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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 13
Definition of ‘Writing’

97. CISG Article 21(2), concerning late acceptance, and Article 29(2), concerning contract modification, both make use of the term 'writing'.[1] Article 13 defines this term as follows:

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

1. See infra Nos. 128 and 146.

98. According to Article 13, the term writing 'includes' telegram and telex. On the other hand, Article 13 does not define the term to exclude such increasingly popular means of communication as telefax transmissions or electronic data [page 60] exchange; these should also be treated as 'writings' under Article 13.[1] This 'matter' - though not expressly settled in the Convention - is arguably 'governed' by it, and an expansive reading of the term writing to include more modern, yet clearly analogous; means of communication might arguably be said conform with the 'general principle' on which the Convention (at least Article 13) is based.[2] It may be noted in this connection that Articles 21(2) and 29(2) do not require that a writing be signed.

1. Honnold J., op. cit. (1999) at 141 [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>].
2. Regarding Article 7(2) and decision-making by analogy, see supra No. 79. Compare Oberster Gerichtshof, 2 July 1993 (l Ob 525-93), reported in UNILEX, rejecting the argument that a telefax used to declare avoidance of a domestic leasing contract should be considered valid by analogy to CISG Article 13.
[page 61]


Pace Law School Institute of International Commercial Law - Last updated April 4, 2005
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