ANNOTATED TEXT OF CISG
Article 26

Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)

Guide to this article

• UNCITRAL outline of issues present
  
• Editorial analysis of this article with cross-references to related subjects [not yet available]
  
• Secretariat Commentary (closest counterpart to an Official Commentary on this article)
  • Match-up of this article with the 1978 draft
  (to validate Secretariat Commentary)
• Use of the UNIDROIT Principles to help interpret CISG Article 26
• Editorial remarks: Camilla Baasch Andersen [Denmark]
• Use of the Principles of European Contract Law to help interpret CISG article 26
  • Editorial remarks: Camilla Baasch Andersen [Denmark]
  • Match-ups with Continental and Common Law domestic rules, doctrine and jurisprudence

• Roadmap to the legislative history of this article
• Legislative history of this article: long form
• Legislative history of this article: short form
  • Chronology of development of Article 26 at the 1980 Vienna Diplomatic Conference
• Summary of UNCITRAL legislative history
• [No Hague Convention antecedent to this provision]

• CASES INVOLVING CISG ARTICLE 26
  • Computer list of annotated cases

• For a companion report on CISG case law and other material, go to Unilex: click for description of and link to this excellent service

• See also:
  • UNCITRAL digest

  • UNCITRAL digest + added cases

• Selected monographs and anthologies
• Comments on Article 26 from seminal 1986 text by Peter Schlechtriem [Germany]

• Comments on Article 26 from monograph by Jacob S. Ziegel [Canada]

• Comments on Article 26 by Samuel K. Date-Bah [Ghana] in 1987 Bianca-Bonell Commentary on the International Sales Law
• Comments on Article 26 by John O. Honnold [U.S.] in the 3rd ed. (1999) of the most frequently cited text on the CISG: Uniform Law for International Sales

• Comments on Article 26 in December 2000 text by Joseph Lookofsky [Denmark / U.S.]
• Commentarios al Articulo 26 sobre textos de 2001 por Pilar Perales [España]

• Perspectives on Notice of Avoidance: Chengwei Liu [China], 2nd ed. case annotated update (June 2005)
• See also the helpful Enderlein & Maskow text (cited below under the words and phrases section of this Annotated Text material)

• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries
• Christopher M. Jacobs, Notice of Avoidance under the CISG: A Practical Examination of Substance and Form Considerations, the Validity of Implicit Notice, and the Question of Revocability, 64 University of Pittsburgh Law Review (2003) 407-429
• Supplementary list of citations to Article 26 commentaries: Unilex citations*

  * Most members of the Autonomous Network of CISG Websites also offer bibliographies. Many are tailored, concentrating on commentaries by authors from or writing on CISG issues of special interest to specific countries or regions; some, e.g. CISG online are general and extensive; some, e.g., CISG-Belgium and CISG-Finland also list commentaries by individual articles of the CISG.

• To identify other relevant commentaries, go to the cisgw3 Bibliography and Bibliography Search Form [avoidance, notice and remedies are search form entries you may wish to consider]

  Bibliography citations on avoidance

  Citations on remedies

  Citations on notice

  We also encourage you to tailor your own cisgw3 bibliography search to the specific aspect of this article that you are researching.*

  * The cisgw3 bibliography contains over 500 pages of citations. Analyzing these listings can pay dividends.

Links to related articles

Attention to related articles and to the CISG in its entirety is important. This is an autonomous law, i.e., it is meant to be construed within its four corners. When considering aspects of the CISG, because this law relies heavily on general principles, one ought to look at related provisions and the CISG in its entirety.

• For a collection of links to articles that pertain to avoidance, go to Annotated Text of Article 25 [Definition of "fundamental breach"]

Words, phrases and concepts

• The Enderlein & Maskow text is a good place to commence words and phrases research. Click for their analysis of words, phrases and concepts in this article.

  See also:

• "notice"
• oral vs. written

By virtue of the Convention's "informality principle",[1] "[t]he notice can be oral or written and can be transmitted by any means."[2] However, this informality principle does not apply if the contract, usages or practices provide otherwise (Articles 6 and 9), nor does it apply to the content of the notice.

• impact of an Article 96 declaration

Honnold states: "Article 26 does not require that the notice be given in writing." He points out, however, that "eight States, including China, made declarations under Article 96 rejecting provisions of CISG that allowed effective notification in form other than in writing -- e.g., Articles 11, 12, 96 . . ." [3] Schlechtriem states: "Even when Contracting States make use of the reservation in Article 96, domestic requirements on form are only to be regarded . . . as far as they relate to the formation of the contract, its modification or consensual termination. [The] precise formulation [contained in Articles 12, 29 and 96] 'its modification or termination by agreement' makes it clear that a one-sided declaration to terminate a contract does not fall within the scope of the reservation and the corresponding domestic regulations on form . . ."[4]

• content of notice

  Enderlein & Maskow state, "[The] wording [of the avoidance notice] must be unequivocal. In the case of doubt it should . . . be interpreted as a mere threat of avoidance."[5] Honnold states: "A buyer's declaration of avoidance, to be effective under Article 26, must inform the seller that the buyer will not accept or keep the goods. Conversely, a seller's declaration of avoidance must inform the buyer that the seller will not deliver the goods or, if the goods have been delivered, that the seller demands their return. . . ."[6]

• communication of notice

  An Article 26 notice is governed by the dispatch theory. For a commentary on this and other notices, go to Peter Schlechtriem, Effectiveness and Binding Nature of Declarations (Notices, Requests or Other Communications) under Part II and Part III of the CISG, in: Cornell Review of the Convention on Contracts for the International Sale of Goods (Kluwer 1995) 95-114.

• electronic communications. For a current and authoritative ruling on electronic communications and article 26, go to CISG-AC Opinion no. 1, Electronic Communication under CISG, 15 August 2003. Rapporteur: Professor Christina Ramberg, Gothenburg, Sweden.
• reasonableness. Although not specifically mentioned in this article, reasonableness is a general principle of the CISG
  • For the definition of reasonableness recited in the Principles of European Contract Law and references to reasonableness in Continental and Common Law domestic rules, doctrine and jurisprudence, go to PECL article 1:302 and the comment and notes prepared for this provision

  • To drive home the correlation between the PECL's definition of reasonableness and the evident same meaning of this term to CISG legislators when they used the concept either specifically or as a general principle of the uniform law they drafted, see overview comments and comments that illustrate the similar manner in which this concept fits the CISG

For a Doctoral thesis on "Reasonableness" in International Commercial Law, go to Guillaume Weiszberg, Le "Raisonnable" en Droit du Commerce International [pour le doctorat en droit de l’Université Panthéon-Assas (Paris II), 7 novembre 2003]

FOOTNOTES

1. Jerzy Rajski, in: Bianca/Bonell Commentary on the International Sales Law (Giuffre: Milan 1987) 126.

2. Secretariat Commentary on Article 24 of the 1978 Draft [became CISG Article 26], UN Doc. A/CONF. 97/5 (14 March 1979), in: United Nations Conference on Contracts for the International Sale of Goods, Official Records, UN Doc. A/CONF.97/19 (1991), p. 27, para. 4.

3. John O. Honnold, Uniform Law for International Sales, 3rd ed. (Kluwer 1999) 215 [citations omitted].

4. Peter Schlechtriem, Uniform Sales Law (Manz: Vienna 1986) 45 [citations omitted].

5. Fritz Enderlein & Dietrich Maskow, International Sales Law (Oceana 1992) 243.

6. Honnold supra note 3 [citations omitted].

Pace Law School Institute of International Commercial Law - Last updated September 18, 2009

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