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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

[TEXT OF THE PREAMBLE] [1]

The States Parties to this Convention,

Bearing in mind the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a new International Economic Order [2],

Considering that the development of international trade on the basis of equality and mutual benefit [3] is an important element in promoting friendly relations among States,

Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems [4] would contribute to the removal of legal barriers in international trade and promote the development of international trade [5],

Have agreed as follows:

[WORDS AND PHRASES, CONCEPTS

1.   importance of preamble
2.   establishment of a New International Economic Order
3.   equality and mutual benefit
4.   take into account the different social, economic and legal systems
5.   removal of legal barriers ]

[COMMENTARY]

[1] [importance of preamble]

Opinions differ in the legal systems as to the legal importance of preambles. In the Eastern European countries preambles, in general, define in a binding way the social function of the respective legal act. That definition is then decisive when it comes to interpreting such act. In common law countries, however, where skepticism prevails in regard to general principles, they play a negligible role. Honnold, in his commentary, does not even comment on the CISG preamble, and Evans (BB, 25) is very skeptical about it. Loewe does not want to refer to it in the interpretation of specific provisions. [page 19]

The preamble of the Convention, which was drafted at the diplomatic conference, was not the subject of substantive discussion (O.R., 219 fol). This might be an indication that no particular importance was attached to it. It would, however, be inappropriate to dismiss the preamble from the start as insignificant from a legal point of view. The principles it contains can be referred to in interpreting terms or rules of the Convention, such as the term of "good faith" (Article 7, paragraph 1) or the rather frequent and vague term "reasonable".

It could also be used to fill gaps because those principles can be counted among, or have an influence on, the basic rules underlying the Convention (Article 7, paragraph 2). The spirit of the preamble should also be taken account of when agreed texts of sales contracts are to be interpreted.

All in all and in spite of the reservations to follow, the preamble can be used, in a cautious way, to put restraint on the immense liberty the parties have to dispose of the Convention (Article 6). In so doing, a referral to national law, which would otherwise be necessary, can be avoided.

[2] [establishment of a New International Economic Order]

      [2.1] Reference is made here to the Declaration on the Establishment of a New International Economic Order of 1 May 1974,

3201 S-VI (resolutions 220 fol) and to the Programme of Action on the Establishment of a New International Economic Order of 1 May 1974, 3202 S-VI (ibid 234 fol). Both resolutions contain political-economic principles which aim to eliminate the developing countries' economic backwardness.

      [2.2] The first part of the preamble should be understood as including the CISG into the efforts for the establishment of a New International Economic Order and making it a component of those endeavours. Hence the altruism that Winship, Commentary (625), deduces from the preamble. But the Convention can make only a moderate contribution towards that objective. This can be inferred from the fact that trade measures, which are expressed in foreign trade regulations, have a much greater influence on the international flow of goods that the unified sales law (in this sense Date-Bah, Standpoint, 40). Furthermore, the Convention can exercise only a limited influence because it can be altered in general and disposed of (Article 6). [page 20]

Experience has shown that reference to current documents in a Convention which comes into force only eight years after its adoption and which is to exist for decades entails quite a few problems. We believe that a general reference to the New International Economic Order, as it is included in the preamble of the Convention on Agency, is more appropriate. We do not see any disadvantage in even renouncing such reference, as is done in the preambles to the Factoring and Leasing Conventions, for requirements which go beyond those mentioned under note 3 cannot clearly be deduced from the New International Economic Order and applied to contractual relations. It is, therefore, sufficient, to make only general mention of it.

[3] [equality and mutual benefit]

Emphasis is place here on two of the particularly important principles of international trade, "equality" and "mutual benefit", which should also govern the relations between States and the process of shaping the New International Economic Order. They expressly refer to the relations between States. However, it is exactly this part of the preamble which is relevant for commercial relations as well, for equal and mutually beneficial relations between States in this context have to be specified in the respective commercial relations, including sales contracts.

[4] [take into account the different social, economic and legal systems]

In the quarterly meetings before the holding of the diplomatic conference, agreement could be reached in that the different legal systems were taken into consideration in the Convention. As a result of those discussions, the Convention has the character of a compromise. This can be seen from both the substantive solutions and the regulation methods used (Preface 2.5. and Maskow, Hauptzüge, 546 fol).

[5] [removal of legal barriers]

The idea that the unification of law would promote international trade, as it is expressed here in an exaggerated way ("... removal of legal barriers"...), is the underlying motif of any efforts to achieve uniform laws in this field (c. Preface 1.1, 2.2, 2.3.). From this wording it can be deduced, in our view, that legal problems should, whenever possible, be solved in line with the Convention. Doubts, however, should always be removed in applying the provisions of the Convention, as is stipulated in Article 7, paragraph 2. [page 21]

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