Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 10 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 10 [draft counterpart of CISG article 11].
To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that article 10 of the 1978 Draft and CISG article 11 are substantively identical.
Text of Secretariat Commentary on article 10 of the 1978 Draft
[draft counterpart of CISG article 11] [Form of contract]
PRIOR UNIFORM LAW
ULIS, article 15. ULF, article 3.
1. Article 10 [draft counterpart of CISG article 11] provides that a contract of sale need not be evidenced by writing and is not subject to any other requirements [requirement] as to form [see footnote 1].
[The reference to "any other requirement as to form" is said to include within its scope the proposition that" 'consideration' is not required." Peter Schlechtriem, "Uniform Sales Law (Vienna: Manz), p. 45). Hyland believes that the reference to "any other requirement as to form" also includes within its scope such matters as the statement in UCC 2-316 that" to exclude or modify any implied warranty of fitness the exclusion must be in writing and conspicuous." He states: "Since the UCC's provision, governing the disclaimer of implied-warranties establishes standards for the formal validity of the disclaimer, it is displaced by the Convention's Article 11." Richard Hyland, "Conformity of Goods to the Contract Under the UN Convention and the Uniform Commercial Code", Einheitliches Kaufrecht und Nationales Obligationenrecht, Schlechtriem ed. (Baden-Baden: Nomos Verlagsgesellschaft, 1987), pp. 314-315).]
2. The inclusion of article 10 [draft counterpart of CISG article 11] in the Convention was based on the fact that many contracts for the international sale of goods are concluded by modern means of communication which do not always involve a written contract. Nevertheless, any 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.
[Citing the above Commentary, Enderlein & Maskow state: "Form prescriptions under foreign trade regulations, e.g. in the area of approval of goods and foreign exchange laws, are not affected by Article 11 insofar as the sanctions envisaged therein remain active, e.g. punishment in the event of violating those prescriptions. But they do not attain any effectiveness in the relations between the parties to the sales contract. The contract remains valid. ..." Fritz Enderlein & Dietrich Maskow, "International Sales Law (Oceana 1992) p. 73). They further state: "Other State regulations, e.g. ministerial orders, and also internal company rules which prescribe that international sales contracts are to be concluded in writing are treated similarly. [The rule in Article 11] refers to the formation of the contract and thus acts which lead to a contract. In regard to other legal acts the CISG generally does not prescribe a specific form unless it follows from the nature of the act (e.g. statement, Article 8 ... which can be done orally, -- Article 24, Article 21, paragraph 1, but not by conduct implying an intent). Contradictory regulations under domestic law, which insofar are still scarcer, have to come in second." Id. at 74.]
3. Some States consider the requirement that contracts for the international sale of goods be in writing to be a matter of important public policy. Accordingly, article 11 [draft counterpart of CISG article 12] provides a mechanism for Contracting States to prevent the application of the rule in article 10 [draft counterpart of CISG article 11] to transactions where any party has a place of business in their State (OFFICIAL RECORDS, p. 20).
1. See also para. 3 of the commentary to article 4 [draft counterpart to article 4 of the CISG] and the commentary to article 11 [draft counterpart of CISG article 12].