Published by Manz, Vienna: 1986. Reproduced with their permission.

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E. Form [Article 13]

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Compliance with writing requirements, especially for contract modifications which often necessitate quick decision, as in construction contracts, was made easier by the acceptance of the Federal Republic of Germany's proposal [143] that a "writing" include communication by telegram or telex (Article 13). This does not mean merely that the Article 96 reservation in connection with Article 12 permits the use of telegram or telex when that use is permitted by domestic law; it means rather that domestic form requirements are always satisfied by the use of telegrams and telexes.[144] The German proposal was not meant only as a definition of the term "writing" as used in Articles 21(2) and 29(2), although the formulation of Article 13 might lead to that conclusion. Article 13 was meant to achieve a uniform objective standard for form requirements, so that parties need not comply with domestic form requirements which perhaps impose higher standards and about which it may be difficult to obtain information.[145] However, because of the awkward wording of Article 13, this interpretation is open to to criticism.[page 46]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

143. A/Conf. 97/C.1/L.17 (= O.R. 83).

144. See A/Conf. 97/8 at 7 (position of the government of the F.R.G.). Accord Stoffel in Lausanner Kolloquium at 60. Honnold's interpretation would make Article 13 almost meaningless. See Honnold, Commentary § 130; infra, note 145. Eörsi believes that Article 13 does not require comment. See Eörsi, General Provisions at 2-34.

145. The motion to allow the telegram or telex to fulfill the writing requirement was probably accepted in Vienna without further debate because it was drafted on the model of a provision with the same wording in the UNCITRAL Convention on the Limitation Period of 1974 (Article 1(3)(g)). The Convention on the Limitation Period itself contains requirements on form, for example, in Article 20(1) (the interruption of the limitations period by a written acknowledgment) so that the provision on written form contained in the Limitations Convention only had an internal effect. CISG itself only mentions "writing" in two provisions and only requires it in Article 29(2) for modifications. The representatives from the Soviet Union agreed to the West German motion presumably because, according to an applicable Soviet law which makes a writing mandatory for foreign trade transactions, telegrams and telexes fulfill the requirement. See A/Conf. 97/C.1/SR.7 at 10 § 73 (= O.R. 269).

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