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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 [Secretariat] Commentary justifies the exclusion of a writing requirement in art. 11 on the ground that many international sales contracts are concluded by modern means of communication which do not always involve a written contract. An equally persuasive reason is that writing requirements encourage litigation and unmeritorious defences. Writing requirements for contracts of sale were repealed in the U.K. in 1954 [Law Reform (Enforcement of Contracts) Act, 1954, c.34] and in British Columbia in 1958 [Stat. B.C. 1958, c.18], and no adverse consequences have resulted. Very few cases have been reported during the past decade in those Provinces that have retained the requirement and a statistical survey conducted on behalf of the Ontario Law Reform Commission shows that manufacturers frequently ignore the requirements in practice when accepting orders for goods [OLRC Sales Report, pp.108-110]. The OLRC Sales Report also recommended repeal of s.5 of the Ontario Act.
2. The precise scope of the second sentence of art. 11 is not clear. Presumably it was intended to override any requirement under domestic law governing the proof of contracts not reduced to writing such as the "commencement de preuve" under the Quebec Civil Code. What is less clear is whether the sentence also permits the introduction of evidence to add to, vary, or contradict the terms of a writing contrary to the parol evidence rule of the common law.
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