Article 13 [Writing]
[TEXT OF THE UNIFORM LAW]
For the purposes of this Convention "writing" includes telegram and telex [1].
[COMMENTARY]
1. This rule, without any doubt, refers to cases where the Convention itself relates to the written form, e.g. in Article
29, paragraph 2. It seems to be appropriate, however, to invoke it also when interpreting a writing requirement under
national law (Article 12, note 2). Although the use of the Convention for such interpretation of the national law leads
to a strange entanglement of the two, it may be considered as covered by the introductory part of this Article for it
refers to an interpretation of the national law to the extent to which it is to be applied as an exception within the
substantive scope of application of the Convention. The definition given here of the written form is valid also for
a contractually agreed written form.
By contrast, it seems to us to go too far to turn this rule as Schlechtriem does (32 fol) generally into a "uniform
objective standard for form requirements". When the national law to be invoked as an exception prescribes further-reaching form requirements than mere writing (authentication, e.g. at consulates; certification, affixing of seal or
stamp), those will certainly not be removed by Article 13. The rule includes machine-readable data carriers for being
regarded as "writing". They certainly exist objectively and independently of the parties and are durable, thus meeting
essential criteria for writing requirements to be substantiated. There are, however, concerns in regard to the
recognizability of the content of their declaration by the other party which speak against recognizing them as written
form. Similar considerations are relevant as they were made in respect of languages (Art. 8, note 3.2.). We, therefore,
believe that machine-readable data carriers can be considered as indications of intention in the meaning of the CISG
only if their content is recognizable to the addressee. In that case they also constitute written declarations or
communications.
The Factoring Convention adopted in 1988 already considers further possibilities formulating: "notice in writing
includes, but is not limited to telegrams, telex and any other telecommunication capable of being reproduced in
tangible form" (Art. 1, paragraph 4, subpara. (b)) This refers in the first place to telefax and does not address the
special problems of recognizability of machine-readable data carriers. It is said furthermore and expressly in the
Factoring Convention that a notice in writing need not be signed, but must identify the person by whom or in
whose name it is given (Art. 1, paragraph 4, subpara. (a)). A signature by a machine would, for instance, be
sufficient. It seems to us that in the light of the discussion at the diplomatic conference (O.R., 269), Article 13
can also be interpreted in this sense, as Rajski (BB, 129) already does, even without reference to the Factoring
Convention. [page 76]
We can, however, not agree with his view expressed in the same place that telegram and telex are less strong
evidence than the traditional written form. This does, in our view, not depend on the category of document, but
rather on such factors as the processing remarks, the role it has played in commercial intercourse between the
parties, like reference to it, etc. [page 77]
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