UNCITRAL Digest of Article 11 case law

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Consequently, domestic rules requiring a contract to be evidenced in writing in order for it to be enforceable are superseded; one court, for instance, stated that “[u]nder the CISG, evidence of the oral conversations between [seller] and [buyer], relating to the terms of the purchase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>].