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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217

excerpt from

The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)

Harry M. Flechtner [*]

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B. Incorporation of Non-Uniform National Law into the CISG

The CISG does not attempt to provide rules for every legal issue that can arise in an international sales transaction. Such an effort, indeed, would have required a massive body of civil and criminal law dealing with questions relating to everything from larceny and fraud to customs and libel issues. The Convention's ambitions, understandably, are far more modest. The basic definition of the limited subject-matter scope of the CISG is in the first sentence of Article 4: "This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract."[38] This limited focus omits some subjects, that a lawyer from the United States might think of as part of sales law -- subjects that, at any rate, are dealt with in Article 2 of the U.C.C.[39] Nevertheless, the subject matter that the CISG defines for itself corresponds roughly to a very familiar division of U.S. law -- contract law, as opposed to tort law, property law and other major fields into which U.S. civil law has traditionally been divided. For this reason, U.S. lawyers are likely, on the whole, to feel comfortable with the way that the CISG limits its subject-matter scope.

The fact that the subject-matter reach of the Convention is limited, of course, means that some sales-related issues have not been brought within its regime of uniformity. Perhaps the most important example involves questions of contractual "validity," which are expressly placed beyond the scope of the CISG by Article 4(a). While there is uncertainty concerning the exact reach of the validity exclusion, commentators generally agree that issues of fraud, duress, unconscionability, illegality, capacity to contract, and agents' authority are matters of validity that are beyond the scope of the Convention.[40] There is also consensus that questions of validity are referred to the national law of the jurisdiction designated by applicable choice of law principles.[41] Indeed, the purpose of the "validity" exception was to preserve national rules that embodied important social values and which could not be waived by the agreement of parties to a contract.[42] Thus even where a sales contract is governed by the CISG, validity issues remain subject to the non-uniform rules of individual States. For this reason it has been asserted that the validity exception poses "a particular danger" to the development of a uniform and coherent jurisprudence under the Convention.[43]

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[T]his provision poses a significant threat to uniform results in transactions governed by the CISG.[73] To counteract this threat, a leading commentator has argued that the reach of the validity exception should be limited by confining the term "validity" to issues that are almost universally treated as a matter of validity in the various national legal systems.[74] The drafters' purpose in creating the "validity" exception, however, was to preserve the applicability of national rules deemed important enough by individual states that the rules were not, under the state's domestic law, subject to contrary agreement of the parties.[75] The restrictive approach to the validity exception proposed by the commentator would, in the name of uniformity, allow the Convention to displace national rules of validity unless those rules had gained almost universal acceptance. This stands the "autonomous interpretation" of the CISG on its head by ignoring the drafters' expressed intent to defer to national law on matters of validity. Nothing in the uniformity principle of Article 7(1) justifies such an attempt to undermine the purposes behind the validity exception.

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Go to entire text of Flechtner commentary


* Professor, University of Pittsburgh School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.

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38. CISG, supra note 1, art. 4.

39. A prime example of such an issue is whether a buyer acquires good title to goods -- a matter that is treated as part of U.S. domestic sales law (See 2-403 of the Uniform Commercial Code) but which is expressly excluded from the Convention by Article 4(b).

40. See Harry M. Flechtner, More U.S. Decisions on the U.N. Sales Convention: Scope, Parol Evidence, "Validity" and Reduction of Price Under Article 50, 14 J.L. & Com. 153, 166 (1995) and authorities cited therein.

41. See Bianca et al., supra note 17, art. 4, 2.4 at 45; Albert H. Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods 81 (1989); Flechtner, supra note 40, at 165; Helen Hartnell, Rousing the Sleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods, 18 Yale J. Int'l L. 1, 3 passim (1993).

42. See Hartnell, supra note 41, at 22-45.

43. Id. at 7.

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73. See supra text accompanying note 43.

74. Peter Schlechtriem, Unification of the Law for the International Sale of Goods, in XIIth International Congress of Comparative Law (German National Report) 121, 127 (1987), discussed in Hartnell, supra note 41, at 48.

75. See supra text accompanying note 42.

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Pace Law School Institute of International Commercial Law - Last updated August 11, 1999

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