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Uniform Law for International Sales under the 1980 United Nations Convention

3rd edition (1999)

John O. Honnold

Index

References are to section numbers

Acceptance of offer 157–178. Decisions: 160
communication, necessity for 158, 164
criteria 158
late acceptance made effective by offeror 173–175
—change of circumstances during delay 175
modifications of offer 165–170. Decisions: 167
—acceptance of counter-offer by shipment 170–170.1
—commercial importance 165
—failure to object 167
—gap-filling by the Convention 170.4
—"last shot" theories 170.3–170.4
—materiality of 169
performing requested act 163–164
—necessity for communication 164
rejection of offer followed by acceptance 152–154
shipment as 170
silence 160: conduct. Decisions: 170
time limits 161–162
—interpretation of offer 171
—acceptance must reach offeror within 161–162, 179
time contract concluded 178
transmission of, delay or loss 162, 175
—duty to notify offeree of delay 176
—electronic data exchange 162
withdrawal of acceptance 177

"Act or Omission" (Arts. 66, 80, 82), standard for application 448.1

Agency
domestic law applicable 66

Aircraft
purchases excluded 54

"Aliud" conceptsee: Conformity of goods. Rejected: Decisions: 256.1

Ambiguous contracts—intent to choose CISG or domestic law; Decisions: 77.1

Ambiguous statementssee: Interpretation of contract

Amendment of Sales Convention (Art. 90) 34, 462–463

Analogical applicationsee: "Gaps" in Convention

Applicability of Conventionsee: Scope of Convention

Anticipatory breach 395–398—see: Avoidance of contract

Arbitration
agreement not barred by avoidance 442

Assurance of performancesee: Suspension of performance

Auction sales
excluded 51

Avoidance of contractsee: "Act or Omission", Fundamental breach, Cure, Damages, Notice fixing final period, Remedies; Restitution, Suspension of performance. Decisions: 186
cure, effect of 184, 246–247, 296. Decisions: 184, 313
—removal of third-party claims 266
damage measurement 409–415
domestic law 301
effects of avoidance 437–452
—arbitration 442
—damages 443, 449
—restitution 444–444.1, 450–452. Decisions: 419.2, 444.1
——benefits received from goods 451.3. Decision: 451.3
——cross claims 452
——interest on sums received 451.2
—right to compel performance 440
failure to establish letter of credit 323
fundamental breach, avoidance for, Decisions: 304, 305
—by buyer 304
—by seller 354. Decisions: 356.1
—definition of 181–186
hazards of avoidance 356, 396–397
instalment contracts 399–402. Decisions: 401
—defective goods 400
—future instalments 401
—past deliveries 402
non-delivery following notice (Nachfrist) 287–291, 305. Decisions: 304, 305
non-payment following notice 350–352, 354
notice, required for 187.1. Decisions: 187.2
—content of notice 187.2
—ULIS and ipso facto avoidance 187.1
part of goods missing or non-conforming 304, 314–317
—avoidance as to non-conforming part 316. Decisions: 316
—avoidance of entire contract 317
party exempt from damages (avoidance against) 308.2
preservation of contract, reasons for 27
prior to date for performance 395–398. Decisions: 397
—advance notice 398
—basis for 396
—effects of 397
—hazards and advantages, 356, 396–397
return of goods 444–448. Decision: 448.1
requiring substitute goods not barred 283, 440.2
time limits for avoidance 306–308, 355–356.1
—after non-delivery 307
—after payment by buyer 356
—delivery of non-conforming goods 308. Decision: 308
—domestic rules 306
—seller’s knowledge of defects as excuse for delay 308.1

Barter56.1 see: Scope of Convention

"Battle of the forms"165–170.4; see also Acceptance of offer

Bibliographic Resourses
books and reports
non-English
periodicals: abbreviations

Buyer’s obligationssee specific topics
generally 321–357
summary 321–322

Cancellationsee: Avoidance of Contract

Carriage by sea
Hamburg Rules (1978) and place for delivery 208

Carriage of goods. Decisions: 209
damage during transit 363–371
shipping arrangements 212–215
—insurance 215
stoppage in transit 390

Case-law under Convention
abreviations: judical and arbitral decisions
access to international materials 93
CLOUT
discovery tools
Internet
UNIDROIT
use in interpretation 92

Checks, notes and other money paper
excluded from Convention 53

Civil or commercial character
irrelevant under Convention 48

Communication with other party
acceptance by action 163–164
delay or loss 188–190
—acceptance 162, 175
—"dispatch" principle as general rule 189
—exceptions from "dispatch" principle 190, 287, 300, 350, 357, 423
—request for permission to cure 300
duty to communicate
—general principle 100, 134, 248
—when acceptance delayed 176
good faith obligation 95
types of communications required 106 n.4, 130 n.1
when communication "reaches" a party 179
withdrawal of communication prior to receipt 138, 156, 177

Compelling performance (specific performance)
buyer’s action against seller 279–286
—repair 284
—resort to inconsistent remedy; avoidance 282
—substitute goods 283
damages also recoverable 277
defense of third-party claim 270.1
domestic law
—applicable (Art. 28) 191–199
—not applicable when Convention restricts remedy 285.1
—civil law systems 199
—common law availability when needed 281.1
functional consequences of 193.1
inconsistent remedies, form and substance 282.1
limited value in practice 286
—restrictions on, to protect creditors 286
restrictions imposed by Convention
—delay during market change; good faith 95, 285
—delivery of substitute goods (Art. 46(2)) 283
—mitigation (Art. 77) 416
—repair (Art. 46(3)) 284
—preservation of goods (Arts.85, 86, 88) 193, 45–457
restrictions under rules of forum 191–199, 281
proper law of contract, applicability 195
seller’s action to recover the price
—general rule favoring 347
—limitations under Convention 191–199, 348–349, 416
—remedy limited at common law, SGA (U.K.) and UCC (U.S.A.) 346
—when seller holds goods, equivalent to compelling (specific) performance 345–347

Computer transactions 56.4. Decisions: Computer software 56.3

Conditionssee: Avoidance of contract, Conformity of goods

Confirmation of agreementssee: Acceptance of offer. Decisions: 160
letters "confirming" agreements, domestic law 166 n.3
—impact of CISG 160 at n.4

Conflict of Lawssee: Private International Law

Conformity of goodssee: Disclaimer of warranties, Examination of goods, Notice of non-conformity
buyer’s knowledge of condition 229
contractual understandings 224
—representations as contractual 224 n.6
contract disclaimers 230–237
determined as of risk passage 241–243
"different" goods (aliud concept) 256.1
domestic rules 224, 225, 226, 227
—civil law "guarantee" and ULIS délivrance 210
fitness for purpose. Decisions: 226
implied obligations 225–228
—description; ordinary purpose 225
—fitness for particular purpose 226
—packaging 228
—sample or model 227
—statutory norms, role of 222
"mistake" as to quality, domestic rules on, relation to Convention 238, 240
Standards. Decisions: 225

"Consideration," common law rulessee: Modification of contract, Revocation of offer. In general 204.1–204.4

Contractsee: Ambiguous contracts, Disclaimers of warranties, Formation of offer, Modification of contract, Rejection of offer, Acceptance of offer, Avoidance of contract
agreements to apply Convention 78–84
relationship to Convention 1, 74–81
—exclusion or modification by contract 75–76
—primacy of contract 2, 19, 24, 61, 74, 207, 222
severability 60.2
time when concluded 178
unitary approach of Convention 24
—negligence irrelevant 276, 427

Contracting State
contact with international sale 44-47
—both parties in Contracting States 45
—private international law 46
States listed with reservations, go to Table of Contracting States

Convention (1980)see: Depositary of Convention, Drafting of Convention, Final Provisions (Part IV), Interpretation of Convention, Overview, Reservations and other specific topics
adaptability to new circumstances 18–21, 34
—general principles; analogical application 21, 96–102
—good faith 20, 94–95
—international case-law and scholarship 34, 92
—practices and usages 19, 112–122
agreements to apply 78–84
amendment 34, 462–463

decisions based on factual examples 33
declarations (reservations) 467–472
entry into force (Art. 99) 472
—States that have adopted, go to Table of Contracting States
effective date as to offers and contracts 473
full text of Convention, go to Text of the Convention
history 3–10
interpretation 16–21, 34, 85–103. See specific topics
legislative history 4–10
model for domestic law reform 14
omission of "awesome relics" 30–33
primacy of contract, as dominant theme 2, 19, 24, 61, 74, 207, 222
—aided by exclusion of consumer purchases 74
refining process of international collaboration 33
sphere of application 12–15, 35–73. See specific topics
States parties to Convention; reservations, 467, go to Table of Contracting States.

Copyrightsee: Third-party claims

Corporate stock or bondssee: Shares and securities

"Could not have been unaware"see: Knowledge

Counter-trade and barter56.1 see: Scope of Convention

Course of dealingsee: Practices of parties

Cure of non-conformity in documents 220

Cure of non-conformity in goods. Decisions: 184
after date for delivery 292–296. Decisions: 296, 313
before date for delivery 244–247
—cure within period for delivery 245
relation to avoidance 184, 246–247, 296
requests for clarification 297–300
—failure to receive notice 300
—failure to respond to proposal to cure 298
—proposal to repair 298
—proposal to deliver 299
imperfect "cure" 247
third-party claims 245.1

Cure by solving third-party claim 245.1

Customsee: Usage of Trade

Damage to goodssee: Risk of Loss

Damages 403–419—see: Mitigation of damages; Exemption (force majeure)
general rule 403–405
consequential damages, forseeability 406. Decisions: 408
—domestic law, Hadley v. Baxendale 407
interest 420–422
—rate 421
—when recoverable 422
measurement, when contract avoided 409–415
—current price; time and place for measurement 411–413. Decision: 413
—election between alternatives 414
—substitute transaction (repurchase, resale) 410. Decisions: 410.1
——identifying substitute transaction 410.1
—time and place 412–413
mitigation 416–419. Decision: 418
negligence or due care irrelevant 276, 427
price reduction for non-conformity 309–313. Decisions: 313
—important when seller exempt from "damages" 311
—measurement, compared with "damages" 312
profit, loss of 404, 415. Decisions: 415

Death or personal injury—claims for, excluded 71

Decisions, Judicial and Arbitralsee: Case-law under Convention

Declarationssee: Reservations by Contracting States; go to Table of Contracting States

Definitenesssee: Unstated price. Decisions: 137.9, 325.3
—designation of goods and quantity 137
—price 137.4–137.7
—requirements and out-put 137.3
—specifications 137.2

Delivery of goods and documents 207–220—see: Price
contractual duty distinct from risk of loss 208, 209 (n.5), 210
documents 217–220
early or excess delivery 318–319
export licenses and taxes 211
inspection 339.1
partial delivery or non-conformity, avoidance 314–317
payment a condition of 333–336
—commercial arrangements for delivery and payment 331.1, 336, 339–339.2
place 207–209. Decisions: 209
shipping arrangements 212–215, 331.1
—identification of shipment 213
taking delivery, duty of buyer 341–343
time 216
—choice by seller within agreed period 216
ULIS and délivrance 210
—replaced by contractual approach 210

Diplomatic Conference (1930)see specific topics
Drafting Committee 10
—members 10 (n.14)
overview 10
Plenary 10
representation, states and international organizations 10 n.12
roll-call vote 10
significant changes by 10 n.3

Disclaimers of warrantiessee: Conformity of goods
standard contracts and terms, domestic controls 236

Dispatch of communications 188–190—see: Receipt of communications

Documents covering goods 217–220—see: Price, Risk of loss
cure of non-conformity 220
delivery 219
—commercial practice 217
documents controlling disposal, effect on risk of loss 370

Domestic lawsee: Compelling (specific) performance, Private International Law, Rights of third parties under domestic law, Uniform Interpretation, Validity
agency (authority of representative) 66
confirmation letters, effect of silence 160
Convention’s rules as premise 70, 390, 444
effect of contract on property 70
enforcing and collecting judgments 192
excluded by use of general principles 96–98
fraud 65
interest, rate of 421
labels of domestic law not controlling 65, 71–73, 146, 238–240, 266
maritime law and supplies for ships 54
misrepresentation of quality 238–240
mistake as to quality of goods 239–240
"nullity", displacing Convention’s remedies 266.1
product liability 73
"property" damage v. "economic" loss 73
reliance on offer (culpa in contrahendo) 145–151, 145 n.19
restrictions on specific performance 191–199, 281, 348
severability of contract 60.2
unconscionable contracts 235
validity 64–69

Drafting of Conventionsee: Interpretation of Convention
avoidance of local legal idioms 87
decisions based on factual examples 33
defining contract terms 143.2
preparation by UNCITRAL 5-9
reference to physical events 87

Election of remedies 277, 443, 449

Electronic data exchange (EDI)
contract formation 130, 132.1

Electricity
purchases excluded 55

Effective date of Convention (Art. 100) 473
listing for Contracting States, go to Table of Contracting States

Erection of building
excluded 56

Enterprise, sale of 56.5

Erreursee: Conformity of goods, Mistake

Examination of goodssee: Notice of non-conformity
inspection prior to payment 338–339
—agreement to pay before arrival 339
—documentary exchange 337
—independent inspection, when payment due before shipment 338 (n.8)
—remedy when seller refuses inspection 339
practicability, effect on time 252
time for examination after receipt 251–252. Decisions: 252
—redispatch 251
—starts time for notification 249
ULIS, revision of 250

Exchange controlssee: Price

Exchanges of goods (barter) 56.1. see Scope of Convention

Exclusions from Convention 49–56, 64–73
auction sales 51
buyer supplies materials 59. Decision: 59
—substantiality measured by value 59
checks, notes and other money paper 53
construction of building 56
contract excluding 75–76
—implication from PIL 77
death and personal injury 71–73
electricity 55
execution sales; sales by authority of law 52
money 53
personal use, purchases for 50
property in goods, effect on 70
—seller’s obligation to provide good title, distinguished 70, 262–266
services predominant 60. Decision: 59
shares and securities 53
ships and aircraft 54
—small pleasure craft 54
validity 64–69

Execution sales (sales by sheriff or other court officer)
excluded 52

Exemption (force majeure) 423–435
avoidance remedy preserved 435.4
defective goods 423.3, 427
—legislative history 427 (n.8–10)
domestic law 425
comparative law: uses and hazards 429
economic difficulties 432.2. Decisions: 432.2
impediments preventing performance 423
—caused by other party 436–436.4. Decision: 436.4
loss in transit 423.2
modern contract practices as guide 430–432
—examples of exemption clauses 431
part of performance 435.2
requiring (specific) performance 435.5
standard for exemption 428, 432.1
temporary impediment 435.1
—avoidance available if breach fundamental 435.4
third-party contractor, default by 433
—general supplier 434. Decisions: 434

Export licenses and taxes 211
Incoterms (1990), compared 211

Federal States
reservation to apply to part of State (Art. 93) 468

Final provisions (Part IV, Arts. 89–101) 458–474
reservations by Contracting States, go to Table of Contracting States

Formation of contractsee: Offer, Acceptance of offer, Electronic data exchange (EDI), Rejection of offer, Revocation of acceptance, Revocation of offer
exclusion of Part II by reservation 467
generally 22, 131–179
offer and acceptance, limited scope of rules governing 132.1, 170
summary 132
validity of open-price agreements 137.4

Forumsee: Jurisdiction for suit

Franchise agreements56.2, see: Scope of Convention

Fraud and Unfair CompetitionDecisions: 65
remedies for under domestic law unimpaired 65

Framework and franchise agreements 56.2see: Scope of Convention

Frustrationsee: Exemption (force majeure)

Fundamental breachsee: Avoidance of contract. Decisions: 186, 304
consequences subsequent to contract, foreseeability 183
cure, effect of 184, 246–247
definition 181–186
domestic concept, a "false friend" 181.1
refund or price adjustment, effect on 185
repair or replacement, effect on 184
ULIS 182
use of in Convention (Arts. 46(2), 49(1)(a), 51(2), 64(1)(a)), 72, 73, 283, 304, 314, 354, 396, 401

"Gaps" in Conventionsee: Interpretation of Convention
boldness v. restraint in filling gaps 102. Decisions: 99–102.
—framework of discipline; analogies from specific provisions 102
domestic law 97
—contrast between civil law and common law 97
general principles of Convention 96–102
—examples 99–101, 150, 156 (n.5), 177, 245.1, 248, 323, 342 (n.2), 436.4
—inapplicable to areas excluded from Convention 98
approach in ULIS 96
wrongful revocation of offer aborts contract 148–150

General principles of Conventionsee: "Gaps" in Convention. Decisions: 99–102

Good faithsee: Reasonableness. Decisions: 95
general requirements in domestic law 94
use in interpreting Convention 94–95
—examples 95,100, 144, 285, 291, 416
—commercial practice and reasonableness 95
—speculation at other party’s expense 95, 144, 175, 285

Goodssee: Conformity of goods, Exclusions from Convention, Plant and equipment, Scope of Convention. Decision: 54 (Aircraft engine)
computer software 56.4
extraction of ores or oil, timbering 56
generally 53, 56–56.3
"turn-key" contracts 60.3

Government contractssee: Procurement contracts, Written form

Grace period, tribunal may not grant 278

Hague Conventions (ULIS and ULF 1964)see specific topics
development of 4
prospects for adoption 9
remedial system unified by UNCITRAL 26

Holidays and time-limits (Art. 20(2)) 171

Identification of goodssee: Delivery of goods and documents, Risk of loss undivided shares, fungible goods 56.3, 371

Impossibilitysee: Exemption (force majeure)

Incorporationsee: International sale
place of irrelevant 48

Incoterms (1990)see: Standard contracts
delivery, place for 208
documentary exchange 217, 336
effectiveness as usage 114
—rejection of special rule for trade terms 118 and n.5
export licenses and taxes 211
reference to does not exclude Convention 76
relation to Convention’s rules on risk during carriage 367
time for delivery, choice within agreed period 216
transport by seller 368
use in interpreting contract 109, 115

Insecuritysee: Suspension of performance

Inspectionsee: Examination of goods

Instalment deliveriessee: Avoidance of contract

refusal to accept (avoidance) 399–402. Decisions: 401
—defective instalment 400
—future instalments 401
—return of past deliveries 402

Insurance
duty to supply information 215
commercial practices and risk of loss 367, 375
indicating agreement on risk in sales during transit 372
risk at seller’s place of business 375

Intellectual propertysee: Third-party claims

Intent of party. Decisions: 107, 107.1

Interest 420–422—see: Decisions: 422
avoidance of contract, interest on sums received 451.2
legislative history 420
on sums in arrears 422
—damages clearly established 422 (n.10)
rate for: analogy to damages 421

International salesee: Scope of Convention, "Place of business"
basic rule, parties in different States 12, 39–40
—contrast with Geneva Conventions (1930, 1931) 13
multiple places of business 42
place of business, temporary sojourn 43
undisclosed principal 41

Internet

Interpretation of contract 104–111
harsh, unanticipated applications 67
mistakes and misapprehensions; the "Peerless" problem 108
—responsibility for ambiguity on speaker 107.1, 108
practices established by parties (course of dealing) 112–114
protective legislation and rules of interpretation (CISG Art. 8) 107.1, 232–237
statements of parties, rules for interpretation 104–111
statutory definitions of contract terms 118, 143.2
"parol" evidence 110
subjective and objective views of meaning 106
subsequent conduct 111
texture of contract as to degree of detail and negotiation 105, 107.1
trade usage 112–122
—qualifying contract provisions 121

Interpretation of Convention 85–103—see: Domestic law, Drafting of Convention, "Gaps" in Convention, Knowledge, Legislative history, Time for action
"are considered," meaning of 169 n.6
extension by analogy 60.4, 245.1
flexibility, resources for 18–21, 34, 74, 112
—strict interpretation of scope 60.5
—texture of rules 103.1, 103.2
gap-filling
—by general principles 21, 96–102
—by domestic law 96
good faith, promotion of 20, 94–95
institutional support 93
international case-law, 34, 92–93
—collection and dissemination of 93
legislative history (travaux préparatoires) 88
Preamble to the Convention 475
purposive (teleological) approach 103.2 n.45
"reflected light" from other provisions 43, 53, 56, 124, 169 (n.6), 252
scholarly writing 92
uniformity, promotion of 86–93, 96–98, 146
—examples 54, 71–73, 137, 238–240, 421
Vienna Convention on Treaties, applicability 103

Jurisdiction for suit
not governed by Convention 332. Decision: 332

Knowledge
alternative expressions in CISG 229 n.16
"could not have been unaware" 222, 229, 260, 270
"ought to have known" 229

Legislative history
English law and the Fothergill case 90
use in interpretation 88–91; Decisions: 88–91
guide to research in 88
standards for use 91

Letter of creditsee: Price
failure to establish, remedies for 323

Limitation Period for legal proceedings; 1974 Convention 10 n.15, 254.2, 258, 261.1

Mandatory rules (ordre public)—see: Validity
difficulty of defining 50, 79
limited scope of 2, 79
—possible because of exclusion of consumer purchases 50, 71

Manufacturer: see: Remote supplier, Scope of Convention. Decision: 63

Mistakesee: Acceptance of offer, Conformity of goods, Domestic law
"mistake" as to quality of goods 238–240

Mitigation of damages 416–419
consequential damages 418
domestic rules, and causation principle 417
general principle of Convention 101
goods purchased for resale 419.1
prevented by failure to notify 261
price recovery 419.3
repudiation prior to production 419–419.3
transport after repudiation 418
Vienna Conference: a failed proposal 419.3
wasteful production 418

Modification of contract. Decisions: 204
agreement requiring writing 202–204
—conduct relying on oral modification 204

Nachfristsee: Avoidance of contract, Notice fixing final period
Decisions: 289, 305

Nationality
irrelevant 48

Notice fixing final period (Nachfrist)—see: Avoidance of contract
analogies in domestic law 290 (n.8)
buyer’s notice to seller, as basis for avoidance 287–291, 305
—content of notice, warning of consequences 289
—restricted to non-delivery 288. Decisions: 289, 305
——applicability to duty to replace or repair 288
final period must be reasonable 289
—aggrieved party has lee-way in fixing 289
obligation to accept invited performance 291, 352
overview 27
seller’s notice to buyer as basis for avoidance 350–352, 354
—non-payment 351
—failure to take delivery after payment 354, 356
——hazards of avoidance 356

Notice of avoidance—required 187see: Avoidance of contract

Notice of non-conformitysee: Examination of goods, Remedies for seller’s breach, Third-party claims
defect in documents 256
failure to give notice, effect of 259
—excuse 261. Decision: 261
knowledge of seller. Decision: 260
limitations of actions distinguished 254.2
seller’s knowledge 260, 271, 308.1
seller’s need for notice, commercial considerations 255
specificity. Decisions: 256
third-party claim 271
time for notice
—reasonable time 257; excessive delay, Decisions: 257
two-year limit for notice 258
—contractual guarantee 258

—excuse 260, 261
—start of period, actual "handing over" 258

Offersee: Definiteness, Revocation of offer, Rejection of offer, Unstated price
criteria 134
definiteness, unstated price 137
time when effective 138
to public or group 135
—catalogues addressed to specific persons 136
—commercial hazards of public offers 135
withdrawal 138

Open price contractssee: Unstated price

Other conventions, relation of CISG to (Art. 90)
declarations concerning Appendix B
Hague 1955 and 1986 P.I.L. Conventions 464.3, 464.4

Overview of Convention

Packagingsee: Conformity of goods

Parol evidence rule 110

Patentssee: Third-party claims

Periodicalsabbreviations

Personal or household usesee: Exclusions from Convention. Decision: 50
purchases for, excluded 50
—contract provisions to clarify applicability 50

"Place of business" 123–25—see: International sale. Decisions: 43
choice among multiple places 42, 123
—contract-making and performance, relative weight 43, 124
—implications from other provisions 43
"piercing the corporate veil" 42
transitory agents 43, 124

Plant and equipment—applicability of CISG 60.3

Practices of parties 112–122
as part of contract 114, 116
modifying rules of Convention 122

Preamblesee: Interpretation of Convention: 475

Prescriptionsee: Limitation period

Preservation of goods 453–457
avoidance of waste and loss 453
—duty based on relation to goods 453
—realistic response to legal uncertainty 453
buyer’s duty 455. Decision: 455
—no duty when goods not received, or available only on payment 455
impracticality and hazards of extended custody 454
overview and summary 29, 453
seller’s duty 454. Decision:457
types of preservation
—deposit in warehouse 456
—sale 457

Pricesee: Compelling performance, Damages, Speculation after market change, Unstated price
documentary exchange
—commercial practice and standard contracts 217, 331.1
—risk of loss 370
letter of credit and other enabling steps 323, 331.1. Decisions: 323, 356.1
—failure to take steps as breach; suspension or avoidance 323. Decisions: 388, 397
net weight 328
payment due without request (mise en demeure) 340
—domestic formalities and other remedies 340
place for payment 329–332. Decisions: 331
—jurisdiction for suit, not determined by 332
—seller may require before shipment 337
—significance, exchange controls 331
—standard contracts 331 (n.4)
reduction of 309–313
time for payment 333–339, 340. Decision: 335
—at delivery 333–335
—carriage and documentary exchanges 336–337
—examination of goods 338–339

Price reduction 309–313—see: Damages. Decisions: 313

availability beyond non-conformity of goods 313.1
election of remedies 312

Private international lawsee: Domestic law
applicable to problems beyond Convention’s scope 96
excluded by general principles of Convention 96–98
—both parties in Contracting States (Art. 1(1)(a)) 45
formal requirements (statute of frauds) 126
—effect of reservation preserving domestic rules 129, 471
general exclusion by ULIS 15, 96
Hague PIL Conventions (1955, 1986) , 77
implied exclusion by contract based on PIL 77
one or both parties not in Contracting State (Art. 1(1)(b)) 46
—reservation excluding Art. 1(1)(b) 47, 470
——effect of different options 47.4–47.5
reservations under Arts. 92, 93 and 94 46.1

Privitysee: Remote supplier, Supplier participates in sale

Procurement contracts
governmental formal requirements (re Art. 11) 127.1

Product liability
arising from contract 73
death or personal injury 71–72
UNCITRAL studies 73

Property
effect of contract on third-party interests, excluded 70
irrelevant as to risk of loss 358–383
seller’s obligation as to third-party claims 262–266

Reasonablenesssee: Interpretation of Convention
references to in CISG, listed, 95 n.28
standard for "good faith" 95

Receipt of communicationssee: Communication with other party
"dispatch" as general rule (Art. 27) 188–190
exceptions from "dispatch" rule 190, 287, 300, 350, 357, 423
—delivery to place of business (Art. 24) 179

Rejection of goodssee: Avoidance of contract

Rejection of offersee: Acceptance of offer
"acceptance" with modifications 155, 165–170
rejection bars later acceptance of firm offer 152–155
rejection overtaking acceptance 156

Remedies for buyer’s breachsee: Avoidance of contract, Compelling performance, Damages, Fundamental breach, Notice fixing final period, Suspension of performance
domestic formalities (demands) 340
generally 344–357
specifications for goods, seller may supply 357

Remedies for seller’s breachsee: Avoidance of contract, Compelling performance Cure of non-conformity, Damages, Fundamental breach, Notice fixing final period, Suspension of performance
domestic formalities (demands) 340
generally 272–320
premature delivery, excessive quantity 318–320
non-conforming part 314–316
reduction of price, 309–313
summary of buyer’s remedies 272–273, 275–278
—cumulation or "election" of remedies 277
tribunal may not grant "grace period" 278
unified system, contrast with ULIS 26

Remote suppliersee: Scope of Convention
as participant in sale 63
domestic product liability and 71

Repairsee: Cure of non-conformity. Decision: 313

Representationsee: Agency

Representations (statements) by party
reliance on, as general principle 99

Requiring (specific) performancesee: Compelling performance

Rescissionsee: Avoidance of contract

Reservations by Contracting States
applicability of Convention based on private international law (Art. 1(1)(b)) 47
—effect of different options 47.4
exclusion of formation (Part II) or sales law (Part III) 131
generally 459
reservations under Arts.92–94 and Art.1(1)(b) 46.1
table of reservations by Parties to CISG, go to Table of Contracting States
contracts with non-reserving States. Decision: 131

Restitutionsee: Avoidance of contract
circumstances requiring restitution 444, 451.1 (Art. 84)
return of goods or payment, on avoidance 444. Decision: 419.2
—benefits from goods used or sold 451.3
—contractual arrangements and domestic law 444.1
—cross claim by party in breach 452
—goods not in same condition 445–448
—goods used or resold, accounting for benefits 451.3
—interest on sums received 451.2
—recapture from buyer on failure to pay 444

Revocation of acceptancesee: Avoidance of contract

Revocation of offer
barred by acceptance 140
liability in tort for wrongful revocation 145–151
—acceptance impractical 148–151
promise not to revoke 142
—binding in absence of "consideration" 140
—domestic rules, generally 142 (n.4)
—implied promise (fixed time for acceptance) 143–143.1
—Uniform Commercial Code and "firm offers" 142
reliance on offer 144

Rights of third parties under domestic lawsee: Third-party claims, Interpretation of Convention
rights of seller or buyer under Convention as premise 70, 390, 444

Risk of Losssee: Preservation of goods
breach of contract by seller 379–383
—casualty after receipt by buyer 383
—fundamental breach and transit risk 369.4, 380–381
——damage recovery 382
——partial avoidance 381.1
——requiring substitute goods 382.1
commercial practices; insurance 367, 372, 375
generally 358–383
identification of goods 363, 371, 373, 378
—of shipment 213
——notice to buyer 371
—undivided shares 371.1
overview and summary 28, 358
relation to conformity of goods 241–243, 360–361
—contractual guarantee 243
sale during transit 372
—compromise at Vienna 372.1
—intent of parties based on insurance 372.2
—seller’s knowledge of damage 372.2
——further damage, causal connection 372.2
seller’s act or omission after risk has passed 362. Decision: 362
seller’s place of business 374
—commercial practice; insurance 375
—delivery at (e.g.) warehouse 377
subsequent to buyer’s receipt 383
transit risk 363–371. Decisions: 368.1
—commercial practice: Incoterms (1990) 367
—delivery to carrier v. "on board" 368.1
—hi-tech goods 368.2
—relation to Hamburg Rules (1978) 208 (n.4)
—successive carriers; transshipment 369.2–369.3
—use of seller’s transport 369.1

Sale of Business—Excluded. Decision: 56.5

Sale of Goodssee specific topics
Part III of Convention, generally 180–457
—summaries 23–29, 180, 205, 221, 272–274, 321, 358–359, 384, 437–438, 453

Sample or modelsee: Conformity of goods

Scope of Conventionsee: International sale, Contracting State, Domestic law, Erection of building, Exclusions, Goods, Private International Law, Remote supplier and other specific topics
agreements to apply 78–84
—designation of specific State 82
both parties in Contracting States (Art. 1(1)(a)) 45–45.2, 47.3
—background: ULIS (1964) 45.1
exclusion by agreement 75–76
—reference to standard trade terms or standard contract 76
extension by analogy 60.4
generally 35–81
—summary 37
goods, restricted to moveable objects 53, 56
—exchanges, barter 56.1
—framework agreements, franchises 56.2
—undivided shares 56.3
interpretation to achieve certainty 60.5
sale of enterprise 56.5

Servicessee: Exclusions from Convention
contracts for, excluded 60
—services subsidiary to sale 60
—severability 60.2

Shares and securities, excluded 53. Decision: 53

Ship purchases, excluded 54

Specific performancesee: Compelling performance

Specifications for goodssee: Definiteness
supplied by seller when buyer fails 357

Speculation after market changesee: Compelling performance, Good faith at expense of other party
—delay in exercising remedies 95, 144, 175, 187, 193, 285, 416
—ULIS and ipso facto avoidance 187

Standard contractssee: Incoterms (1990). Decisions: 116
documentary exchanges 218
exemption clauses 431
place for payment 331 (n.4)
use in construing Convention 430–432
—testing general principles 102

Statements of partiessee: Interpretation of contract

Statute of Fraudssee: Written form

Stoppage in transitsee: Suspension of performance

Supplier participates in salesee: Remote supplier

Suspension of performance 385–394
facts existing but unknown at contract 388
domestic rules 389
legislative history and compromise solution 388
threat of failure of counter-performance 387
—effect of failure to provide assurance 394
—failure to establish letter of credit 323
—removed by adequate assurance 391–392
time for performance, extension because of suspension 393
transit, stoppage during 390
—location of risk or title irrelevant 390
—third parties unaffected 390 (n.11)

Telegram and telex —as "writing" 130

Third-party claimssee: Rights of third parties. Decision: 262
cure by removing claim 245.1
defense by seller 270.1
knowledge of, by buyer 271
notice to seller 271
—reasonable time 271
"nullity" under domestic law 266.1
—invalid claims 264–266
patents and other intellectual property, Decision: 270
—multi-state settings 267
—recognition of foreign patents 267
—responsibility of seller for 269–270
reimbursement for cost of defense against 266 (n.8)

Time for action, standards under CISG
"if time allows" 398
"immediate" 385
"reasonable" 257
—list of articles using 252
short a period as practicable 252

Trade termssee: Incoterms (1990)
reference to does not exclude Convention 76
usage (Art. 9) standards 118

Trade markssee: Third-party claims

Trade usagesee: Usage of trade

Transmission of communications; delays and non-deliverysee: Communications with other party
acceptance 162
avoidance 187.2
general rule and exceptions 187–187.2

Travaux préparatoiressee: Legislative history

Turn-key contractssee: Goods, Plant and equipment

ULIS and ULFsee: Hague Conventions (1964)

UNCITRALsee: Yearbook, Working Group on Sales
decisions based on concrete examples 33
institutional support for development of Convention 94
preparation of Draft Convention 9
Secretariat 8
structure, working methods 5-7

UNILEX
publication of international trade law

Uniform interpretation 17, 54, 73, 86–93, 137, 204.4, 238–240, 421; see also Interpretation of Convention

Unstated price 137–137.7, 324–327; see: Decisions: 137.4–137.8, 325.3
agreement to contract with unstated price, as derogation from Convention 137 (n.10)
legislative history and compromise solution 137
presumption against intent to contract 326
—overcome by shipment, receipt of goods or other reliance 32
price supplied by Convention 327
—price generally charged 327
validity under Convention and domestic law 137.4–137.7, 325.2–325.3

Usage of trade 19, 112–122. Decisions: 120.1, 121
as part of contract 114, 121
basis for testing proposed general principles 102
distinguished from customary law 118
domestic law 120
modifying rules of Convention 122
trade terms as usage 118

Validitysee: Domestic law, Written form
open-price contracts 137.4–137.7, 325.2–325.3
remitted to domestic law 64–69
restrictions on warranty disclaimers as 107.1, 232–237
rules of the Convention and inconsistent domestic rules 65, 203, 204.2, 234, 266.1

Vienna Convention on the Law of Treaties
use in construing Sales Convention 90, 103

Warrantysee: Conformity of goods

Written form; Reservations. Decisions: 129
contract requiring writing for modification 127, 200–204. Decisions: 187.2
domestic rules superseded 126–127
government procurement requirements 127.1
private international law 126
reservation preserving domestic law 128–129, 471
—applicability depends on private international law 129
—list of States making reservation, go to Table of Contracting States
telegram and telex 130


Pace Law School Institute of International Commercial Law - Last updated February 18, 2005

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