Cite as Rajski, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 128-131. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision
For the purposes of this Convention «writing» includes telegram and telex.
1. History of the provision.
1.1. - Article 13 determines the scope of «writing» for the purposes of the Convention (of considerable importance in the application of Article 12 and 29(2)). It has no antecedent in either ULIS or ULFC. A similar provision may be found, however, in Article 1(3) of the 1974 Limitation Convention which provided that. «"writing" includes telegram and telex». The UNCITRAL Draft Convention had no such provision. At the Vienna Conference the delegation of the Federal Republic of Germany urged that the Convention have an express definition of «writing» that included telegrams and telexes. The Conference accepted the proposal in order to dispel any doubts (Official Records, II, 269).
2. Meaning and purpose of the provision.
2.1. - The notion of «writing» underwent an evolution in the law of different States, brought about by controversies in the doctrine and in judicial practice. Traditionally, «writing» was a narrow concept limited to the literal meaning of the word. International commercial practice, influenced by the development of modern means of communication, favoured a wide approach. The wider approach has found increasing acceptance both in international legislation and in the law of various states, supported by the doctrine as well as arbitral and judicial practice. For example, the Czechoslovakian International Trade Code of 1963 states that «notifications sent by telegram or telex ... are considered to [page 128] be made in written form» (Article 24(3)). Similarly, § 11(2) of the 1976 Democratic Republic of Germany Law on International Commercial Contracts provides that «the requirement of written form is satisfied if the person making the declaration communicated its content in a way enabling the recipient to reproduce it». The 1978 Yugoslav Code of Obligations also states that «the requirement of written form is satisfied if the parties communicate ... by telex or by other means, which enable to establish beyond any doubt the content of the declaration and its author» (Article 72(4)).
An analogous trend is also visible in international legislation on international sales contracts. For example, § 2(1) of the General Conditions of Delivery of Goods between the Enterprises of the Member States of the Council for Mutual Economic Assistance of 1968/1975 (text of 1979) expressly states that «under the written form shall be also understood declarations made by telegram or telex». A similar provision may be found also in the 1974 Limitation Convention (see § 1.1., supra).
In actual international commercial intercourse, telegrams and telexes have been gradually accepted on equal footing with traditional writing. They are considered speedy and effective means for declaring and communicating the parties' will in order to secure certainty of delivery and to create an evidentiary record. They are particularly important for contractual modifications which demand prompt decisions.
A writing requirement is easier to observe if both telegrams and telexes can satisfy it. The latter would hardly fall into the category of writing in the strict (i.e., literal) sense of the term, necessitating a wide interpretation. Some difficulties in this respect might arise as far as the law of certain States is concerned. To avoid these difficulties as well as any doubt or uncertainty that might result from the literal construction of Article 11, it was decided at the Vienna Conference to establish a broad meaning of the term of writing in Article 13.
2.2. - The solution adopted in Article 13 appears therefore to be in accordance with the evolution of modern law of many legal systems and with contemporary international commercial practice. It satisfies criteria of both convenience and reason. Telegrams and telexes establish language and permit identification [page 129] of a declaration's author -- the two main functions of writing. They are, however, weaker evidence than the traditional form of writing.
3. Problems concerning the provision.
3.1. - Article 13 determines the notion of writing «for the purposes» of the Convention. It applies to writing requirements provided for by the Convention (e.g. Article 26 § 2) or stipulated by the parties.
It may be applied also to writing requirements provided for by the provisions of domestic law exceptionally applied according to relevant conflict-of-law rules (see commentary to Article 12(2), § 2, supra). Such extended application of Article 13 may be justified by its broad wording (this would concern the domestic law exceptionally admitted to be applied in the regulation of the Convention and therefore recognized as being made for the purposes of the Convention) and by the need to promote uniformity of the law of international sales. It is, after all, in accordance both with the evolution of modern law in that domain and with contemporary international commercial practice.
A general uniform rule of (substantive) law on requirements as to the form «vereinheitlichte Sachnorm für Formerfordernisse» (see SCHLECHTRIEM, UN-Kaufrecht, 32; Uniform Sales Law, 34) cannot be, however, drawn from this regulation.
Obviously, Article 13 cannot eliminate some special requirements as to the form imposed by applicable domestic law such as authentication by a consulate or certification by a public authority, document under seal, etc. (see ENDERLEIN-MASKOW-STARGARDT, Kommentar, 59).
3.2. - Another problem having practical importance concerns the identification of the author of the declarations particularly in communication by telex. For this reason, some UN Economic Commission for Europe's conditions for sales prescribe that the appropriate seller's and buyer's declarations which form the contract, if communicated by telex, have to be immediately confirmed by registered letter (see, e.g., Articles 2.1. and 2.2. of the following Economic Commission for Europe General Conditions: [page 130] For Export and Import of Sawn Softwood No. 410; For the Export and Import of Hardwood Logs and Sawn Hardwood From the Temperate Zone, No. 420).
The parties to the contract may always make similar stipulations in order to overcome the above indicated difficulties. [page 131]