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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 11 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Form requirements and evidence of the contract
Limits to the principle of freedom from form requirement]

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.

INTRODUCTION

1. Subject to article 12, article 11 provides that a contract of sale need not be concluded in writing and is not subject to any other specific requirement as to form.[1] The provision thus establishes the principle of freedom from form requirements.[2] According to one court, this means that "[u]nder article 11 CISG, a contract of sale can be concluded informally,"[3] without the need for a writing requirement to be met,[4] which in turn has led one court to state that for the purpose of contract conclusion a party's signature was not required.[5] In light of the foregoing, it is unsurprising that some courts stated that under the Convention a contract can be concluded orally,[6] and even through the conduct of the parties.[7]

2. Where, however, the parties have agreed upon a certain form requirement, that agreement -- which may be either express or implicit -- prevails; consequently, the contract must meet the form requirements agreed upon.[8] One court held that where the parties agree upon certain form requirements, these requirements are to be met not simply for evidentiary purposes. Rather, they must be considered as having been introduced for validity purposes.[9]

3. The party claiming the existence of an agreed form requirement bears the burden of proof.[10]

4. The principle of freedom from form requirements is not only subject to party autonomy, but also to usages applicable pursuant to article 9.[11]

5. Several tribunals have expressly stated that the freedom-from-form-requirements rule that article 11 establishes with regard to concluding a contract constitutes a general principle upon which the Convention is based.[12] Under this principle, the parties are free to modify or terminate their contract in writing, orally, or in any other form. Even an implied termination of the contract has been held possible,[13] and it has been held that a written contract may be orally modified.[14] Some courts stated that a notice of non-conformity can be given in any form. basing their decision on the general principle of freedom from form requirements enshrined in article 11.[15]

6. As the Convention's drafting history states, despite the informality rule in article 11 "[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."[16]

Form requirements and evidence of the contract

7. Article 11 also frees the parties from domestic requirements relating to the means to be used in proving the existence of a contract governed by the Convention. One court expressly stated that the Convention "dispenses with certain formalities associated with proving the existence of a contract."[17] It is therefore unsurprising that various courts have emphasized that "a contract [governed by the Convention] can be proven by any means, including witnesses."[18] According to one court, this means that "[a] contract may be proven by a document, oral representations, conduct, or some combination of the three."[19] At the same time, this means that domestic rules requiring a contract to be evidenced in writing in order to be enforceable are superseded;[20] 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]."[21] A different court even stated that the "[Convention]'s lack of a writing requirement allows all relevant information into evidence even if it contradicts the written documentation."[22]

8. It is up to those presiding over the tribunal to determine -- within the parameters of the procedural rules of the forum -- how to evaluate the evidence presented by the parties.[23] It is on this basis that one court stated that even though the Convention allows the performance of the contract to be proved by means of witnesses, it is up to the court to determine whether hearing witnesses is helpful at all.[24] A different court[25] stated that a judge may attribute more weight to a written document than to oral testimony.

9. For comments on the applicability of the parol evidence rule under the Convention, see the Digest for article 8.[26]

Limits to the principle of freedom from form requirement

10. "Article 11's elimination of formal writing requirements does not apply in all instances in which the [Convention] governs".[27] According to article 12, the rules lead to the law of a State that made an article 96 Convention's elimination of form requirements does not reservation, then the form requirements of that State must apply if one party has its relevant place of business in a be complied with; but if the applicable law is that of a State that made a declaration under article 96.[28] Different Contracting State that did not make an article 96 reservaviews exist as to the effects of an article 96 reservation.[29] tion, the freedom-from-form-requirements rule laid down According to one view, the mere fact that one party has in article 11 would apply, as several decisions have its place of business in a State that made an article 96 stated.[32] According to an opposing view, however, the fact reservation does not necessarily mean that the domestic that one party has its relevant place of business in a State form requirements of that State apply.[30] Under this view,[31] that made an article 96 reservation subjects the contract the rules of private international of the forum will dictate to writing requirements,[33] and the contract can only be what, if any, form requirements must be met: if those modified in writing.[34]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,400 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. See [SWITZERLAND Kantonsgericht Zug 14 December 2009]; [UNITED STATES District Court, Southern District of Ohio 26 March 2009]; [UNITED STATES District Court, Delaware 9 May 2008]; [SLOVAKIA Regional Court Zilina 25 October 2007]; [AMERICAN ARBITRATION ASSOCIATION International Centre for Dispute Resolution, United States, 23 October 2007]; [SLOVAKIA Regional Court in Zilina 18 June 2007]; [HUNGARY Congrád County Court 6 June 2007]; [ITALY Corte di Cassazione 16 May 2007]; [SLOVAKIA District Court in Nitra 9 March 2007]; CLOUT case No. 847 [UNITED STATES District Court, Minnesota 31 January 2007]; [UNITED STATES District Court, Southern District of New York 23 August 2006]; [SLOVAKIA District Court in Nitra 27 June 2006]; [SLOVAKIA District Court in Nitra 17 May 2006]; [SLOVAKIA Regional Court in Banska Bystrica 10 May 2006]; [SLOVAKIA District Court in Nitra 27 February 2006]; [SWITZERLAND Kantonsgericht Freiburg 11 October 2004]; [SWITZERLAND Bundesgericht 4 August 2003]; CLOUT case No. 576 [UNITED STATES Circuit Court of Appeals (9th Circuit) 5 May 2003]; [BELGIUM Cour d'appel de Liège 28 April 2003]; [SWITZERLAND Cour de Justice de Genève 13 September 2002]; CLOUT case No. 537 [AUSTRIA Oberlandesgericht Graz 7 March 2002]; CLOUT case No. 424 [AUSTRIA Oberster Gerichtshof 9 March 2000]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997] (see full text of the decision); CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision); CLOUT case No. 308 [AUSTRALIA Federal Court of Australia, 28 April 1995] (see full text of the decision); CLOUT case No. 137 [UNITED STATES Oregon [State] Supreme Court 11 April 1996]; for similar statements, see 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. See [SWITZERLAND Kantonsgericht Zug 14 December 2009]; [ITALY Corte di Cassazione 16 May 2007]; [NETHERLANDS Rechtbank Arnhem 17 January 2007]; [ITALY Corte di Cassazione 13 October 2006]; [GERMANY Landgericht Bamberg 13 April 2005]; [NETHERLANDS Rechtbank Arnhem 17 March 2004]; [FRANCE Cour d'appel de Grenoble 28 November 2002]; [SWITZERLAND Bundesgericht 15 September 2000].

3. CLOUT case No. 95 [SWITZERLAND Zivilgericht Basel-Stadt 21 December 1992] (see full text of the decision); see also [ITALY Corte di Cassazione 13 October 2006]; [SWITZERLAND Handelsgericht St. Gallen 29 April 2004]; [GERMANY Oberlandesgericht Hamm 12 November 2001].

4. CLOUT case No. 828 [NETHERLANDS Hof 's-Hertogenbosch 2 January 2007]; [UNITED STATES District Court, Southern District of New York 23 August 2006]; [BELGIUM Rechtbank van Koophandel Tongeren 25 January 2005]; [BELGIUM Hof van Beroep Ghent 4 October 2004]; CLOUT case No. 633 [UNITED STATES District Court, Southern District of New York 7 November 2001].

5. CLOUT case No. 330 [SWITZERLAND Handelsgericht des Kantons St. Gallen 5 December 1995].

6. See [UNITED STATES District Court, Eastern District of California 21 January 2010]; [NETHERLANDS Rechtbank Breda 16 January 2009]; [SLOVAKIA District Court in Dolny Kubin 17 June 2008]; [UNITED STATES District Court, Minnesota 16 June 2008]; [SLOVAKIA Supreme Court of the Slovak Republic 27 June 2007]; [SLOVAKIA District Court in Nitra 27 June 2006]; [SLOVAKIA District Court in Nitra 17 May 2006]; [BELGIUM Rechtbank van Koophandel Tongeren 25 January 2005]; CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision); CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision); CLOUT case No. 134 [GERMANY Oberlandesgericht München 8 March 1995]. For an example of a case where an oral contract was held to be valid, see CLOUT case No. 120 [GERMANY Oberlandesgericht Köln 22 February 1994].

7. For this statement, see [BELGIUM Rechtbank van Koophandel Tongeren 25 January 2005]; CLOUT case No. 1017 [BELGIUM Hof van Beroep Ghent 15 May 2002]; CLOUT case No. 134 [GERMANY Oberlandesgericht München 8 March 1995].

8. [SWITZERLAND Kantonsgericht Zug 14 December 2009].

9. Ibid.

10. Ibid.

11. Ibid.

12. See [NETHERLANDS Rechtbank Arnhem 17 January 2007]; [MEXICO Compromex Arbitration 29 April 1996]; CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision).

13. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999]

14. CLOUT case No. 1017 [BELGIUM Hof van Beroep Ghent 15 May 2002]; CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision).

15. [SWITZERLAND Appellationshof Bern 11 February 2004].

16. 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.

17. [UNITED STATES Court of Appeals (3rd Circuit) 21 July 2010].

18. See [UNITED STATES District Court, Southern District of Ohio 26 March 2009]; [SWITZERLAND Kantonsgericht Freiburg 11 October 2004]; [GERMANY Oberlandesgericht Rostock 27 October 2003]; [BELGIUM Cour d'appel de Liège 28 April 2003]; [BELGIUM Rechtbank van Koophandel Veurne 19 March 2003]; [SWITZERLAND Cour de Justice de Genève 11 November 2002]; [BELGIUM Rechtbank van Koophandel Hasselt 22 May 2002]; [BELGIUM Rechtbank van Koophandel Kortrijk 4 April 2001]; CLOUT case No. 330 [SWITZERLAND Handelsgericht des Kantons St. Gallen 5 December 1995]; CLOUT case No. 134 [GERMANY Oberlandesgericht München 8 March 1995].

19. CLOUT case No. 579 [UNITED STATES District Court, Southern District of New York 10 May 2002].

20. See [UNITED STATES District Court, Colorado 6 July 2010]; [UNITED STATES District Court, Southern District of Ohio 26 March 2009].

21. CLOUT case No. 414 [UNITED STATES District Court, Southern District of New York 8 August 2000] (see full text of the decision).

22. [UNITED STATES District Court, Eastern District of Pennsylvania 29 January 2010], at note 6.

23. See [BELGIUM Rechtbank van Koophandel Kortrijk 4 April 2001]; [GERMANY Landgericht Memmingen 1 December 1993].

24. [BELGIUM Hof van Beroep Antwerpen 24 April 2006].

25. [BELGIUM Rechtbank van Koophandel Hasselt 22 May 2002].

26. See paragraphs 22 and 23 of the Digest for article 8.

27. [UNITED STATES Court of Appeals (3rd Circuit) 21 July 2010].

28. See [UNITED STATES Court of Appeals (3rd Circuit) 21 July 2010]; [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995].

29. For a recent overview of the conflicting views, see [UNITED STATES Court of Appeals (3rd Circuit) 21 July 2010].

30. [NETHERLANDS Rechtbank Rotterdam 12 July 2001].

31. See also [UNITED STATES Court of Appeals (3rd Circuit) 21 July 2010]; [NETHERLANDS Rechtbank Rotterdam 12 July 2001].

32. [NETHERLANDS Rechtbank Rotterdam 12 July 2001]; [NETHERLANDS Hoge Raad 7 November 1997]; CLOUT case No. 52 [HUNGARY Fovárosi Biróság 24 March 1992].

33. [UNITED STATES District Court, New Jersey 7 October 2008]; [UNITED STATES District Court, Southern District of Florida 19 May 2008]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 February 2004].

34. [RUSSIA The High Arbitration Court of the Russian Federation 16 February 1998]; [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995].


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