Go to Database Directory || Go to Bibliography


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 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]

Go to Table of Abbreviations || Go to Explanation of Abbreviated Bibliographic References
Go to entire contents of Enderlein & Maskow text


Pace Law School Institute of International Commercial Law - Last updated August 7, 2002
Go to Database Directory || Go to Bibliography
Comments/Contributions