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Reproduced with permission from 23 International Lawyer (1989) 443-483

excerpt from

Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods

Alejandro M. Garro [*]

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Writing Requirement

Most Western legal systems have abandoned the requirement of a writing for the sale of movable property. Because most delegates felt that writing requirements interfere with the necessary speed of commercial transactions, article 11 of the Convention states that a contract of sale need not be in writing and may be proved by any means, including witnesses. Because many socialist legal systems require a writing for a binding contract, however, article 96 permits States that require contracts of sale to be evidenced by a writing to declare article 11 inapplicable.[80] By availing itself of this "statute of frauds" reservation, a Contracting State will apply ordinary choice of law rules to determine whether a writing is necessary.[81] This was a clear-cut compromise taking the form of a declaration allowed by the Final Provisions of the Convention.[82]

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* Alejandro M. Garro, Lecturer in Law, Columbia University. This paper was submitted to the 81st Annual Meeting of the American Association of Law Libraries, June 26-29, 1988.

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80. The representative of the Soviet Union argued in particular that the preservation of domestic law requiring written documentation in international sales contracts was critical to protect established practices within the Soviet government for the approval and completion of foreign trade agreements. See Analysis of Replies and Comments by Governments on Hague Conventions of 1964: Report of the Secretary-General, U.N. Doc. A/CN.9/31, reprinted in (1970) 1 Y.B. U.N. Comm'n on Int'l Trade L. 159, 170; see also J. Honnold, Uniform Law, supra note 13, 128.

81. The law of the declaring State does not automatically supersede the law of the nondeclaring State, but the parties to an international sales contract cannot agree to be bound by an oral modification if any party has its principal place of business in a Contracting State that has preserved its own statute of frauds under art. 96. See Convention, supra note 3, art. 12.

82. It has been reported that the Soviet representatives were more interested in the reservation as to the written requirement than the delegates from other socialist countries. The United States supported some deference to national law on the requirement for of a writing, apparently for the purpose of reaching a compromise with the Union of Soviet Socialist Republics on the limitations on specific performance finally embodied in art. 28 of the Convention. See Report of Secretary-General: Analysis of Comments by Governments and International Organizations on Draft Convention on International Sale of Goods as Adopted by the Working Group on International Sale of Goods, U.N. Doc. A/CN.9/126, reprinted in [1977] 8 Y.B. U.N. Comm'n on Int'l Trade L. 142, 150; see also Maskow, supra note 79, at 53 (noting that in the German Democratic Republic the written requirement is prescribed only for plant contracts and contracts on mercantile agency, and for certain clauses and declarations); Kastely, Unification and Community, supra note 74, at 616, n. 187; Eörsi, General Principles, International Sales, supra note 13, at 2-32.

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

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