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

Digest of Article 13 case law [reproduced with permission of UNCITRAL] [*]

Article 13

For the purposes of this Convention “writing” includes telegram and telex.

OVERVIEW

1. The purpose of article 13 of the Convention, which is based on article 1(3)(g) of the 1974 Convention on the Limitation Period in the International Sale of Goods, is to ensure that communications taking the form of a telegram or telex are treated as “writings”,[1] and thus (in their form) can satisfy applicable writing requirements if such exist.[2] According to one court,[3] the definition of “writing” under article 13 is flexible enough to also include email and other electronic means of communication.

2. According to one court, where the parties themselves agreed on what is to be understood as “writing”, the agreed-upon definition prevails.[4] That same court also stated that, in order to interpret the parties' agreement as to form, resort is to be had to the interpretive criteria set forth in article 8 of the Convention.[5]

Application

3. The provision has rarely been resorted to in case law. One court, in deciding whether avoidance of a lease contract via telefax met a writing requirement in applicable domestic law, stated that, had the Convention governed, the telefax would be considered sufficient on the basis of article 13; but the court also held that article 13 applied only to international sales contracts, and should not be extended by analogy to leases or other non-sales contracts.[6] The same court later reaffirmed its view that article 13 should not be applied by analogy, reasoning that the provision contains an exception and that exceptions must be interpreted restrictively.[7]

4. A different court[8] stated that where the parties have agreed that their contract must be in writing, this requirement is met where the contract meets the definition of “writing” as defined under article 13. That court also stated that where the parties agree on a writing requirement, that requirement constitutes a validity requirement rather than a requirement for the sole purpose of proving the contract.


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:

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1. For a reference to the text of article 13 of the Convention, see [SLOVAKIA District Court in Komarno 24 February 2009].

2. See [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 25 November 2002] (relating to telefax communication); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, 28 April 1995] (referring to telex communications).

3. [EGYPT Supreme Court 11 April 2006].

4. [AUSTRIA Oberlandesgericht Innsbruck 18 December 2007].

5. Ibid.

6. See [AUSTRIA Oberster Gerichtshof 2 July 1993].

7. [AUSTRIA Oberster Gerichtshof 26 April 1997].

8. [SWITZERLAND Kantonsgericht Zug 14 December 2009].


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