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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Articles 11 and 12
No Writing Requirement for CISG Contract; Declaration in Derogation

A.  Relation to Formal Requirements Under Domestic Law
B.  Declarations in Derogation of Article 11

92. Some legal systems require that (certain) sales contracts be in writing.[1] Dispensing with that kind of 'formal validity' requirement in the international sales context, Article 11 of the CISG provides as follows:

'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.'

1. The American Uniform Commercial Code, for example, maintains the 'Statute of Frauds' as regards certain contracts for the sale of goods: see UCC 2-201. In the United Kingdom. the corresponding rule (4 of the Sale of Goods Act) was repealed in 1954.

A. Relation to Formal Requirements Under Domestic Law

93. In most CISG Contracting States, Article 11 serves to override the formal validity requirements of domestic law.[1] On the hand, it should be noted that the rule does not bar the parties from imposing formal requirements, nor does it necessarily negate certain regulations (and sanctions) in States which require a writing for purposes of administrative control or for enforcement of exchange control laws.[2]

1. Regarding declarations in derogation of Article 11, see Article 12 and No. 94 et seq.
2. See A/CONF./97/5, Secretariat's Commentary to Article 10 of the 1978 draft, para. 2. Regarding agreements as to form. government procurement contracts and the relationship between Article 4(a) and Article 11, see Honnold, Uniform Law (1999) pp. 135-137 [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>].
[page 59]

B. Declarations in Derogation of Article 11

94. Just as the general rule in Article 11 is that CISG sales contracts need not be in writing, other Convention rules dispense with writing requirements as regards contract formation and contract modification. However, many States still attach great importance to requirements such as these, and in order to make the Convention acceptable for those States, Article 12 of the CISG provides as follows:

'Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article.'

95. As a starting point, the rules in Articles 11, 29 and CISG Part II do 'not apply' where a party has its place of business in a State whose domestic legislation requires contracts of sale to be concluded in or evidenced by writing and which therefore ratifies the CISG subject to an Article 96 declaration.[1]

1. Regarding Articles 12 and 96 see infra No. 332.

96. However, the effect of an Article 96 declaration is limited, in that only the declaring State's formal writing requirement remains applicable to international sales subject to the CISG. Where only one of the parties to an international sales contract resides in such a declaring State, the forum court must resolve a conflict of laws; a forum court asked to apply the formal requirements of the declaring State (as opposed to Article 11) should do so only when its rules of private international law lead to the application of the declaring State's law.[1]

1. See, e.g., the decision of Hoge Raad (Netherlands), 7 November 1997, NIPR 1998, nr. 91, also reported in UNILEX, where the applicable (Dutch) PIL rules led (not to the law of Russia, which has made an Article 96 declaration, but rather) to the seller's (Dutch) law and thus the CISG. Rule in Art. 11. Accord: Honnold J., op. cit. (1999) at pp. 139 ff. [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>]

Pace Law School Institute of International Commercial Law - Last updated April 1, 2005
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