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 11 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 11 [draft counterpart of CISG article 12].
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 11 of the 1978 Draft and CISG article 12 are
Text of Secretariat Commentary on article 11 of the 1978 Draft
[draft counterpart of CISG article 12] [Effect of declarations relating to form]
PRIOR UNIFORM LAW
1. Article 11 [draft counterpart of CISG article 12] recognizes that some States consider that it is an important element of public policy that contracts or their modifications or abrogation [termination by agreement] be in writing. Therefore, article 11 [draft counterpart of CISG article 12] enables a Contracting State to make a declaration under article (X) [draft counterpart of CISG article 96] [see footnote 1] to prevent the application of any provision of article 10, article 27 [draft counterpart of CISG article 11, article 29] or Part II of the Convention which allows a contract of sale or its modification or abrogation [termination by agreement] or any offer, acceptance, or other indication of intention to be made in any form other than in writing where any party has his place of business in that Contracting State.
[The only substantive difference between article 11 of the 1978 Draft and CISG article 12 is the CISG's substitution of the phrase "termination by agreement" for the word "abrogation". The Summary Records of Committee Meetings of the 1980 Vienna Diplomatic Conference contain the following explanation. "Mr. Medvedev (Union of Soviet Socialist Republics) said that . . . the meaning of the English word `abrogation' in article 11 [of the 1978 Draft] did not seem to be very clear and [his delegation] would like to see it clarified. Mr. Farnsworth (United States of America) said that the word `abrogation' did not correspond to a precise legal concept in the United States. It could apply either to termination by mutual agreement or to unilateral termination. However, the term was used several times in article 27 [draft counterpart of CISG article 29] in the sense of termination by mutual agreement. It could therefore be considered to have the same meaning throughout the text of the Convention. Therefore, it would perhaps be preferable to replace it by the expression `termination by mutual agreement', which would be less ambiguous" (OFFICIAL RECORDS, P. 272).]
2. As the operation of article 11 [draft counterpart of CISG article 12] is confined to articles 10 and 27 [draft counterpart of CISG articles 11 and 29] and to Part II of this Convention (i.e. articles 12 to 22 [draft counterpart of CISG articles 14 to 24] it does not encompass all notices or indications of intention required under the Convention but only those which relate to the formation of the contract, it modifications and its abrogation [termination by agreement]. Other notices may be given by means appropriate in the circumstances [see footnote 2].
3. Since the requirement of writing in relation to the matters
mentioned in article 11 [draft counterpart of CISG article 12] is
considered to be a question of public policy in some States, the
general principle of party autonomy is not applicable to this
article. Accordingly, article 11 [draft counterpart of CISG
article 12] cannot be varied or derogated from by the parties
(OFFICIAL RECORDS, p. 20).
1. The text of article (X) [draft counterpart of CISG article 96] is reproduced with the other proposed final clauses in document A/CONF. 97/6.
2. See articles 24 and 25 [draft counterpart of CISG articles 26 and 27] and the commentary thereto.