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Interpretation of "writing": Comparison between provisions of CISG (Article 13)
and counterpart provisions of the Principles of European Contract Law

Ulrich G. Schroeter [*]
July 2002

1. Introduction
2. Requirement of a "writing" or "written" statements in the CISG and PECL
3. Use of Article 1:301(6) PECL in interpreting Article 13 CISG
4. Modern means of communication under the CISG and PECL
    4.1 Telefax
    4.2 Electronic Data Interchange (EDI)
    4.3 Electronic Mail (e-mail)
    4.4 Internet and World Wide Web
5. Conclusion

1. Introduction

Article 13 CISG and its counterpart in Article 1:301(6) PECL both provide definitions of similar, albeit not identical terms: While Article 13 CISG deals with the term "writing", Article 1:301(6) PECL addresses "written" statements.

The systematic position of the two provisions in the respective texts makes clear that both are only concerned with formal aspects of the terms "writing" and "written."[1] Article 13 CISG and Article 1:301(6) PECL neither expressly nor implicitly deal with other questions of interpretation of declarations, statements and communications by the parties [2] (these are subject to Article 8 CISG and Articles 5:101 PECL et seq.), nor do they address the question if a written declaration was or must have been comprehensible to the recipient (which is to be resolved according to Articles 8 and 24 CISG).[3] [page 267]

2. Requirement of a "writing" or "written" statements in the CISG and the PECL

Both Article 1:301(6) PECL and Article 13 CISG limit the relevance of their definitions to writing requirements derived from the respective sets of rules ("[i]n these Principles" and [f]or the purposes of this Convention").[4]

Within the PECL, the provisions containing such requirements can be divided into two groups: The first group consists of provisions that require a written statement in order to be applicable (Article 1:304(1) defining the moment when a period of time set by a party in a written statement begins to run,[5] Article 2:207(2) addressing late acceptances contained in a writing, Article 2:210 governing professionals' written confirmations,[6] and Article 3:208 regulating the effect of the principal's silence to a third party's written confirmation including a request to ratify an act of the agent), while the provisions of the second group govern cases in which the contracting parties have provided for a writing requirement in their contract (Article 2.105(1) applying to "merger clauses" and Article 2:106(1) dealing with "no oral modifications" clauses in written contracts).

In the CISG, only few provisions specifically deal with declarations in writing: Article 21(2) CISG which, being identical to Article 2:207(2) PECL,[7] belongs to the first above mentioned group of provisions and is subject to Article 13 CISG,[8] and Articles 12, 96 CISG dealing with form requirements in national laws which may apply due to a declaration of a Contracting State - it is, however, doubtful if Article 13 CISG covers this case as well.[9] Additionally, the [page 268] definition in Article 13 CISG applies to Article 29(2) CISG:[10] This provision expressly addresses contractual "no oral modifications" clauses and is, according to one author,[11] also applicable to merger clauses.[12]

In practical terms, however, the primary importance of Article 13 CISG lies in the fact that its definition also applies to any other contractual "writing" requirement stipulated by the parties:[13] Apart from the clauses envisaged by Article 29(2) CISG, the parties may also subject other declarations in conjunction with the contract's execution to a form requirement, thereby derogating from the rule in Article 11 CISG. Possible contractual writing requirements, for instance, may concern the notice of non-conformity (Articles 39(1), 43(1) CISG),[14] the notice fixing an additional time for performance (Article 47(1) CISG), the buyer's specification of form, measurement or other features of the goods (Article 65(1) CISG), the declaration of avoidance (Article 26 CISG), the notice of the intention to declare the contract avoided because of a future fundamental breach of contract by the other party (Article 72(2) CISG) or the notice of the intention to sell the goods (Article 88(1), (2) CISG). In these cases, it is necessary to first look to Article 8 CISG in order to determine the parties' intent when agreeing on the writing requirement.[15] Whenever it is impossible to ascertain a particular intention, Article 13 CISG will apply.[16] [page 269]

3. Use of Article 1:301(6) PECL in interpreting Article 13 CISG

Article 13 CISG does not provide an exhaustive definition of the term "writing", but merely states that it "includes" telegram and telex. The provision which was incorporated only at the 1980 Vienna Diplomatic Conference [17] and has no direct predecessor in ULF, ULIS or any of the Convention's previous drafts thus reflects the technical standards of the year 1980. Since then, a number of other means of communication not explicitly addressed by Article 13 CISG have started to play an important role in international business transactions.[18] This poses the question if, and under which conditions, modern means of communication can be considered to fulfill writing requirements for the purposes of the CISG.

By stating that "writing" includes telegram and telex, the wording of CISG Article 13 makes clear that it does not fix the outer limits of this term.[19] As writing requirements in and arising in connection with contracts of sale are clearly within the scope of the Convention,[20] recourse is thus to be had to the Convention's general principles addressed by Article 7(2) CISG.[21] Unfortunately, the fact that the Convention itself does not impose any form requirements (see Article 11 CISG), that the legislative history of Article 13 CISG is brief and inconclusive, and that the primary role of Article 13 CISG lies in the interpretation of contractual form requirements, make it difficult to derive a general principle on writing requirements from the Convention.[22] The main purposes of a writing requirement under the CISG identified by some commentators – to establish the content of a declaration [23] and to permit the identification of its author [24] – accordingly seem to have been drawn from national legal systems, not the Convention itself. [page 270]

In this situation, it is preferable to look to Article 1:301(6) PECL as an aid for interpretation: This provision was drafted fifteen years after its counterpart in Article 13 CISG and therefore specifically takes into account the various modern means of communication that have been developed since. By drawing on a wide range of legal materials from within and outside Europe (including the CISG itself),[25] the drafters of Article 1:301(6) PECL have come up with a convincing solution in line with the trend in modern international trade legislation.

4. Modern means of communication under the CISG and the PECL

No differences exist between the two instruments with respect to declarations made by telegram and telex which are explicitly covered by both Article 13 CISG and Article 1:301(6) PECL. Also, neither of the two provisions deals with form requirements demanding a signature, a document signed by both parties or an electronic signature:[26] Contractual stipulations of this kind [27] are subject to the general rule on interpretation in Article 8 PECL.

4.1 Telefax

The first new means of communication introduced to the business community after the Convention's adoption in 1980 was the telefax (telecopy). It is explicitly mentioned in PECL Article 1:301(6) and also in other international instruments containing provisions which have been modelled on CISG Article 13.[28]

Telefaxes are generally considered to be covered by the term "writing" in Article 13 CISG.[29] Some commentators, however, favor a restriction to faxes which have been printed out as opposed to a fax which is transferred from computer to computer and only appears on the [page 271] recipient's screen or is only retrievable,[30] while one author wants to apply Article 13 CISG to declarations which have been transmitted "by fax only", but not to those sent "by fax and post".[31] In the light of Article 1:301(6) PECL, it is not necessary that the telefax has been printed out by the recipient, as long as he had the option to obtain a "readable record" of the statement. This condition is certainly fulfilled if the fax is stored on the recipient's computer system, but also if the fax message merely appears on the recipient's screen and he chooses not to print it out.[32] Accordingly, it is submitted that only telefaxes transferred from computer to computer that merely appear on the recipient's screen without the option of producing a print-out or saving it as an electronic file cannot be considered to be in "writing" in the sense employed by Article 13 CISG.[33] All other telefaxes constitute a "writing" for the purposes of the Convention.

4.2 Electronic Data Interchange (EDI)

Where Electronic Data Interchange, defined as "the electronic interchange of machine processable structured data, which has been formatted according to agreed standards and which can be transmitted directly between different computer systems with the aid of telecommunication interfaces,"[34] is used in connection with a contract of sale, the parties usually have concluded an interchange agreement [35] prior to their first declaration by way of EDI. Such an agreement will often allow courts or arbitrators to determine if the parties had the intent to treat statements made through EDI as a "writing" in the sense employed in their sales contract.[36]

Whenever these indications are insufficient or inconclusive, Article 13 CISG provides the relevant guidelines. A number of commentators have argued that this provision has to be [page 272] read to include EDI.[37] This interpretation seems to be in line with Article 1:301(6) PECL, which makes no explicit mention of EDI, but covers any "means of communication capable of providing a readable record of the statement on both sides."[38] Accordingly, an EDI message suffices where writing is required for the purposes of the Convention.

4.3 Electronic Mail (e-mail)

Under Article 1:301(6) PECL, the term "written" statement explicitly includes declarations made by electronic mail. The main difference between e-mail and Electronic Data Interchange lies in the fact that within the latter system a number of different technical standards for data messages are used which, as they are not necessarily compatible with each other, thus usually require a prior agreement between sender and recipient (the interchange agreement), while the former uses "open" data connections and computer networks.[39] In cases where e-mails have been used, it will therefore not be possible to rely on interchange agreements in order to interpret contractual writing requirements.

As electronic mail is a means of communication capable of providing a readable electronic record of the messages sent (by storing the messages in the mailing systems of the sender and the recipient), it fulfills the standards of Article 13 CISG.[40] This rule applies to any e-mail and does neither require the message to be converted into paper-based form,[14] nor is it restricted to e-mails authenticated by an electronic signature.[42]

4.4 Internet and World Wide Web

The terms "Internet" and "World Wide Web" are often used interchangeably,[43] although they are not synonymous:

The Internet is a massive networking infrastructure connecting millions of computers globally, forming a network in which any computer can communicate with any other computer as long as they are both connected to the Internet. As far as communications via the Internet are concerned that merely use the Internet as a network of data connections through which electronic messages are transmitted between the mailing [page 273] systems of the sender and of the recipient, the situation under Article 13 CISG is identical to the one discussed above.

The World Wide Web, on the contrary, is a way of accessing information over the medium of the Internet. It is thus an information-sharing model that is built on top of the Internet and which is often used for purposes of electronic commerce. As the World Wide Web (the web) is in a number of ways different from e-mail,[44] declarations made over the web require special attention under Article 13 CISG: Frequently, companies' web sites on the web are organized in a way that allows statements to be made to the company by using a "form" provided on the web site. The web user types his message into the form and dispatches it by clicking on the relevant "button". As far as contracts of sale are concerned, this means of communication could e.g., be used to give notices of non-conformity according to Article 39(1) CISG to sellers providing the abovementioned option on their web site.

A declaration made through a web site form does, however, not fulfil the writing requirement as defined in Article 1:301(6) PECL, as it does not provide a readable record of the statement on both sides – once the declaration is dispatched, an electronic record remains on the recipient's side only, but not on the side of the sender (contrary to the use of e-mail, the sender’s mailing system is not involved). When accepting that the prerequisite of a record existing on both sides serves as a compensation for the lack of a paper-based documentation of the statement,[45] declarations over the World Wide Web of the kind described above cannot be considered to fulfil the requirements of Article 13 CISG.

5. Conclusion

As Article 13 CISG does not explicitly deal with the modern means of communication that have been introduced after 1980 and are nowadays frequently used in connection with the conclusion and performance of international sales contracts, the more recently adopted Article 1:301(6) PECL, which has an identical purpose and is based on the same philosophy, provides a useful aid in its interpretation. By looking to its PECL counterpart when applying Article 13 CISG to electronic communications, courts and arbitrators can keep the CISG from becoming a piece of petrified law [46] and, at the same time, allow the Convention to take its place as a part of the emerging global legal framework for electronic commerce.[47] [page 274]


FOOTNOTES

* The author is a member of the Graduiertenkolleg "Europäisches Privat- und Wirtschaftsrecht" at the Humboldt-University in Berlin.

This comparative is also published at 6 Vindobona Journal of International Commercial Law and Arbitration (2002-1) 267-274. Pagination to that publication is provided to facilitate citation to the Vindobona text.

1. For Article 13 CISG, see Peter Schlechtriem, Internationales UN-Kaufrecht (1996), no. 98. For PECL Article 1:301(6), see Note 6 to Article 1:301.

2. Rolf Herber & Beate Czerwenka, Internationales Kaufrecht: Kommentar zu dem Übereinkommen der Vereinten Nationen vom 11. April 1980 über Verträge über den internationalen Warenkauf (1980) (1991), Art. 13 no. 4; contra Fritz Enderlein & Dietrich Maskow, International Sales Law (1992), Art. 13 no. 1 [available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>].

3. See Peter Schlechtriem, Article 24, in Commentary on the UN Convention on the International Sale of Goods (Peter Schlechtriem ed., 1998), no. 15 (unintelligible declarations) and no. 16 (foreign languages).

4. In Oberster Gerichtshof [Supreme Court], Austria, 2 July 1993, Juristische Blätter (1994) 119, at 121 the court observed that the definition in Article 13 CISG applies only "for the purposes of this Convention" and may therefore not be extended to domestic lease contracts; case presentation also available in English at <http://cisgw3.law.pace.edu/cases/930702a3.html>.

5. See Comment B to Article 1:304 PECL which refers to the definition in Article 1:301(6) PECL.

6. See Comment B to Article 2:210 PECL referring to the definition in Article 1:301(6) PECL.

7. See Note 2 to Article 2:207.

8. Miguel Coca Payeras, Articulo 13, in La Compraventa Internacional de Mercaderias: Comentario de la Convencion de Viena, at 158 (Luis Díez-Picazo y Ponce de León ed., 1998); John O. Honnold, Uniform Law for International Sales, no. 130 (3rd ed. 1999); Ulrich Magnus, Artikel 13, in Julius von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Wiener UN-Kaufrecht (CISG) (1999), no. 6; Karl H. Neumayer & Catherine Ming, Convention de Vienne sur les Contrats de Vente internationale de Marchandises (1993), Art. 13 no. 2; Wolfgang Witz, Artikel 13, in International Einheitliches Kaufrecht: Praktiker-Kommentar und Vertragsgestaltung zum CISG, no. 1 (Wolfgang Witz, Hanns-Christian Salger & Manuel Lorenz eds., 2000).

9. It is subject to dispute if the opening phrase of Article 13 CISG ("For the purposes of this Convention") covers cases where the writing requirement itself is rooted in domestic law and CISG Article 96 merely allows its application; see, on the one hand, Enderlein & Maskow, supra note 2, Art. 13 no. 1; Herber & Czerwenka, supra note 2, Art. 13 no. 2; Schlechtriem, supra note 3, Article 13, no. 4 (arguing that CISG Article 13 should apply); and, on the other hand, Siegfried Eiselen, Electronic Commerce and the UN Convention on Contracts for the International Sale of Goods (CISG) 1980, 6 EDI Law Review (1999), at 36, also available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/eiselen1.html>; Honnold supra note 8, no. 130; Jerzy Rajski, Article 13, in Commentary on International Sales Law, no. 3.1 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987) (stating that Article 13 CISG does not apply). As this dispute concerns the scope of Article 13 CISG, the PECL cannot insofar serve as an aid to interpretation.

10. Bernard Audit, La vente internationale de marchandises: Convention des Nations-Unies du 11 avril 1980 (1990), at 74; Coca Payeras, supra note 8, at 158; Enderlein & Maskow, supra note 2, Art. 13 no. 1; Honnold, supra note 8 no. 130; Magnus, supra note 8, no. 1; Neumayer & Ming, supra note 8, Art. 13 no. 2; Rajski, supra note 9, no. 1.1; Schlechtriem, supra note 9, no. 3.

11. Schlechtriem, supra note 3, Article 29 no. 6. See also ICC Arbitral Award, March 1998, No. 9117, where the arbitral tribunal remarked that "[t]he written modification clause [the significance of which was explained referring to Article 29(2) CISG] has the same effects as the merger clause with regard to any future negotiations, promises and any other extrinsic evidence which otherwise might be adduced for supplementing, altering or contradicting the written contract." [Case presentation available at <http://cisgw3.law.pace.edu/cases/989117i1.html>.]

12. The term "writing" is also used in Article 11 CISG. Its exact definition, however, is not necessary for the purposes of this provision as Article 11 CISG also rejects "any other requirement as to form."

13. Enderlein & Maskow, supra note 2, Art. 13 no. 1; Magnus, supra note 8, no. 6; Neumayer & Ming, supra note 8, Art. 13 no. 2; Rajski, supra note 9, no. 3.1; Witz, supra note 8, no. 1.

14. See Landgericht [District Court] Stuttgart, Germany, 13 August 1991, 16 S 40/91, [case presentation also available on-line at <http://cisgw3.law.pace.edu/cases/910813g1.html>], where the seller's standard terms required the buyer's notice of non-conformity to be given by registered letter (lettre recommandée).

15. Herber & Czerwenka, supra note 2, Art. 13 no. 5; Werner Melis, Artikel 13, in Kommentar zum UN-Kaufrecht, no. 6 (Heinrich Honsell ed., 1997); Neumayer & Ming, supra note 8, Art. 13 no. 2; Schlechtriem, supra note 1, no. 98.

16. See Schlechtriem, supra note 11, no. 7: If one party's use of the term "writing" was intended to impose stricter requirements than in Article 13 CISG (e.g., he intended it to have the sense it has in his own domestic law), that party bears the burden of proving that pursuant to Article 8 CISG his declaration was intended to derogate from Article 13 CISG and that the other party accepted it as such.

17. See U.N. Official Records (1981), at 74.

18. Cf. Eiselen, supra note 9, at 36; Franco Ferrari, Einige kurze Anmerkungen zur Anwendbarkeit des UN-Kaufrechts beim Vertragsschluss über das Internet, European Legal Forum (2000/01) 301, at 305.

19. Wilhelm-Albrecht Achilles, Kommentar zum UN-Kaufrechtsübereinkommen (CISG) (2000), Art. 13 no. 1; Enderlein & Maskow, supra note 2, Art. 13 no. 1; Honnold, supra note 8, no. 130; Magnus, supra note 8, no. 5; Neumayer & Ming, supra note 8, Art. 13 no. 1.

20. Eiselen, supra note 9, at 36. This of course only applies to matters of sales law – as far as writing requirements relating to matters which are often addressed in contracts of sale but are not governed by the CISG are concerned (e.g., arbitration clauses or guarantees of payments and performance), the writing requirement is subject to national law. See Schlechtriem, supra note 3, Article 11 no. 10.

21. Coca Payeras, supra note 8, at 159; Eiselen, supra note 9, at 29, 36.

22. Rolf Herber, Article 7, in Commentary on the UN Convention on the International Sale of Goods, no. 36 (Peter Schlechtriem ed., 1998), on the contrary, considers the principle that declarations may be made without observing requirements as to form to be a general principle of the Convention in accordance with CISG Article 7(2); accord Schlechtriem, supra note 1, no. 49.

23. Rajski, supra note 9, no. 2.2; see also Peter Schlechtriem, Artikel 13, in Kommentar zum Einheitlichen UN-Kaufrecht, no. 2 (Peter Schlechtriem ed., 3rd ed. 2000).

24. Coca Payeras, supra note 8, at 159; Magnus, supra note 8, no. 4; Rajski, supra note 9, no. 2.2.

25. See Note 6 to Article 1:301 stating that CISG Article 13 is "narrower".

26. Schlechtriem, supra note 23, no. 2.

27. The Convention itself does not require a signature in its Articles 21(2) and 29(2), see Honnold, supra note 8, no. 130. Such requirements can, however, frequently be found in contractual clauses; see U.S. District Court S.D.N.Y., 22 September 1994, 92 Civ. 3655 (JFK) – Graves Import Company Ltd. & Italian Trading Company v. Chilewich International Corp., where the contract stipulated that "[n]o amendments and additions to the present Contract shall be valid unless the same are in writing and signed by duly authorized representatives of both parties." [Case presentation available on-line, at <http://cisgw3.law.pace.edu/cases/940922u1.html>].

28. E.g., Uniform Act Relating to General Commercial Law of the Organization for the Harmonization of Business Law in Africa (OHADA) Article 209, see Ulrich G. Schroeter, Das einheitliche Kaufrecht der afrikanischen OHADA-Staaten im Vergleich zum UN-Kaufrecht, Recht in Afrika (2001) 163, at 167 [available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/schroeter.html>].

29. Audit, supra note 10, at 73; Eiselen, supra note 9, at 29; Herber & Czerwenka, supra note 2, Art. 13 no. 4; Vincent Heuzé, La vente internationale de marchandises (1992), no. 205; Honnold, supra note 8, no. 130; Magnus, supra note 8, no. 5; Neumayer & Ming, supra note 8, Art. 13 no. 1.

30. Achilles, supra note 19, Art. 13 no. 1; Schlechtriem, supra note 23, no. 2; Witz, supra note 8, no. 2 (requiring that the fax is "directly" printed out by the recipient).

31. Melis, supra note 15, no. 4. This distinction, it is submitted, is hardly convincing.

32. The recipient's situation is comparable to that of a person receiving a (paper-based) letter: The declaration contained therein is beyond doubt "in writing", even if the recipient subsequently destroys the letter.

33. This interpretation also conforms to the definition contained in a recent UNCITRAL text: The Convention on the Assignment of Receivables in International Trade (2001), Article 5(c) defines "writing" as "any form of information that is accessible so as to be usable for subsequent reference."

34. Eiselen, supra note 9, at 23.

35. Eiselen, supra note 9, at 37 et seq. On standard interchange agreements, see Amelia H. Boss, Electronic Commerce and the Symbiotic Relationship Between International and Domestic Law Reform, 72 Tulane Law Review (1998) 1931, at 1949 et seq.

36. See Eiselen, supra note 9, at 27: "[i]f an Interchange Agreement specifically prescribes the methods of communications [...], that should be heeded." An interchange agreement may also be taken into account if the sales contract incorporating the form requirement was concluded prior to the interchange agreement, as under Article 8(3) CISG due consideration is to be given to "all circumstances of the case including [...] any subsequent conduct of the parties" when determining their intent.

37. Eiselen, supra note 9, at 36; Honnold, supra note 8, no. 130; Magnus, supra note 8, no. 5.

38. It is the present author's position that a readable record in electronic format suffices for the purposes of CISG Article 13; see supra, 4 a) (on telefaxes transmitted from computer to computer); contra Witz, supra note 8, no. 2.

39. The most important network system for the transmission of e-mails is the Internet; see the text infra, at 4 d) for a brief description.

40. Eiselen, supra note 9, at 36; Magnus, supra note 8, no. 5; Willibald Posch, Article 13, in Praxiskommentar zum ABGB samt Nebengesetzen, no. 3 (Michael Schwimann ed., 2nd ed. 1997); contra Witz, supra note 8, no. 2.

41. Magnus, supra note 8, no. 5; contra Achilles, supra note 19, Art. 13 no. 1; Schlechtriem, supra note 1, no. 68.

42. Magnus, supra note 8, no. 5; but see Schlechtriem, supra note 23, no. 2.

43. Cf. e.g. Schlechtriem, supra note 23, no. 2.

44. The main technical difference is that the World Wide Web and e-mail rely on different protocols to transmit data over the Internet: The web uses the HTTP protocol, whereas e-mail uses the SMTP protocol.

45. It has to be kept in mind that the traditional paper-based form of communication qualifying as a "writing" in the sense employed by Article 13 CISG – the letter – does, once received by the recipient, only provide a record of the statement on one side (the recipient's), but not on the side of the sender.

46. See Eiselen, supra note 9, at 21.

47. See Boss, supra note 35, at 1979.


Pace Law School Institute of International Commercial Law - Last updated November 21, 2002
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