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 96 [Declarations relating to contracts in writing]

[TEXT OF THE UNIFORM LAW]

A Contracting State [1] whose legislation [2] requires contracts of sale to be concluded in or evidenced by writing may at any time [3] make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale [4] or its modification or termination by agreement [5] or any offer [6], acceptance [7], or other indication of intentions to be made in any form other than in writing, does not apply [10] where any party has his place of business in that State [9].

[COMMENTARY]

[1] This reservation goes back to a proposal by the USSR. Argentina, Byelorussia, Chile, China, the Ukraine and Hungary have so far made a relevant reservation.

Concerning the importance of the written form in international trade, compare notes to Articles 11 and 12.

[2] It is a condition for the reservation to be taken that the State in question has a legislation which either requires that international sales contracts be concluded in writing or does not permit evidence for the conclusion and the content of a sales contract other than in writing. It is left open, whether that legislation only includes civil law and the law of civil procedure or also administrative law. This should be left to any State which wants to declare the reservation.

[3] This is to allow such States to make the reservation which only at a later date include the requirement of the written form in their legislation (O.R., 444). As to the effectiveness of a declaration, compare Article 97.

[4] Compare Article 18, paragraph 1.

[5] Compare Article 29.

[6] Compare Article 14.

[7] Compare Article 18.

[8] Compare Article 26.

[9] Thus the reservation is at all times effective only for one's own companies. [page 382]

[10] The effect of the reservation is disputed. Mostly the view is held that, when excluding the relevant provisions of the Convention pursuant to the PIL rules, the law which would otherwise apply is to be identified which will then determine the form of the contract. (So e.g. H. Stoll, "International-privatrechtliche Fragen bei der landesrechtlichen Ergänzung des Einheitlichen Kaufrechts", in Festschrift für Murad Ferid, Frankfurt on Main, 1988, p. 506; also Czerwenka/Freiburg, 170 fol). According to these views, the reservation has no other effect than to have the provisions of the Convention replaced by the respective domestic law. A court in a non-reservation State would, therefore, not automatically apply rules of the reservation State which concern the written form. On the other hand, a reservation State would probably, for reasons of public policy, apply its own rules of form, even when otherwise the law of the other State would have to be invoked. An option providing for a relevant reservation was also integrated in the Hague Convention on the Law Applicable to Contracts for the International Sale of Goods (see also Winship/Parker, 1-47).

On the other hand, the view is held that the declaration of a reservation automatically entails an obligation in regard to the form of sales contracts (so L. Vékas, "Das UNO-Abkommen über den internationalen Warenkauf vor seinem Inkrafttreten I.", Magyar Jog, 1987/5, p. 385 fol). Rehbinder (Freiburg, 154 fol) holds that the reservation of a State where the written form is required must be respected in the other Contracting States. This could be done in such a way that Article 12 is interpreted extensively in that the form rules of States making reservations are considered as being valid everywhere, or that foreign form rules, which have their roots in economy, be applied in the frame of international private law (Sonderanknüpfung). [page 383]

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 September 25, 2002
Go to Database Directory || Go to Bibliography
Comments/Contributions