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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 12 [Effect of declarations relating to form]

[TEXT OF THE UNIFORM LAW]

Any provision of article 11, article 29 or Part II of this Convention that allows [1] a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply [2] where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention [3]. The parties may not derogate from or vary the effect of this article [4].

[WORDS AND PHRASES, CONCEPTS

1. exclusion of any form requirement
2. reservation as to form
3. Art. 96 declaration ]

[COMMENTARY]

[1] [exclusion of any form requirement]

The possible exclusion of any form requirement does not refer to all indications of intention and even less to all legal acts which come under the Convention's scope of application, but only to the conclusion of the contract (Art. 11), agreed avoidance of contract (Art. 29) and to all indications of intention ("or other indication of intention") which Part II of the Convention on the conclusion of a contract provides for. The decisive indications of intention of Part II, like offer and acceptance, will be expressly mentioned below. The freedom of form in the case of a reservation does, for instance, not apply to the withdrawal of an offer (Art. 15, paragraph 2) and the revocation of an offer (Art. 16, paragraph 1). National form requirements should, however, be seldom. Indications of intention which are mentioned in other parts of the Convention (except for Arts. 11 and 29), are however, also in the context of a reservation not governed by form requirements which may exist under national law (note 3). This is true, as was made clear at the Conference by a precise statement (O.R., 272 fol), of the statement according to which the contract is made void [page 74] (Art. 26) and of the notice of lack of conformity (Art. 39, paragraph 1).

[2] [reservation as to form]

      [2.1] Article 12 provides for the consequences which follow from a reservation for the contractual relations of the parties. The seeming duplication of the rule was called for because Article 96 includes only the admissibility under international law of the reservation, hence only relates to the relations between States.

      [2.2] The Convention merely states that the named provisions concerning freedom of form (note 1) do not apply in the case of a reservation when the party has his place of business in a State making a reservation. There is no positive provision as to the form. This corresponds to the one-sidedness of a reservation which has the effect that no agreement is brought about between the State making the reservation and the other State. As is widely believed, the applicable provisions as to form have to be taken from the applicable national law in this case (Art. 1, note 6) (Schlechtriem, 30, 32; Honnold, 156; Loewe/Lausanne, 20; Rajski/BB, 126 fol). The written form, therefore, is a condition for the validity of a contract only when it is prescribed by the applicable domestic law. Consequently, when a sales contract is concluded in a non-written form between a party from a reservation State and a party from a non-reservation State, that contract is valid no less than if it is governed by the law of the non-reservation State which does not provide for the relevant contract to be made in writing. But also the opinion to the contrary has found renowned champions (note 10 of Art. 96).

[3] [Art. 96 declaration]

The declaration under Article 96 must state that the provisions contained in Article 12, which allow a contract of sale to be made in any form other than writing, do not apply where a party has his place of business in the State making the declaration.

4. Article 12 does thus contain the sole mandatory rule of the Convention (but compare Article 6, note 2). The exclusion of the Convention as a whole, however, is hereby not precluded (Article 6) because in that case national law is invoked from which the respective rules as to form are to be deduced (Art. 29, notes 1.3. and 5). [page 75]

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Pace Law School Institute of International Commercial Law - Last updated August 7, 2002
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