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Article 11. Formal Requirements

TEXT OF ARTICLE 11

A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

11A Writing or other formality for conclusion of contract

11A1 Inapplicability of domestic law (but see arts. 12 and 96)

11B Proof of contract by any means, including witnesses


DESCRIPTORS

Formal requirements


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 20 cases in its Digest of Art. 11 case law:

Australia      1           Hungary      1           Russian Federation        1
Austria      3           Mexico      1           Switzerland         4
Belgium 4 Netherlands      2 United States        2
Germany      2       TOTAL:   21

Presented below is a composite list of Art. 11 cases reporting UNCITRAL Digest cases and other Art. 11 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 22 May 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website.
 

United States 26 March 2009 U.S. District Court [Ohio] (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH) 11A1 ; 11B

Netherlands 17 February 2009 Gerechtshof [Appellate Court] 's-Gravenhage (U.S. party v. Restauratiebedrijf B.V.)

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case) [translation available]
 

Netherlands 5 November 2008 Rechtsbank [District Court] Arnhem (Baufix Holz- und Bauetechnik GmbH v. Eurovite Nederland)

United States 7 October 2008 U.S. District Court [New Jersey] (Forestal Guarani, S.A. v. Daros International, Inc.)

Slovak Republic 17 June 2008 District Court Dolny Kubin [translation available]

United States 16 June 2008 U.S. District Court [Minnesota] (BTC-USA Corporation v. Novacare et al.)

United States 9 May 2008 U.S. District Court [Delaware] (Solae, LLC v. Hershey Canada, Inc.) 11A
 

Slovak Republic 29 October 2007 District Court Bardejov (Glass chaton case) [translation available]

Slovak Republic 25 October 2007 Regional Court [District Court] Zilina (Elastic fitness clothing case) 11A [translation available]

American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.)

Germany 2 July 2007 Oberlandesgericht [Appellate Court] Köln (Cutter head case)

Slovak Republic 27 June 2007 Supreme Court Zilina (Elastic fitness clothing case) 11A [translation available]

Slovak Republic 18 June 2007 Regional Court Zilina (Baked and confectionary goods case) [translation available]

Hungary 6 June 2007 Congrád County Court (Clothing case) [translation available]

Italy 16 May 2007 Corte di Cassazione [Supreme Court] (Amministrazione delle Finanze dello Stato v. Ford Italia S.p.A.) 11A

Austria 3 May 2007 Handelsgericht [Commercial Court] Vienna (Poppy seed case) [translation available]

Slovak Republic 9 March 2007 Regional Court Bratislava (Blouses case) [translation available]

United States 31 January 2007 Federal District Court [Minnesota] (Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Limited)

Netherlands 17 January 2007 Rechtbank [District Court] Arnhem (Hibro Compensatoren B.V. v. Trelleborg Industri Aktiebolag) 11A [translation available]

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 11A
 

Italy 13 October 2006 Court Supremo di Cassazione [Supreme Court] (Amministrazione delle Finanze dello Stato v. Ford Italia S.p.A.) 11A

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH)

Slovak Republic 27 June 2006 District Court Nitra (Children's equipment case) [translation available]

Slovak Republic 17 May 2006 District Court Nitra (Agricultural products case) [translation available]

Slovak Republic 10 May 2006 Regional Court Banska Bystrica (Floor tiles case) [translation available]

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International)

Egypt 11 April 2006 Court of Cassation [Supreme Court] (Marble case) 11A

Slovak Republic 27 February 2006 District Court Nitra (L.-K S.r.l. v. N. S.r.l.) [translation available]

United States 7 February 2006 Federal District Court [Texas] (China North Chemical Industries v. Beston Chemical Corporation) 11B
 

United States 27 April 2005 U.S. District Court [Alabama] (Treibacher Industrie, A.G. v. TDY Industries, Inc.) 11B

Germany 13 April 2005 Landgericht [District Court] Bamberg (Furnishings case) [translation available]

Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) [translation available]
 

Switzerland 11 October 2004 Kantonsgericht [Canton Court] Freiburg 11B [translation available]

Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) [translation available]

Switzerland 29 April 2004 Handelsgericht [Commercial Court] St. Gallen [translation available]

Netherlands 17 March 2004 Arrondissements Rechtbank [District Court] Arnhem

Italy 25 February 2004 Tribunale [District Court] Padova [translation available]

Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) [translation available]
 

Spain 28 October 2003 Audiencia Provincial [Appellate Court] Barcelona

Germany 27 October 2003 Oberlandesgericht [Appellate Court] Rostock 11B [translation available]

Switzerland 4 August 2003 Bundesgericht [Federal Supreme Court] 11A [translation available]

United States 5 May 2003 U.S. Circuit Court of Appeals [9th Cir.] (Chateau des Charmes Wines v. Sabate USA) 11A

Belgium 28 April 2003 Cour d’appel [Appellate Court] Liège 11A [translation available]

Belgium 19 March 2003 Rechtbank van Koophandel [District Court] Veurne
 

France 28 November 2002 Cour d’appel [Appellate Court] Grenoble 11A [translation available]

Switzerland 11 November 2002 Cour de Justice [Appellate Court] Genève (Iron concretes and steel bars case) 11A [translation available]

Switzerland 13 September 2002 Cour de Justice [Appellate Court] Genève [translation available]

* Belgium 22 May 2002 Rechtbank van Koophandel [District Court] Hasselt 11A

* Belgium 15 May 2002 Hof van Beroep [Appellate Court] Gent 11A [translation available]

United States 10 May 2002 U.S. District Court [Southern Dist. NY] (Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc.) 11A

Austria 7 March 2002 Oberlandesgericht [Appellate Court] Graz 11A [translation available]
 

Germany 12 November 2001 Oberlandesgericht [Appellate Court] Hamm (Memory module case) 11A [translation available]

United States 7 November 2001 U.S. District Court [New York] (Atla-Medine v. Crompton) 11A

* Netherlands 12 July 2001 Arrondissementsrechtbank [District Court] Rotterdam [translation available]

Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 11A [translation available]

* Belgium 4 April 2001 Rechtbank van Koophandel [District Court] Kortrijk 11B
 

Finland 26 October 2000 Helsingin hoviokeus [Helsinki Court of Appeals] 11A [translation available]

* Switzerland 15 September 2000 Bundesgericht [Federal Supreme Court] [4C.105/2000] 11A [translation available]

* United States 8 August 2000 U.S. District Court [Southern Dist. NY] (Fercus v. Mario Palazzo) 11A

* Austria 9 March 2000 Oberster Gerichtshof [Supreme Court] 11A [translation available]
 

* Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] [translation available]

China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 11A1 [translation available]
 

Germany 29 December 1998 Hamburg Arbitration award [translation available]

Mexico 30 November 1998 Compromex Arbitration award[translation available]

United States 27 October 1998 Federal District Court [Illinois] (Mitchell Aircraft Spares v. European Aircraft Service)

* United States 29 June 1998 Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino)

Denmark 23 April 1998 Østre Landsret [Appellate Court] 11B

United States 6 April 1998 Federal District Court [Southern Dist. NY] (Calzaturificio Claudia v. Olivieri Footwear) 11A

ICC March 1998 International Court of Arbitration, Case 9117 [English text]

* Russia 16 February 1998 High Arbitration Court [Information Letter 29]
 

China 31 December 1997 CIETAC Arbitration Award [CISG/1997/37] (Lindane case) [translation available]

* Netherlands 7 November 1997 Hoge Raad [Supreme Court]

China 8 October 1997 CIETAC Arbitration Award [CISG/1997/29] (Industrial tallow case) [translation available]

* Switzerland 3 July 1997 Bezirksgericht [District Court] St. Gallen [translation available]

Hungary 17 June 1997 Fovárosi Bíróság [Metropolitan Court]

Russia 25 March 1997 Presidium of Supreme Court of Russian Federation (Resolution No. 4670/96) 11A1 [translation available]
 

China 17 October 1996 CIETAC Arbitration Award [CISG/1996/47] (Tinplate case) [translation available]

* Mexico 29 April 1996 Compromex Arbitration award 11B [translation available]

Russia 15 February 1996 Arbitration Court of Moscow City

* Austria 6 February 1996 Oberster Gerichtshof [Supreme Court] 11B [translation available]
 

* Switzerland 5 December 1995 Handelsgericht [Commercial Court] St. Gallen (Computer hardware devices case) 11A [translation available]

Austria 23 May 1995 Oberlandesgericht [Appellate Court] Linz

* Belgium 2 May 1995 Rechtbank van Koophandel [District Court] Hasselt

* Australia 28 April 1995 Federal District Court, Adelaide (Roder v. Rosedown)

* United States 12 April 1995 State Appellate Court [Oregon] (GPL Treatment v. Louisiana-Pacific) 11A ; 11B

* Germany 8 March 1995 Oberlandesgericht [Appellate Court] München 11A [translation available]
 

Germany 2 August 1994 Landgericht [District Court] München

* Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 11A [translation available]
 

Germany 1 December 1993 Landgericht [District Court] Hanover

* Germany 1 December 1993 Landgericht [District Court] Memmingen 11B

United States 15 June 1993 Federal Appellate Court [5th Circuit] (Beijing Metals v. American Business Center) 11A1

Mexico 4 May 1993 Compromex Arbitration award 11A [translation available]
 

* Switzerland 21 December 1992 Zivilgericht [Civil Court] Basel [translation available]

United States 14 April 1992 Federal District Court [Southern Dist. NY] (Filanto v. Chilewich) 11B

* Hungary 24 March 1992 Fovárosi Bíróság [Metropolitan Court] 11A


UNCITRAL CASE DIGEST

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/11 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 11
Digest of Article 11 case law
-    Freedom from form requirements as to the conclusion of the contract
-    Form requirements and evidence of the contract
-    Limits to the freedom from form requirements]
ARTICLE 11

     A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.

DIGEST OF ARTICLE 11 CASE LAW

Freedom from form requirements
as to the conclusion of the contract

1. This provisions lays down the rule pursuant to which, subject to article 12, a contract of sale need not be concluded in writing and is not subject to any other specific requirement as to form.[1] The provisions, in other words, establishes the principle of freedom from form requirements.[2] One court even stated that “[u]nder article 11 CISG, a contract of sale can be concluded informally”.[3] According to case law this means that a contract can also be concluded orally [4] and through the conduct of the parties.[5] Furthermore, one court stated that a signature was not necessary for the contract to be valid because a sales contract is not subject to any requirement as to form.[6]

2. Several tribunals expressly stated that the aforementioned principle, pursuant to which no form requirements have to be met as far as the conclusion of the contract is concerned, constitutes a general principle upon which the Convention is based;[7] from this principle it follows, among other things, that the parties are free to modify or terminate their contract in any form be it in writing or orally or in any other form. Even an implied termination of the contract has been held possible;[8] furthermore, it has been held that a written contract may be orally changed.[9]

3. As the legislative history states, despite the existence under the Convention of the aforementioned general principle, “[a]ny administrative or criminal sanctions for breach of the rules of any State requiring that such contracts be in writing, whether for purposes of administrative control of the buyer or seller, for purposes of enforcing exchange control laws, or otherwise, would still be enforceable against a party which concluded the non-written contract even though the contract itself would be enforceable between the parties.”[10]

Form requirements and evidence of the contract

4. Article 11 frees the parties also from having to comply with domestic requirements as to the means to be used in proving the existence of a contract governed by the Convention. Indeed, as expressly stated by various courts, “the contract can be proven with any means”.[11] Consequently, domestic rules requiring a contract to be evidenced in writing in order for it to be enforceable are superseded; one court, for instance, stated that “[u]nder the CISG, evidence of the oral conversations between [seller] and [buyer], relating to the terms of the purchase [...], could be admitted to establish that an agreement had been reached between [the parties].”[12]

5. As far as the evidence presented by the parties is concerned, it is up to the judge to determine — within the limits set by the procedural rules of the forum — how to evaluate it.[13] It is on this basis that one court [14] stated that a judge may well attribute more weight to a written document than to oral testimony.

6. For comments on the applicability of the parol evidence rule under the Convention, see article 8, para. 18.

Limits to the freedom from form requirements

7. According to article 12 of the Convention, the principle of freedom from form requirements does not per se apply where one party has its relevant place of business in a State that made an article 96 declaration.[15] Opposing views exists as to the effects of the article 96 reservation. According to one view, the sole fact that one party has its place of business in a State that made an article 96 reservation does not necessarily mean that the form requirements of that State apply.[16] Rather, it will depend on the rules of private international of the forum whether any form requirements have to be met. Thus, where those rules lead to the law of a State that made an article 96 reservation, the form requirements of that State will have to be complied with; where, on the other hand, the law applicable is that of a contracting State that did not make an article 96 reservation, the principle of freedom from form requirements laid down in article 11 applies, as repeatedly pointed out in case law.[17] According to the opposing view, however, where one party has its relevant place of business in a State that made an article 96 reservation, the contract must be concluded or evidenced or modified in writing.[18]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. See [AUSTRIA Oberster Gerichtshof [Supreme Court ] 9 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision); CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision); CLOUT case No. 308 [AUSTRALIA Roder v. Rosedown [Federal Court] 28 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950428a2.html>] (see full text of the decision); CLOUT case No. 137 [UNITED STATES GPL Treatment v. Louisiana-Pacific State Appellate Court [Oregon] 12 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950412u1.html>]; for similar affirmations, see also United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20.

2. [SWITZERLAND Bundesgericht [Supreme Court] 15 September 2000, available online at <http://cisgw3.law.pace.edu/cases/000915s1.html>].

3. CLOUT case No. 95 [SWITZERLAND Zivilgericht [Civil Court] Basel 21 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921221s1.html>] (see full text of the decision).

4. See CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, Federal Appellate Court [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (see full text of the decision); CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision); CLOUT case No. 134 [GERMANY Oberlandesgericht [Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>]; for an example of a case where an oral contract was held to be valid, see [GERMANY Oberlandsgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>].

5. For this statement, see [BELGIUM Hof van Beroep [Appellate Court] Gent 15 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>]; CLOUT case No. 134 [GERMANY Oberlandesgericht [Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>].

6. CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>].

7. See [MEXICO Compromex Arbitration award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>]; CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision).

8. [AUSTRIA Oberster Gerichtshof [Supreme Court] 29 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990629a3.html>].

9. [BELGIUM Hof van Beroep [Appellate Court] Gent 15 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>]; CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision).

10. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20.

11. See [BELGIUM Rechtbank [District Court] Hasselt 22 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020522b1.html>]; [BELGIUM Rechtbank [District Court] Kortrijk 4 April 2001, available online at <http://cisgw3.law.pace.edu/cases/010404b1.html>]; CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>]; CLOUT case No. 134 [GERMANY Oberlandesgericht [Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>].

12. CLOUT case No. 414 [UNITED STATES Fercus v. Mario Palazzo et al. Federal District Court [New York] 8 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000808u1.html>] (see full text of the decision).

13. See [BELGIUM Rechtbank [District Court] Kortrijk 4 April 2001, available online at <http://cisgw3.law.pace.edu/cases/010404b1.html>]; [GERMANY Landgericht [District Court] Memmingen 1 December 1993, available online at <http://cisgw3.law.pace.edu/cases/931201g1.html.html>].

14. [BELGIUM Rechtbank [District Court] Hasselt 22 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020522b1.html>].

15. [BELGIUM Rechtbank [District Court] Hasselt 2 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>].

16. [NETHERLANDS Rechtbank [District Court] Rotterdam 12 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010712n1.html>].

17. [NETHERLANDS Rechtbank [District Court] Rotterdam 12 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010712n1.html>]; [NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>]; CLOUT case No. 52 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 24 March 1992, available online at <http://cisgw3.law.pace.edu/cases/920324h1.html>].

18. [RUSSIA High Arbitration Court of the Russian Federation: Information Letter 29 of 16 February 1998; available at <http://cisgw3.law.pace.edu/cases/980216r1.html>]; [BELGIUM Rechtbank [District Court] Hasselt 2 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>].


ANNOTATED COMPARATIVES
-  UNIDROIT Principles
-  PECL comparative

Remarks on the manner in which the UNIDROIT
Principles of International Commercial Contracts may
be used to interpret or supplement Article 11 of the CISG

Chantal Niggemann [1]
July 2004

a. Parties to international contracts need to be able to rely on their agreement. Therefore, they need to know whether there are any formal requirements which have to be met for their agreement or its amendment to be valid. Some jurisdictions ask for specific form or comparable requirements to be met for the validity of commercial sales contracts, whereas most legal systems opt for the rule of consensualism, i.e., freedom of form.

During the deliberations of UNCITRAL for the elaboration of the CISG, one of the most controversial issues at the Vienna Conference was whether or not the principle of freedom of form of article 15 ULIS should be incorporated in the text of the CISG. Finally, a compromise was adopted with freedom of form as a basic rule and the reservation clause of articles 12 and 96 CISG.[2] Where at least one of the parties to the contract has its place of business in a reservation State and a court of that State hears the case, the court must determine the law applicable to form according to its conflict of law rules, just as a court of another State, which did not adopt the CISG.[3]

Although the issue of freedom of form might as well have been regulated in Part II of the CISG dealing with the formation of the contract, it has been integrated as a general provision and, therefore, also applies in case a party has its place of business in a State that declared a reservation under article 92 CISG.[4]

The UNIDROIT Principles opted for unconditional freedom of form, which is expressed in articles 1.2 and 3.2 of the UNIDROIT Principles.[5]

b. Article 1.2 of the UNIDROIT Principles merely refers to the writing requirement of contracts, whereas Article 11 sentence one CISG states that the contract is not subject to "any other requirement as to form", i.e., not only writing requirements. However, this difference is only in appearance, since although article 1.2 of the UNIDROIT Principles mentions only the requirement of writing, it has to be extended to other requirements as to form.[6] Moreover, article 1.2 of the UNIDROIT Principles is to be seen in conjunction with article 3.2 of the UNIDROIT Principles, stating that a contract is concluded "without any further requirement".

Article 3.2 of the UNIDROIT Principles seems to go even beyond the scope of article 11 CISG, since in comparison to article 11 CISG, which names requirements "as to form", article 3.2 of the UNIDROIT Principles does not contain such a restriction. It is, however, undisputed that article 11 CISG also includes quasi-formal requirements such as consideration as is to be found in common law systems.[7] The commentary to article 3.2 of the UNIDROIT Principles makes it clear that are also excluded is the requirement of cause which exists in some civil law systems, as well as rules regarding so-called real contracts, which require the handing over of goods for their conclusion.[8] Although the exclusion of the cause requirement and the real-contract rules is not discussed under the Convention, the same should apply and they should be displaced by the principle of freedom of form of article 11 CISG.

c. Both the UNIDROIT Principles in article 1.2, second sentence, and the CISG in article 11, second sentence, make clear that the principle of freedom of form implies the admissibility of oral evidence in judicial proceedings. The language of both clauses is perfectly identical, as is their understanding in the commentaries.[9] Article 1.2 second sentence of the UNIDROIT Principles may, therefore, merely support the interpretation of article 11 sentence two CISG.

d. According to article 6 CISG, the parties are of course also free to agree, orally or in writing, on specific form requirements to be met for the validity of the contract and which might also to be applied for modifications and/or termination.[10] This is also expressed in article 2.13 of the UNIDROIT Principles, and the illustrations contained in the Official Comments to article 2.13 of the UNIDROIT Principles may be helpful in the interpretation of article 11 in this respect.[11] In this regard and concerning written modification clauses, please refer to the Editorial remarks regarding article 29 CISG.

e. In case one of the parties confirms the content of a contract, whereby such confirmation contains additional or different terms, the question arises whether such terms may become part of the contract in case the confirmation is not in writing, i.e., whether article 11 CISG and the concept of freedom of form also applies to such confirmation. The CISG does not explicitly deal with this issue. In case the rules for Commercial letters of confirmation (kaufmännisches Bestätigungsschreiben) apply, e.g., as usages by which the parties are bound (see article 9 CISG), scholars and tribunals tend to ask for a written confirmation,[12] whereby article 2.12 of the UNIDROIT Principles deals with such a confirmation and explicitly requires it to be in writing.

f. Article 11 CISG only applies to the formation of the contract, not to its modification or termination as does article 3.2 of the UNIDROIT Principles. With regard to the manner in which the UNIDROIT Principles may be used to interpret or supplement aarticle 29 CISG for modifications and termination, please see the Editorial remarks regarding article 29 CISG.

g. As a result it can be said that the intent of article 11 CISG is reproduced in article 1.2 read in conjunction with 3.2 of the UNIDROIT Principles. Thereby, the Official Comments of articles 1.2 and 3.2 of the UNIDROIT Principles support the interpretation of article 11 CISG. In addition, articles 2.12 and 2.13 of the UNIDROIT Principles assist the further interpretation of freedom of form under article 11 CISG.


FOOTNOTES

1. Legal Counsel at Techem Energy Services GmbH & Co. KG, an international service provider in the field of measuring and billing of energy and water consumption with its place of business near Frankfurt am Main, Germany.

2. Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, 1986, p. 43 subs., available at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html>.

3. Schlechtriem in v. Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht -CISG-, 3rd ed. 2000, Art. 12 at marginal note 2 with further citations; Melis in Honsell, Kommentar zum UN-Kaufrecht, 1997, Art. 12 at marginal note 4.

4. Magnus in Staudinger, Kommentar zum BGB - Wiener UN-Kaufrecht (CISG), 1999, Art. 11 at marginal note 6; Witz in Witz/Salger/Lorenz, International Einheitliches Kaufrecht, 2000, Artt. 11-12 at marginal note 2; Heuzé, La vente internationale de marchandises, 1992, at note 196; see also Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. 1999, Art. 11 at note 127.1.

5. This principle of freedom of form may, however, be overridden by mandatory rules of the applicable law, see article 1.4 of the UNIDROIT Principles and note 2 of the Official Comments of article 1.2.

6. Official Comments on articles of the UNIDROIT Principles, article 1.2 at note 1.

7. Witz, loc. cit., Artt. 11-12 at marginal note 5; Schlechtriem in v. Caemmerer/ Schlechtriem, loc. cit., Art. 11 at marginal note 11; Magnus, loc. cit., Art. 11 at marginal note 9; see also Secretariat Commentary Art. 27 note. 2 referring to article 29 CISG.

8. Official Comments on articles of the UNIDROIT Principles, article 3.2 at notes 2 and 3. With regard to the requirement of cause, other effects which may derive from it such as its illegality are not concerned.

9. Schlechtriem in v. Caemmerer/Schlechtriem, loc. cit., Art. 11 at marginal notes 12 and 13 with further reference; Official comments on articles of the UNIDROIT Principles, article 1.2 at note 1.

10. Honnold, loc. cit, Art. 11 at note 127; Schlechtriem in v. Caemmerer/Schlechtriem, loc. cit., Art. 11 at marginal note 16; Melis in Honsell, loc. cit., Art. 11 at marginal note 3; Rajski in Bianca/Bonell, Commentary on the International Sales Law, 1987, Art. 11 at note 3.1.

11. Official Comments on articles of the UNIDROIT Principles, article 2.13 at note 2.

12. Schlechtriem in v. Caemmerer/Schlechtriem, loc. cit., Art. 11 at marginal note 6; Civil Court Basel, judgment dated 21 December 1992, in application of Austrian and Swiss legal rules regarding writings in confirmation, in BJM 1993, p. 310 subs.


PECL COMPARATIVE

Use of PECL Article 2:101(2) as an aid to interpreting Article 11 CISG

Allison E. Butler [*]
22 February 2003

1. General Interpretation and Application: No Formal Requirements
2. "Formal Requirements" for the Validity of the Contract

a. No formal requirement for contracts in general
b. Writing required
c. Specific contracts
3. Conclusion

1. General Interpretation and Application:   No Formal Requirements

     Article 11 CISG and its counterpart PECL Article 2:101(2) are similar in substance and form. Both provisions adopt the principle of "freedom of formalities," which upholds the validity of a contract absent writing or other formalities. Verbal and written evidence is permitted under both provisions to prove the formation of a contract.[1]

2. "Formal Requirements" for the Validity of the Contract

      a.    No formal requirement for contracts in general

Although PECL article 2:101(2) and CISG article 11 contain the same basic elements, implicit in Article 2:101(2) is its broad application to modification and termination by agreement as well as unilateral promises.[2] Article 2:101(2) also provides that parties to a contract can stipulate to preclude application of this provision, however, this option is highly unlikely, as this principle is widely accepted among the legal systems within the European community.[3]

In contrast, Article 11 is limited to the formation of a contract; Article 29 explicitly sets forth the applicable principle in the event of modification or termination. Due to the international sphere of application and certain members states preference for writing, Article 96 permits States that require contracts of sale to evidenced by writing the option to declare Article 11 inapplicable.[4]

     b.    Writing required

In various European member states, laws mandate commercial contracts to be in writing.[5] However, multiple exceptions are noted based in part to legal systems perception of proving contracts. Hence, oral testimony is often permitted even in the absence of a written document.

Similarly, the CISG also provides means for mandating that a contract be in writing. Notably, CISG article 11 does not apply if a Contracting State has made a Declaration under Article 96.[6] However, this does not mean that the transaction is subject to a writing requirement. The resolution of that issue may depend on a choice of law analysis.[7]

      c.    Specific contracts

The notes to PECL 2:101(2) acknowledge that specific contracts must be in writing or in a notarial document in order to be valid.  

Unlike the PECL, exclusion from the freedom of formalities of specific types of contracts is expressly stated in article 2.[8] As such, the CISG only applies to commercial contracts. Although different in subject matter, PECL 2:1010(2) may be of assistance in these circumstances.

3. Conclusion

     The PECL supports the same principle of freedom of formalities as outlined in the CISG. However, the PECL is apparently more flexible even when a written contract is mandated by law due in part to its acceptance by its members states of proving a contract by other means.   Although a Contracting State to the CISG can exempt itself from Article 11 via Article 96, a written document may still be mandated under a country's private law. Notably, such a Declaration may not fully exempt one from Article 11 's application. Although different in subject matter, PECL 2:101(2) may be of assistance in interpreting Article 11 CISG when the law mandates that specific contracts be evidenced in writing.


FOOTNOTES

* The author received her JD from Loyola University School of Law, New Orleans, Louisiana, USA (Common Law Program) and her B.A. in International Relations, with honors, from the University of South Florida, Tampa, Florida, USA.   She is a published author and a private practitioner in Martin County, Florida, USA.   

1. See CISG article 11; PECL article 2:101(2). Article 11 is one of the many articles whose legislative history illustrates the Conventions broad uniformity provision, CISG article 7, in which the delegates of the CISG intended to achieve the Convention's uniformity mentioned in Article 7(1) "by removing artificial impediments to commerce caused by differences in national legal systems that govern international sales of goods." Marian Nash (Leich), "Contemporary Practice of the United States Relating to International Law", 88 Am. J. Int'l L. 89, 103 (1994); see also, Anthony S. Winer, "The CISG Convention and Thomas Franck's Theory of Legitimacy", 19 NW. J. Int'l L. & Bus. 1, 1-3 (1998); see also, Carolina Saf [Sweden], excerpt from 1999 thesis available at <http://cisgw3.law.pace.edu/cisg/text/saf96.html>, stating that Article 11 establishes one of the basic rules of the Convention: the theory of consensualism, i.e. that a contract is not subject to any specific formal requirements.

For example, the absence of a writing requirement directly conflicts with the common-law Statute of Frauds. This issue is not as obvious under the PECL as most of the countries of the European community are civil law jurisdictions and do not mandate written contracts unless prescribed by law (and even then there are exceptions).

The legislative history of the CISG further reveals that a Canadian Representative proposed to adopt language that would provide "a limitation on admissible evidence in cases where the contracting parties had freely chosen to have a written contract." Several delegates opposed such an amendment as conflicting with principles of civil law where a judge is permitted to review all evidence.   Notably, in certain common-law jurisdiction the parol evidence rule or similar type of preclusion prohibits certain evidence.   One delegation refused to accept such a rigid rule that is difficult to apply and lacked a uniform body of jurisprudence even in common-law countries.   See John O. Honnold, Documentary History of the Uniform Law for International Sales 662, also available online at <http://cisgw3.law.pace.edu/cisg/1stcommittee/summaries11.html> and <http://cisgw3.law.pace.edu/cisg/1stcommittee/summaries96.html>. The Committee rejected the amendment and adopted Article 11 in its current form.

See e.g,, Switzerland 5 December 1995, Commercial Court, St. Gallen, available at <http://cisgw3.law.pace.edu/cases/951205s1.html>, holding a sales contract need not be concluded in or evidenced by writing and can be proved by any means including witnesses, an unsigned offer can be valid.
See also, United States 14 April 1992 Federal District Court [New York] Filanto S.p.A. v. Chilewich International Corp., available at <http://cisg3.law.pace.edu/cases/924014.html none;text-underline: none'>>;
Mexico 4 May 1993 Compromex Arbitration proceeding M/66/92, Jose Luis Morales v. Nez Marketing , available at <http://cisgw3.law.pace.edu/cases/930504m1.html>;
United States 29 June 1998 Federal Appellate Court [11th Circuit], MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino , available at <http://cisgw3.law.pace.edu/cases/980629u1.html>;
United States 8 August 2000 Federal District Court [New York], Fercus v. Mario Palazzo et al., available at <http://cisgw3.law.pace.edu/cases/000808u1.html>:
United States 10 May 2002 Federal District Court [New York], Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., available at <http://cisgw3.law.pace.edu/cases/020510u1.html>.

2. The CISG and the PECL therefore are based on the same principle of freedom of formalities as a starting point.   See generally, Sieg Eiselen, "Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Article 29 of the CISG", available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp29.html#er>.

3. Ole Lando & Hugh Beale eds., Principles of European Contract Law:   Parts I and Part II, Kluwer Law International (1\2000) 137, 138, 142-143.

4. Ten countries -- Argentina, Belarus, Chile, China, Estonia, Hungary, Latvia, Lithuania, the Russian Federation and the Ukraine -- have opted for it. The representative of the Soviet Union argued in particular that the preservation of domestic law requiring written documentation in international sales contracts was critical to protect established practices within the Soviet government for the approval and completion of foreign trade agreements.   See Analysis of Replies and Comments by   Government in Hague Conventions of 1964: Report of the Secretary-General, U.N. Doc. A/CN.9/31, reprinted in (1970) 1 Y.B.U.N. Comm'n on Int'l Trade L. 159, 170. It has also been reported that the Soviet representatives were more interested in the reservation as to the written requirement than the delegates from other socialist countries.  

5. See e.g., Danske Lov art. 5.1.1, SWEDEN, see Adlercreutz I 147; FINLAND, see Hoppu, 36; GREECE, CC art. 158; GERMANY, BGB § 125 (impliedly); AUSTRIA, AGBG § 883; PORTUGAL, CC 219 ff.

6. See generally, CISG articles 12 and 96.

7. To illustrate, assume a party located in the United States and a party located in Argentina orally agreed to a sales contract. Because Argentina has made the Article 96 reservation, the provisions of Articles 11 and 29 dispensing with any writing requirement are called off by Article 12. That does not, however, mean that the transaction is subject to a writing requirement. The resolution of that issue will depend on a choice of law analysis. If private international law principles lead to the application of Argentinian law, the writing requirements of Argentinian domestic sales law will apply. If the rules of private international law designate U.S. law, then the writing requirements of U.S. domestic sales law will apply. The result in the latter situation is rather ironic. Because one party to the sale is from Argentina and Argentina has made an Article 96 reservation, the transaction becomes subject to the domestic U.S. Statute of Frauds requirements (most likely § 2-201 of the Uniform Commercial Code as enacted in the jurisdiction whose law governs the transaction). And this is the case, even though the United States, by failing to make an Article 96 declaration, in effect declared its willingness to forego its Statute of Frauds rules and accept oral international sales contracts.

As such, the reservation permitted by Article 96 changes the text of the Convention by eliminating those aspects of Articles 11 and 29 (as well as anything in Part II of the CISG) that dispense with writing requirements. The Article 96 reservation has this effect, not just in countries making the reservation, but also in non-reserving countries, on a transaction-by-transaction basis. In other words, whether the text of the Convention includes provisions eliminating writing requirements varies, even in a State that has not made the Article 96 reservation, depending on whether one of the parties is located in another State that made the reservation.

See generally, Harry M. Flechtner, The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1), 17 Journal of Law and Commerce (1998) 187-217, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html>.

See, e.g., Demark 23 April 1998 Østre Landsret [Appellate Court], Elinette Konfektion v. Elodie S.A. <http://cisgw3.law.pace.edu/cases/980423d1.html>; but see, Mexico 29 April 1996 Compromex Arbitration proceeding, Conservas La Costeña v. Lanín, available at <http://cisgw3.law.pace.edu/cases/960429m1.html>, finding that "the essential terms of the contractual relationship" had been sufficiently established in writing despite Argentina's declaration. The writing requirement does not call for a formal or solemn contract and a different interpretation, in the opinion of Compromex, "would be in conflict with the general principles of the CISG."

8. In particular, Article 2 of the Convention expressly states that the Convention does not apply to the sale of goods for personal family or household uses unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for such use. Also excluded from the Convention is the sale of watercraft, aircraft, natural gas or electricity, letters of credit, auctions and securities. In the event of a mixed contract, the Convention would apply unless the "preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services." The CISG can apply to the sale of goods aspect of a distributorship; however, it does not apply to exclusivity or other non-sale aspect of distributorship agreements.


Pace Law School Institute of International Commercial Law - Last updated September 14, 2009
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