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Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28

excerpt from

Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany

Peter Schlechtriem [*]

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The principle of freedom of form was heavily debated in the preparation of the Convention.[50] As a concession to all states who wanted to preserve the form requirements of their domestic laws, there is a reservation clause in Art. 96.[51] Freedom of form is, therefore, not applicable for a sales contract or its modification if a party to the contract has its place of business or habitual residence in a state which has made the Art. 96 reservation. This has already caused diverging opinions about the question of whether in cases where a party has its place of business in an Art. 96 reservation state, the form requirements of the domestic law of this state will always apply [52] or whether the conflict of law rules of the forum state can lead to a domestic law that in turn is based on the principle of freedom of form.[53] Take, for example, a sales contract between a German seller and a Russian buyer. The Soviet Union has made the Art. 96 reservation. Under the first opinion, the contract has to conform to the requirements of Russian law. Under the second opinion, the rules of private international law of the forum state have to be consulted concerning which domestic law is applicable. If, for example, in a German court the conflict of law rules lead to German law, the contract would be valid regardless of the Russian form requirements.

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* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.

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50. As to the legislative history see Raijski in: Bianca/Bonell, supra note 18, Art. 11 1 P. Schlechtriem, supra note 27, at 44; O.R. at 20, 91-92, 271 et seq.

51. A reservation was made, so far, by Argentina, Byelorussian S.S.R., Chile, Hungary, Ukranian S.S.R., U.S.S.R.

52. Enderlein/Maskow/Stargardt, supra note 7, Art. 96 4; Reinhart, supra note 7, Art. 12 3.

53. Herber in v. Caemmerer/Schlechtriem, supra note 7, Art. 96 3; Herber/Czerwenka, supra note 7, Art. 96 3; Raijska in: Bianca/Bonell, supra note 18, Art. 96 2.2; Wey, supra note 18. 473 et seq.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999

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