause which exists in some civil law systems, as well
as rules regarding so-called real contracts, which require the handing over of goods for their
conclusion.[8] Although the exclusion of the cause requirement and the real-contract rules is not
discussed under the Convention, the same should apply and they should be displaced by the
principle of freedom of form of article 11 CISG. c. Both the UNIDROIT Principles in article 1.2, second sentence, and the CISG in article 11,
second sentence, make clear that the principle of freedom of form implies the admissibility of oral
evidence in judicial proceedings. The language of both clauses is perfectly identical, as is their
understanding in the commentaries.[9] Article 1.2 second sentence of the UNIDROIT Principles
may, therefore, merely support the interpretation of article 11 sentence two CISG. d. According to article 6 CISG, the parties are of course also free to agree, orally or in writing,
on specific form requirements to be met for the validity of the contract and which might also to
be applied for modifications and/or termination.[10] This is also expressed in article 2.13 of the
UNIDROIT Principles, and the illustrations contained in the Official Comments to article 2.13 of
the UNIDROIT Principles may be helpful in the interpretation of article 11 in this respect.[11] In this
regard and concerning written modification clauses, please refer to the Editorial remarks regarding
article 29 CISG. e. In case one of the parties confirms the content of a contract, whereby such confirmation
contains additional or different terms, the question arises whether such terms may become part
of the contract in case the confirmation is not in writing, i.e., whether article 11 CISG and the
concept of freedom of form also applies to such confirmation. The CISG does not explicitly deal
with this issue. In case the rules for Commercial letters of confirmation (kaufmännisches
Bestätigungsschreiben) apply, e.g., as usages by which the parties are bound (see article 9 CISG),
scholars and tribunals tend to ask for a written confirmation,[12] whereby article 2.12 of the
UNIDROIT Principles deals with such a confirmation and explicitly requires it to be in writing. f. Article 11 CISG only applies to the formation of the contract, not to its modification or
termination as does article 3.2 of the UNIDROIT Principles. With regard to the manner in which
the UNIDROIT Principles may be used to interpret or supplement aarticle 29 CISG for
modifications and termination, please see the Editorial remarks regarding article 29 CISG. g. As a result it can be said that the intent of article 11 CISG is reproduced in article 1.2 read in
conjunction with 3.2 of the UNIDROIT Principles. Thereby, the Official Comments of articles 1.2
and 3.2 of the UNIDROIT Principles support the interpretation of article 11 CISG. In addition,
articles 2.12 and 2.13 of the UNIDROIT Principles assist the further interpretation of freedom
of form under article 11 CISG. FOOTNOTES 1. Legal Counsel at Techem Energy Services GmbH & Co. KG, an international service provider in the field of measuring and billing of energy and water consumption with its place of business near Frankfurt am Main, Germany.
2. Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, 1986, p. 43 subs., available at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html>.
3. Schlechtriem in v. Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht -CISG-, 3rd ed. 2000, Art. 12 at marginal note 2 with further citations; Melis in Honsell, Kommentar zum UN-Kaufrecht, 1997, Art. 12 at marginal note 4.
4. Magnus in Staudinger, Kommentar zum BGB - Wiener UN-Kaufrecht (CISG), 1999, Art. 11 at marginal note 6; Witz in Witz/Salger/Lorenz, International Einheitliches Kaufrecht, 2000, Artt. 11-12 at marginal note 2; Heuzé, La vente internationale de marchandises, 1992, at note 196; see also Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. 1999, Art. 11 at note 127.1.
5. This principle of freedom of form may, however, be overridden by mandatory rules of the applicable law, see article 1.4 of the UNIDROIT Principles and note 2 of the Official Comments of article 1.2.
6. Official Comments on articles of the UNIDROIT Principles, article 1.2 at note 1.
7. Witz, loc. cit., Artt. 11-12 at marginal note 5; Schlechtriem in v. Caemmerer/ Schlechtriem, loc. cit., Art. 11 at marginal note 11; Magnus, loc. cit., Art. 11 at marginal note 9; see also Secretariat Commentary Art. 27 note. 2 referring to article 29 CISG.
8. Official Comments on articles of the UNIDROIT Principles, article 3.2 at notes 2 and 3. With regard to the requirement of cause, other effects which may derive from it such as its illegality are not concerned.
9. Schlechtriem in v. Caemmerer/Schlechtriem, loc. cit., Art. 11 at marginal notes 12 and 13 with further reference; Official comments on articles of the UNIDROIT Principles, article 1.2 at note 1.
10. Honnold, loc. cit, Art. 11 at note 127; Schlechtriem in v. Caemmerer/Schlechtriem, loc. cit., Art. 11 at marginal note 16; Melis in Honsell, loc. cit., Art. 11 at marginal note 3; Rajski in Bianca/Bonell, Commentary on the International Sales Law, 1987, Art. 11 at note 3.1.
11. Official Comments on articles of the UNIDROIT Principles, article 2.13 at note 2.
12. Schlechtriem in v. Caemmerer/Schlechtriem, loc. cit., Art. 11 at marginal note 6; Civil Court Basel, judgment dated 21 December 1992, in application of Austrian and Swiss legal rules regarding writings in confirmation, in BJM 1993, p. 310 subs.
Use of PECL Article 2:101(2) as an aid to interpreting Article 11 CISG Allison E. Butler [*]
1. General Interpretation and Application: No Formal Requirements
1. General Interpretation and Application: No Formal Requirements
Article 11 CISG and its counterpart PECL Article 2:101(2) are
similar in substance and form. Both provisions adopt the principle of
"freedom of formalities," which upholds the validity of a contract
absent writing or other formalities. Verbal and written evidence is permitted
under both provisions to prove the formation of a contract.[1]
2. "Formal Requirements" for the Validity of the Contract
a. No formal requirement for contracts in general
In contrast, Article 11 is limited to the formation of a contract; Article 29 explicitly
sets forth the applicable
principle in the event of modification or termination. Due to the international
sphere of application and certain members states preference for writing,
Article 96 permits States that require contracts of sale to evidenced by
writing the option to declare Article 11 inapplicable.[4]
b. Writing required
Similarly, the CISG also
provides means for mandating that a contract be in writing. Notably, CISG
article 11 does not apply if a Contracting State has made a Declaration under
Article 96.[6]
However, this
does not mean that the transaction is subject to a writing requirement. The
resolution of that issue may depend on a choice of law analysis.[7]
c. Specific contracts
Unlike the PECL, exclusion from the freedom of formalities of specific types of contracts is expressly stated in article 2.[8]
As such, the CISG only applies to commercial contracts. Although different in
subject matter, PECL 2:1010(2) may be of assistance in these circumstances.
3. Conclusion
The PECL supports the same principle of freedom of formalities as outlined in the CISG. However, the PECL is
apparently more flexible even when a written contract is mandated by law due in
part to its acceptance by its members states of proving a contract by other
means. Although a Contracting State to
the CISG can exempt itself from Article 11 via Article 96, a written document
may still be mandated under a country's private law. Notably, such a
Declaration may not fully exempt one from Article 11 's application. Although
different in subject matter, PECL 2:101(2) may be of assistance in interpreting
Article 11 CISG when the law mandates that specific contracts be evidenced in
writing.
FOOTNOTES
* The author
received her JD from Loyola University School of Law, New Orleans, Louisiana,
USA (Common Law Program) and her B.A. in International Relations, with honors,
from the University of South Florida, Tampa, Florida, USA.
She is a published author and a private
practitioner in Martin County, Florida, USA.
1. See CISG
article 11; PECL article 2:101(2). Article 11 is one of the many articles whose
legislative history illustrates the Conventions broad uniformity provision, CISG
article 7, in which the delegates of the CISG intended to achieve the
Convention's uniformity mentioned in Article 7(1)
"by
removing artificial impediments to commerce caused by differences in national
legal systems that govern international sales of goods." Marian Nash
(Leich), "Contemporary Practice of the United States Relating to International
Law", 88 Am. J. Int'l L. 89, 103
(1994); see also, Anthony S. Winer, "The CISG Convention and Thomas Franck's
Theory of Legitimacy", 19 NW. J. Int'l L.
& Bus. 1, 1-3 (1998); see also,
Carolina Saf [Sweden], excerpt from 1999 thesis
available at <http://cisgw3.law.pace.edu/cisg/text/saf96.html>,
stating that Article 11 establishes one of the basic rules of the Convention:
the theory of consensualism, i.e. that a contract is not subject to
any specific formal requirements.
For example, the absence of a writing requirement
directly conflicts with the common-law Statute of Frauds. This issue is not as
obvious under the PECL as most of the countries of the European community are
civil law jurisdictions and do not mandate written contracts unless prescribed
by law (and even then there are exceptions).
The legislative history of the CISG further reveals
that a Canadian Representative proposed to adopt language that would provide
"a limitation on admissible evidence in cases where the contracting
parties had freely chosen to have a written contract." Several delegates
opposed such an amendment as conflicting with principles of civil law where a
judge is permitted to review all evidence.
Notably, in certain common-law jurisdiction the parol evidence rule or
similar type of preclusion prohibits certain evidence.
One delegation refused to accept such a rigid
rule that is difficult to apply and lacked a uniform body of jurisprudence even
in common-law countries. See John O.
Honnold, Documentary History of the
Uniform Law for International Sales 662, also available online at <http://cisgw3.law.pace.edu/cisg/1stcommittee/summaries11.html>
and <http://cisgw3.law.pace.edu/cisg/1stcommittee/summaries96.html>.
The Committee rejected the amendment and adopted Article 11 in its current
form.
See e.g,, Switzerland 5 December 1995, Commercial
Court, St. Gallen, available at <http://cisgw3.law.pace.edu/cases/951205s1.html>, holding a sales contract need not be concluded in or evidenced by writing and
can be proved by any means including witnesses, an unsigned offer can be valid.
2. The CISG and the PECL therefore are based on the same principle of freedom of formalities as
a starting point. See generally, Sieg Eiselen, "Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Article 29 of the CISG", available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp29.html#er>.
3. Ole Lando & Hugh Beale eds., Principles of European Contract Law: Parts I and Part II, Kluwer Law
International (1\2000) 137, 138, 142-143.
4. Ten
countries -- Argentina, Belarus, Chile, China, Estonia, Hungary, Latvia,
Lithuania, the Russian Federation and the Ukraine -- have opted for it. The
representative of the Soviet Union argued in particular that the preservation of
domestic law requiring written documentation in international sales contracts
was critical to protect established practices within the Soviet government for
the approval and completion of foreign trade agreements.
See Analysis of Replies and Comments by
Government in Hague Conventions of 1964:
Report of the Secretary-General, U.N. Doc. A/CN.9/31, reprinted in (1970) 1
Y.B.U.N. Comm'n on Int'l Trade L. 159, 170. It has also been reported that the
Soviet representatives were more interested in the reservation as to the
written requirement than the delegates from other socialist countries.
5. See e.g., Danske Lov art. 5.1.1, SWEDEN, see Adlercreutz I 147; FINLAND, see Hoppu, 36;
GREECE, CC art. 158; GERMANY, BGB § 125 (impliedly); AUSTRIA, AGBG § 883; PORTUGAL, CC 219 ff.
6. See generally, CISG articles 12 and 96.
7. To
illustrate, assume a party located in the United States and a party located in
Argentina orally agreed to a sales contract. Because Argentina has made the
Article 96 reservation, the provisions of Articles 11 and 29 dispensing with
any writing requirement are called off by Article 12. That does not, however,
mean that the transaction is subject to a writing requirement. The resolution
of that issue will depend on a choice of law analysis. If private international
law principles lead to the application of Argentinian law, the writing
requirements of Argentinian domestic sales law will apply. If the rules of
private international law designate U.S. law, then the writing requirements of
U.S. domestic sales law will apply. The result in the latter situation is
rather ironic. Because one party to the sale is from
Argentina and Argentina
has made an Article 96 reservation, the transaction becomes subject to the
domestic U.S. Statute of Frauds requirements
(most likely § 2-201 of the Uniform Commercial Code as enacted in the
jurisdiction whose law governs the transaction). And this is the case, even
though the United States, by failing to make an Article 96 declaration, in
effect declared its willingness to forego its Statute of Frauds rules and
accept oral international sales contracts.
As such, the reservation permitted by Article 96
changes the text of the Convention by eliminating those aspects of Articles 11
and 29 (as well as anything in Part II of the CISG) that dispense with writing
requirements. The Article 96 reservation has this effect, not just in countries
making the reservation, but also in non-reserving countries, on a
transaction-by-transaction basis. In other words, whether the text of the
Convention includes provisions eliminating writing requirements varies, even in
a State that has not made the Article 96 reservation, depending on whether one
of the parties is located in another State
that made the reservation.
See generally,
Harry M. Flechtner, The Several Texts of
the CISG in a Decentralized System: Observations on Translations, Reservations
and other Challenges to the Uniformity Principle in Article 7(1), 17 Journal of Law and Commerce (1998) 187-217, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html>.
See, e.g.,
Demark 23 April 1998 Østre Landsret [Appellate Court],
Elinette Konfektion v. Elodie S.A. <http://cisgw3.law.pace.edu/cases/980423d1.html>;
but see, Mexico 29 April 1996
Compromex Arbitration proceeding, Conservas
La Costeña v. Lanín, available at <http://cisgw3.law.pace.edu/cases/960429m1.html>,
finding that "the essential terms of the contractual relationship"
had been sufficiently established in writing despite Argentina's declaration.
The writing requirement does not call for a formal or solemn contract and a different
interpretation, in the opinion of Compromex, "would be in conflict with
the general principles of the CISG."
8. In
particular, Article 2 of the Convention expressly states that the Convention
does not apply to the sale of goods for personal family or household uses
unless the seller, at any time before or at the conclusion of the contract,
neither knew nor ought to have known that the goods were bought for such use.
Also excluded from the Convention is the sale of watercraft, aircraft, natural
gas or electricity, letters of credit, auctions and securities. In the event of
a mixed contract, the Convention would apply unless the "preponderant part
of the obligations of the party who furnishes the goods consists in the supply
of labour or other services." The CISG can apply to the sale of goods
aspect of a distributorship; however, it does not apply to exclusivity or other
non-sale aspect of distributorship agreements.
Australia
1
Hungary
1
Russian Federation
1
Austria
3
Mexico
1
Switzerland
4
Belgium
4
Netherlands
2
United States
2
Germany
2
TOTAL:
21
Nations Convention on the International Sale of Goods [*]
Reproduced with the permission of UNCITRAL
Digest of Article 11 case law
- Freedom from form requirements as to the conclusion of the contract
- Form requirements and evidence of the contract
- Limits to the freedom from form requirements]
ARTICLE 11
as to the conclusion of the contract
- UNIDROIT Principles
- PECL comparative
Principles of International Commercial Contracts may
be used to interpret or supplement Article 11 of the CISG
July 2004
PECL COMPARATIVE
22 February 2003
2. "Formal Requirements" for the Validity of the Contract
3. Conclusion
See also, United States 14 April 1992 Federal District
Court [New York] Filanto S.p.A. v.
Chilewich International Corp., available at <http://cisg3.law.pace.edu/cases/924014.html
none;text-underline:
none'>>;
Mexico 4 May 1993 Compromex Arbitration proceeding
M/66/92, Jose Luis Morales v. Nez
Marketing , available at <http://cisgw3.law.pace.edu/cases/930504m1.html>;
United States 29 June 1998 Federal Appellate Court
[11th Circuit], MCC-Marble Ceramic Center
v. Ceramica Nuova D'Agostino , available at <http://cisgw3.law.pace.edu/cases/980629u1.html>;
United States 8 August 2000 Federal District Court [New
York], Fercus v. Mario Palazzo et al.,
available at <http://cisgw3.law.pace.edu/cases/000808u1.html>:
United States 10 May 2002 Federal District Court [New
York], Geneva Pharmaceuticals Tech. Corp.
v. Barr Labs. Inc., available at <http://cisgw3.law.pace.edu/cases/020510u1.html>.
Pace Law School Institute of International Commercial Law - Last updated June 19, 2008
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