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Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 141-142. Reproduced with permission of the publisher, Kluwer Law International, The Hague.

Article 13

Telegram and Telex as a "Writing"

§ 130 The Convention imposes no formal requirements with respect to the notices, requests or declarations to which it refers.[1] All such communications may be made orally (face-to-face or by telephone) or by other means.

The Convention refers to "writing" in Article 21(2) ("letter or other writing containing a late acceptance") and in Article 29(2) (contract in writing that requires written modification or agreement).[2] These provisions are supplemented by the following definition:

Article 13 [3]

"For the purposes of this Convention "writing" includes telegram and telex."

The Convention’s few references to a "writing" do not require a signature or other validating mark or sign. Hence, no problem regarding signatures arises in connection with communication by telegram or telex.

Article 13 was drafted prior to substantial commercial use of electronic transmission of facsimiles (FAX) or the making of contracts by electronic data exchange (EDI). The implications of EDI for contract formation will be considered in Part II, Formation of the Contract. See, e.g., §§132.1, 162 at note 7 and §170.4). Stating that "writing" includes telegram and telex does not fix the outer limits of this term as used in Articles 21(2) and 29(2) of the Convention; electronic developments such as FAX and EDI do not present more serious problems of verification than "telegram and telex" and should be assimilated to the definition of "writing" in Article 13.

Questions can arise as to whether communications such as EDI can satisfy the requirements of a "signature" under domestic statutes of [page 141] frauds.[4] However, this question does not arise under the Convention since references to "writing" in Articles 21(2) and 29(2) do not require a "signature". Whether electronic communications satisfy domestic formal requirements preserved by a declaration (reservation) under Article 96 (see Art. 12 at §§128129, supra) depends on the domestic law preserved by the reservation. As we have seen (§129, supra), domestic formalities in States that have not made an Article 96 reservation (e.g., the U.S.A.) may be applicable in transactions with parties in States that have made a reservation under Article 96.[page 142]

FOOTNOTES: Chapter on Article 13

1. See Arts. 39(1), 43(1), 46(2)&(3), 47(2), 48(2)&(3), 63(1), 67(2), 71(3), 79(4), and 88(1).

2. Cf. Art. 18(2) ("oral" offer must be accepted immediately); Art. 24 (in defining when an offer, acceptance or declaration of assent "reaches" a party, there is a distinction between statements made "orally" and those "delivered").

3. Art. 13 was added at the Diplomatic Conference. O.R. 269, 424, Docy. Hist. 490, 645. The discussion emphasized the application of this provision to the modification of agreements by telegram or telex.

4. Ways of meeting this problem are discussed in a thorough study: The Commercial Use of Electronic Data Interchange—A Report and Model Trading Partner Agreement, 45 Bus. Law. 1645–1749 (1990). For other recent studies in this field see the Introduction to Part II, Formation of the Contract at §132.1, infra.

Pace Law School Institute of International Commercial Law - Last updated February 23, 2005
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