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Commentary on the Hague Conventions of the 1st of July 1964
on International Sale of Goods and the Formation of the
Contract of Sale

by Mr. André Tunc

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II. Object of the Law

[ULIS] Article 8 specifies exactly what part of a contract of sale is governed by the Uniform Law.

The Law only governs the obligations of the seller and the buyer arising from the contract of sale.

Except as otherwise expressly provided, it does not govern the formation of the contract, nor does it regulate it in regard to the capacity of the parties or the exchange of their consents or in regard to vitiating factors. In fact, as regards the exchange of consents, States now have, of course, the opportunity to ratify the second of the two Conventions drawn up at The Hague in 1964.

Moreover the Uniform Law is not concerned with the effect which the conclusion of a contract may have on the property in the thing sold. It is well known that different municipal systems may produce very different effects in a contract of sale in regard to the passing of property. For some the mere conclusion of the contract results in the passing of property, whilst for others the contract only gives rise to obligations. Now it was clear from the beginning of the discussions relating to the Uniform Law that whilst it was vain to hope for a uniform rule on this question which was deeply involved both in historic traditions and in the regulation of credit and bankruptcy, on the other hand unification was not necessary if, taking a more direct and practical view, rules were merely provided for three types of questions linked, at least in certain legal systems, to the passing of property:

­ the obligation of the seller to transfer the property in goods free from any right or claim not accepted by the buyer (Articles 18, 52 and 53),

­ the passing of risk, regarded in a number of legal systems as the essential consequence of the passing of property (Articles 96 to 101),

­ the obligation to preserve the goods and to bear the cost of preservation, which are subsidiary aspects (Articles 91 to 95).

It will be noted that there is no contradiction in declaring that the Law does not govern the effect of the contract on the property in the goods sold, then regulating the duty laid on the seller to transfer to the buyer the property in the goods, it being clearly understood that it is then exclusively a question of putting a duty on the seller, and that the rule governing the property remains outside the Uniform Law.

Moreover the Law is not concerned with the validity of the contract or of any of its provisions. These are, indeed, very difficult matters: the traditions of different States rendered difficult either the adoption of a uniform law, or, at all events, its uniform interpretation.

Since the Uniform Law does not govern the validity of contracts, it in no way trenches upon regulations of a police character or for the protection of persons which may be included in municipal legal systems.

Finally, the Law is not concerned with the validity of usages on which the parties may rely. A court therefore retains the power to set aside, as contrary to the public policy of its country, a usage which appears to it to disregard a fundamental right of one of the parties. On the other hand, Article 9 of the Law declares that usages prevail over the Law.

If the object of the Law is thus clearly delimited by Article 8, it will also be noted that the Law contains no reference to the principal forms of maritime or land sales (f.o.b., c.i.f., etc.). The draftsmen of the Law considered that this was a matter which was not yet properly ready for unification by means of an international convention. To have made provision for the principal forms of sale would, in the first place, have meant doubling the volume of a Law which was already long. Moreover the rules applicable to the principal forms of sale are still varied and doubtful. It may be said that it is precisely in a situation of this kind that unification is useful. It, however, appears that in this field a process of convergence and unification by persuasion, basically the task undertaken by the International Chamber of Commerce, may be more beneficial to commerce, through the gradual and progressive character of the convergence which it brings about, than an immediate unification by way of international convention. In short, the draftsmen of the Uniform Law felt that the rules governing the principal forms of sale were still changing, constantly adapting themselves to new practical needs, and that it was not proper to halt a process probably beneficial to commerce. Of course the Uniform Law can be revised. This revision will, however, require the operation of a rather clumsy procedure. In consequence, it seemed from every point of view that the International Chamber of Commerce would play a more useful part in this field than a Commission or Conference for Unification and that it was better suited to this role.

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