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2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 12 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Sphere of application and effects]

Article 12

Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article.

INTRODUCTION

1. Some States consider it important that contracts and related matters -- such as contract modifications, consensual contract terminations, and even communications that are part of the contract formation process be in writing. Articles 12 and 96 of the Convention permit a Contracting State to make a declaration that recognizes this policy: a reservation under article 96 operates, as provided in article 12, to prevent the application of any provision of article 11, article 29 or Part II of the Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing where any party has his place of business in that Contracting State.[1] Article 96, however, limits the availability of the reservation to those Contracting States whose legislation requires contracts of sale to be concluded in or evidenced by writing.

2. As provided in the second sentence of article 12, and as confirmed by both the drafting history of the provision [2] and case law, article 12 -- unlike most provisions of the Convention -- cannot be derogated from.[3]

Sphere of application and effects

3. Both the language and the drafting history of article 12 confirm that, under the provision, an article 96 reservation operates only against the informality effects of article 11, article 29, or Part II of this Convention; thus article 12 does not cover all notices or indications of intention under the Convention, but is confined to those that relate to the expression of the contract itself, or to its formation, modification or termination by agreement.[4]

4. Article 12 provides that the Convention's freedom from-form-requirements principle is not directly applicable where one party has its relevant place of business in a State that made a declaration under article 96,[5] but different views exist as to the further effects of such a reservation. According to one view, the mere fact that one party has its place of business in a State that made an article 96 reservation does not necessarily bring the form requirements of that State into play;[6] instead, the applicable form requirements -- if any -- will depend on the rules of private international of the forum. Under this approach, if PIL rules lead to the law of a State that made an article 96 reservation, the form requirements of that State will apply; where, on the other hand, the law of a contracting State that did not make an article 96 reservation is applicable, the freedom-from-form-requirements rule of article 11 governs.[7] The opposing view is that, if one party has its relevant place of business in an article 96 reservatory State, writing requirements apply.[8]


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_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

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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 1,200 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. For this statement, albeit with reference to the draft provisions contained in the 1978 Draft Convention, 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 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: Since the requirement of writing in relation to the matters mentioned in article 11 [draft counterpart of the Conventions article 12] is considered to be a question of public policy in some States, the general principle of party autonomy is not applicable to this article. Accordingly, article 11 [draft counterpart of the Conventions article 12] cannot be varied or derogated from by the parties.

3. [FRANCE Cour d'appel Paris 6 November 2001 (Cables case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)], expressly stating that article 12 as well as the final provisions cannot be derogated from (see full text of the decision).

4. 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.

5. See [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995 (Frozen raspberries case)].

6. [NETHERLANDS Rechtbank Rotterdam 12 July 2001 (Lemons, mandarins, oranges case)].

7. [NETHERLANDS Rechtbank Rotterdam 12 July 2001 (Lemons, mandarins, oranges case)]; [NETHERLANDS Hoge Raad 7 November 1997 (Vodka case)]; [HUNGARY Fovrosi Birosag Hungary 24 March 1992 (Adamfi Video v. Alkotók Studiósa Kisszövetkezet)].

8. [RUSSIA High Arbitration Court of the Russian Federation 16 February 1998 (Onions case)]; [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995 (Frozen raspberries case)].


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