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2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 11 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Form requirements and evidence of the contract
Limits to the principle of freedom from form requirement]

Article 11

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.

INTRODUCTION

1. Subject to article 12, article 11 provides that a contract of sale need not be concluded in writing and is not subject to any other specific requirement as to form.[1] The provision thus establishes the principle of freedom from form requirements [2] -- or in other words, as one court has stated, "[u]nder article 11 CISG, a contract of sale can be concluded informally."[3] According to case law this means that a contract can be concluded orally [4] and through the conduct of the parties.[5] Article 11 has also been invoked in holding that a party's signature was not required for a valid contract.[6]

2. As was noted in the Digest for article 7,[7] several tribunals have stated that the freedom-from-form-requirements rule that article 11 establishes with regard to concluding a contract constitutes a general principle upon which the Convention is based.[8] Under this principle, the parties are free to modify or terminate their contract in writing, orally, or in any other form. Even an implied termination of the contract has been held possible,[9] and it has been held that a written contract may be orally modified.[10]

3. As the Convention's drafting history states, despite the informality rule in article 11 "[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."[11]

Form requirements and evidence of the contract

4. Article 11 also frees the parties from domestic requirements relating to the means to be used in proving the existence of a contract governed by the Convention. Indeed, as various courts have emphasized, "the contract can be proven by any means."[12] As a consequence, domestic rules requiring a contract to be evidenced in writing in order 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]."[13]

5. It is up to those presiding over the tribunal to determine within the parameters of the procedural rules of the forum how to evaluate the evidence presented by the parties.[14] It is on this basis that one court [15] stated that a judge may 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 the Digest for article 8.[16]

Limits to the principle of freedom-from-form requirements

7. According to article 12, the Convention's elimination of form requirements does not apply if one party has its relevant place of business in a State that made a declaration under article 96.[17] Different views exist as to the effects of an article 96 reservation. According to one view, the mere fact that one party has its place of business in a State that made an article 96 reservation does not necessarily mean that the domestic form requirements of that State apply.[18] Under this view, the rules of private international of the forum will dictate what, if any, form requirements must be met: if those rules lead to the law of a State that made an article 96 reservation, then the form requirements of that State must be complied with; but if the applicable law is that of a Contracting State that did not make an article 96 reservation, the freedom-from-form-requirements rule laid down in article 11 would apply, as several decisions have stated.[19] According to an opposing view, however, the fact that one party has its relevant place of business in a State that made an article 96 reservation subjects the contract to writing requirements, and the contract can only be modified in writing.[20]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.UNCITRAL.org/pdf/english/clout/CISG_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,200 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. See [AUSTRIA Oberster Gerichtshof 9 March 2000 (Roofing material case)]; [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997 (Fabrics case)] (see full text of the decision); [AUSTRIA Oberster Gerichtshof 6 February 1996 (Propane case)] (see full text of the decision); [AUSTRALIA Federal Court, Adelaide, 28 April 1995 (Tent hall structures case)] (see full text of the decision); [UNITED STATES Oregon Court of Appeals 12 April 1995 (GPL Treatment v. Lousiana Pacfic)]; for similar statements, see 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. See [SWITZERLAND Bundesgericht, Switzerland, 15 September 2000 (Egyptian cotton case)].

3. [SWITZERLAND Zivilgericht Basel-Stadt 21 December 1992 (Textiles case)] (see full text of the decision).

4. See [UNITED STATES Federal Court of Appeals for the Eleventh Circuit United States 29 June 1998 (MCC-Marble v. Ceramica Nuova)] (see full text of the decision); [AUSTRIA Oberster Gerichtshof 6 February 1996 (Propane case)] (see full text of the decision); [GERMANY Oberlandesgericht München 8 March 1995 (Copper and nickel electrolyte cathodes case)]; for an example of a case where an oral contract was held to be valid, see [GERMANY Oberlandsgericht Köln 22 February 1994 (Rare hard wood case)].

5. For this statement, see [BELGIUM Hof van Beroep Gent 15 May 2002 (Design of radio phone case)]; [GERMANY Oberlandesgericht München 8 March 1995 (Copper and nickel electrolyte cathodes case)].

6. [SWITZERLAND Handelsgericht des Kantons St. Gallen 5 December 1995 (Computer hardware devices case)].

7. See para. 15 of the Digest for article 7.

8. See [MEXICO Compromex Arbitration 29 April 1996 (Canned Fruit case)]; [AUSTRIA Oberster Gerichtshof, Austria, 6 February 1996 (Propane case)] (see full text of the decision).

9. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

10. [BELGIUM Hof van Beroep Gent 15 May 2002 (Design of radio phone case)].

11. 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.

12. See [BELGIUM Rechtbank van Koophandel Hasselt 22 May 2002 (Packaging for vegetables case)]; [BELGIUM Rechtbank van Koophandel Kortrijk 4 April 2001]; [SWITZERLAND Handelsgericht des Kantons St. Gallen 5 December 1995 (Computer hardware devices case)]; [GERMANY Oberlandesgericht München 8 March 1995 (Copper and nickel electrolyte cathodes case)].

13. [UNITED STATES Federal District Court, Southern District of New York, 8 August 2000 (Fercus v, Mario Palazzo)] (see full text of the decision).

14. See [BELGIUM Rechtbank van Koophandel Kortrijk 4 April 2001]; [GERMANY Landgericht Memmingen, 1 December 1993 (Shoes case)].

15. [BELGIUM Rechtbank van Koophandel Hasselt 22 May 2002 (Packaging for vegetables case)].

16. See paragraph 18 of the Digest for article 8.

17. See [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995 (Frozen raspberries case)]

18. [NETHERLANDS Rechtbank Rotterdam 12 July 2001 (Lemons, mandarins, oranges case)].

19. [NETHERLANDS Rechtbank Rotterdam 12 July 2001 (Lemons, mandarins, oranges case)]; [NETHERLANDS Hoge Raad 7 November 1997 (Vodka case)]; [HUNGARY Fovrosi Birosag 24 March 1992].

20. [RUSSIA High Arbitration Court of the Russian Federation 16 February 1998 (Onions case)]; [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995 (Frozen raspberries case)].


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