CROSS-REFERENCES AND EDITORIAL ANALYSIS

Preamble


Editor:

Albert H. Kritzer[*]


Introduction

The Preamble introduces the articles of the Convention. The articles number 101. They are presented in four Parts. Part I: Sphere of Application and General Provisions (articles 1 through 13); Part II: Formation of the Contract (articles 14 through 24); Part III: Sales of Goods (articles 25 through 88); Part IV: Final Provisions (articles 89 through 101).


Contents of Editor's Commentaries

The editor's commentaries include cross-references to other articles of the Convention. In many cases, matters external to the Convention are also cross-referenced. For example, under article 4(a) [Validity] there is a cross-reference to the UNIDROIT "Principles of International Contracts"; under article 4(b) [Property in the Goods] there is a cross-reference to the ULIS provision from which it was derived; under article 6 [Supremacy of the Contract] the most important cross-reference is to the contract between the parties; under article 9 [Usages and Practices] there is a cross-reference to UCC section 1-205 because of the consanguinity of article 9 to this section of the UCC; under articles 31 to 34 [Delivery of the Goods and Handing Over of Documents] Incoterms are cross-referenced as contracting parties should refer to terms such as these rather than rely solely on the Convention's delivery provisions; etc.


The Preamble

An issue associated with the Preamble to the CISG is whether it interprets the articles of Convention it introduces. There are two schools of thought.

Some say:

"The Preamble to the Convention . . . refers to the public international law obligations and goals of the signatory states and may not be used for the interpretation and gap-filling of the substantive legal provisions . . . " (see footnote 1).

"[I]t should be borne in mind that the character of the Convention is essentially technical and that rules of interpretation are already to be found in Article 7(1). In consequence, the scope for interpretation in the light of the Preamble may not be very wide . . . " (see footnote 2).

Others say:

The Preamble "informs many other provisions" of the Convention (see footnote 3).

"It would . . . be inappropriate to dismiss the Preamble . . . as insignificant from a legal point of view. The principles it contains can be referred to in interpreting terms or rules of the Convention, such as the terms of "good faith" (article 7, paragraph 1) or the rather frequent and vague term "reasonable". It could also be used to fill gaps because those principles can be counted among, or have and influence on, the basic rules underlying the Convention (article 7, paragraph 2). The spirit of the Preamble should also be taken account of when agreed texts of sales contracts are to be interpreted" (see footnote 4).

One's legal culture may have a bearing on the resolution of this issue. For example, it has been stated:

"Opinions differ in the legal systems as to the legal importance of preambles. In the Eastern European countries preambles, in general, define in a binding way the social function of the respective legal act. That definition is then decisive when it comes to interpreting such act. In common law countries, however, where skepticism prevails in regard to general principles, they play a negligible role . . . " (see footnote 5).

The significance of legal culture is important to recognize at the outset. Uniform provisions of the Convention may be susceptible to different interpretations, depending on one's legal culture.


FOOTNOTES

* Executive Secretary, Institute of International Commercial Law of the Pace University School of Law.

1. Peter Schlechtriem, Uniform Sales Law -- The UN Convention on Contracts for the International Sale of Goods (Manz: Vienna 1986) 38, n.111.

2. Malcolm Evans, Bianca-Bonell Commentary (Giuffré: Milan 1987) 25.

3. Amy H. Kastely, "Rhetorical Analysis of the Convention", 8 NW J. Int'l L. & Bus. 594 (1988). See also Horacio A. Grigera Naón, "The UN Convention on Contracts for the International Sale of Goods" in Transnational Law of International Commercial Transactions -- Studies in Transnational Law, vol.2, Horn & Schmitthoff eds. (Kluwer Law International 1982) 92.

4. Fritz Enderlein & Dietrich Maskow, International Sales Law (Oceana 1992) 20.

5. Id. at 19.


Pace Law School Institute of International Commercial Law - December 1996