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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 6 [Exclusion, variation or derogation by the parties]

[TEXT OF THE UNIFORM LAW]

The parties may exclude [1] the application of this Convention or, subject to article 12 [2], derogate from or vary the effect [3] of any of its provisions.

[WORDS AND PHRASES, CONCEPTS

1. exclusion of the Convention as a whole
2. subject to Article 12
3. right to modifications ]

[COMMENTARY]

[1] [exclusion of the Convention as a whole]

      [1.1] The Convention, by virtue of law, applies to all sales contracts which come under its sphere of application. The parties may, however, exclude it as a whole, i.e. including Part II regarding the formation of the contract. This may facilitate the adoption of the Convention by certain States because it allows those business circles which cannot get to like it or, at least, not at once to evade it and/or grants them a longer period of adaptation, thus building down possible resistance. Honnold (105) points out that this degree of freedom for the parties in concluding a contract was made possible by excluding certain, meaning those governed by nationally mandatory rules, transactions and issues from the Convention.

      [1.2] [express or implicit exclusion] While Article 3, sentence 2 ULIS provided that the exclusion can be express or implicit, the CISG does not say anything about how this should be done. The Convention can be excluded by expressly declaring so in the offer and also in the acceptance, which then, however, as a rule would take on the character of a counter-offer (Huber, 426 fol; Bonell/BB, 54 fol). But the view is overwhelmingly held that there is also a possibility of implicitly excluding it in its entirety (Bonell/BB, 55 mentioning further proof). By no longer mentioning such implied exclusion it was to be prevented that requirements for it were set too low (as already mentioned in the Secretariat's Commentary, O.R. 17) or that a hypothetical party will were construed in this sense (Huber, 425 fol). There must, however, be relatively clear indications (see also note 1.3.) that such an exclusion is indeed wanted. In regard to the Convention in its entirety this will, in our view, rather seldom be the case in practice.

Under the meaning of Article 7 and of Article 3 of the preambular part the Convention is to apply if there is doubt.

      [1.3] [invoking the law of a Contracting State] If the Contracting Parties have agreed invoking the law of one Contracting State, this does not, as is correctly believed by a majority, mean exclusion of the Convention (among others Schlechtriem, 22; Herber/Doralt, 42; Herber/Freiburg, 104; Bonell, 56). Loewe, 24, speaks up in favour of exploring the party will). In regard to the case most likely to occur in practice, given under Article 1, paragraph 1, subpara. (a), Vékas (346) expresses himself in favour of the [page 48] opposite assumption. When a State participates in the Convention the latter can be assumed to be part of his domestic law so that additional reference to it could be considered as superfluous at first, and/or for the reference to make sense, as an exclusion of the CISG. But the application of the Convention does in no way make the application of the other parts of the national law irrelevant (Article 4, note 3; Article 7, note 11). Therefore, it must be recommended to the parties to determine the national law that is applicable in addition to the Convention (Article 3, note 11) so that they can avoid the uncertainties involved in determining that law, using the conflict-of-law norms. When the parties agree on a shortened form expressing that a specific national law is to apply, then it would clearly amount to a wrong interpretation of their intention to consider this as an exclusion of the Convention. There is also a trend to reject such an exclusion in the FRG's jurisdiction in regard to Article 3 ULIS which is similar to Article 6 of the Convention. The 41 decisions collected by Schlechtriem (Magnus, 123 fol) on this matter are very illustrative and instructive. The interpretation preferred here is also supported by the fact that two proposals (Canada, Belgium), which aimed toward the opposite direction (O.R., 86), were clearly rejected. Agreement on the application of the law of a non-Contracting State will quite often amount to an exclusion of the Convention (Bonell/BB, 56). However, it remains to be explored here whether it should not be referred to in addition.

If the parties wish to safely exclude application of the Convention, they do so best in agreeing to invoke the law of a specific State under exclusion of the CISG (similarly now Winship, "International Sales Contracts under the 1980 Vienna Convention", Uniform Commercial Code Law Journal, 1984/1, p. 65, reacting to views cited in said place which reject the possibility of an implied exclusion). It is not advisable to exclude the Convention without replacement since in that case, the applicable domestic law will have to be determined by mostly using the rather vague conflict-of-law rules.

Reference made in the contract to specific national rules, e.g. in modifying them, can be considered as excluding the Convention as a whole only when they appear to be an expression of the parties' conviction that the Convention should not apply. This may follow, for instance, from the terminology used or from the system of the contract, while the contrary can occur when the rules invoked refer to such issues which are not regulated by the Convention anyway. On no account can the exclusion of the Convention be deduced merely from agreement of such terms of contract which contradict specific CISG provisions because deviating individual exclusions are indeed compatible with the CISG (note 2; but not in agreement Bonell/BB, 56). [page 49]

[2] [subject to Article 12]

This reservation serves to emphasize the rule given in the last sentence of Article 12 (Article 12, note 4).

Bonell (BB, 62) has drawn attention to the fact that there are further Articles (in particular Article 4) which must not be excluded because this would amount to nonsense. We agree in respect of the result, but there is no question of nonsense in this context; this is very well a matter of interpretation. At the time of the diplomatic conference, the generally expressed convictions, including the above-mentioned rejection of the Canadian proposal (note 1.3.) had in no way been sensitized toward prohibiting the exclusion and even less the modification of Article 4 of which particularly subpara. (a) is of interest here. In the meantime, the general convictions have been correctly changed, and now legislative omissions have to be compensated by interpretational efforts.

[3] [right to modifications]

      [3.1] When the contract is governed by the CISG, the mandatory rules of the otherwise applicable national law will be left out of the framework of the Convention's substantive scope of application. To start with, they are replaced by the Convention's provisions. The parties retain, however, the right to modifications. They can make agreements which are in contradiction to the mandatory rules of domestic law (different view on the very similar Article 3 ULIS, Herber/Dölle, 22 and on the result of the present rule also Bonell/BB, 54; evading Honnold, 112). This follows, in our view, also from the fact that a Canadian proposal which was aimed at declaring the exclusion of certain basic obligations (good faith, care) inadmissible was rejected by a large majority (O.R., 86). Most national laws, however, do not contain many mandatory rules under the substantive scope of application of the Convention. The freedom of the parties to make their own arrangements generally meets the needs of international commercial relations. Transactions which are subject to large restrictions in many countries, essentially are excluded from the sphere of application of the Convention (in particular Article 2, subpara. (a), but also Article 4).

Given the growing efforts of fighting grossly unjust contractual practices in international economic relations, it would, however, not have been superfluous to take precautions in order to secure certain basic requirements. We are now faced with the expected attempts (CISG Commentary 1985, 45) to invoke the national law instead (inter alia Bonell/BB, 60, and note 6.2. of Article 4). Once the dam has broken down to national law, the latter enters without encountering obstacles; and there is a risk that safeguards will be invoked which go beyond the requirements of international trade. As a result, the success of the unification of law is diminished. [page 50]

Grossly unjust agreements, which deviate from the CISG, can - under Articles 7, 8 and 9, and possibly under the preambular paragraph - only be interpreted restrictively. They can be declared void only under domestic law pursuant to Article 4, subpara. (a), whose possibilities should, however, not be abused.

      [3.2] [opting-in] Considering the discussion held at the diplomatic conference (O.R., 252 fol), the Convention can be interpreted in such a way that its application to such contracts which are not covered, can be agreed. In this case the substantive and territorial, and hence personnel and time scope of application, can be extended. Such an agreement can be made expressly or implicitly, but in the latter case it has to be sufficiently clear. The mandatory rules of the applicable domestic law, however, are not affected by this (Honnold, 109; Bonell/BB, 62). This follows from the fact that a proposal by the former GDR, aiming toward expressly empowering the parties to agree an extended application of the Convention, was rejected. The reason given for the decision was that a circumvention of mandatory national rules was to be prevented in this way (O.R. 252 fol). The Agency Convention provides for a broadened application by virtue of a relevant declaration by a State (Article 30). An agreed application of the Convention beyond the territorial scope of application is considered possible, including the possibility of superseding the otherwise applicable domestic law (Siehr, 611 fol). [page 51]

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Pace Law School Institute of International Commercial Law - Last updated August 5, 2002
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