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ANNOTATED TEXT OF CISG
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.

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Commentary on agency, administrative
law, and on government contract issues
*

The legislative history of the Convention contains the following Secretary-General report:

"It may . . . be noted that the Law does not attempt to codify or supersede national rules on the authority of an agent to bind his principal. To illustrate this point, we may suppose that at the beginning of a negotiation, the principal notifies the other party as follows: 'The agent negotiating with you has no authority to conclude an agreement; any contract will be authorized only when it has been approved in writing by our Vice-President in charge of Sales'. Unless this notice is withdrawn or modified, there would be a presumption that, unless the contract is concluded in the prescribed manner, (1) there was no intent to conclude a contract and (2) any attempt by the subordinate negotiator to conclude a contract would be unauthorized and would not bind the principal. It will be noted that both of the above issues (which in practical application are closely intertwined) lie outside the scope of the present Law, and would not be controlled by the rule of [article 11]. [Article 11], in stating that there is no general legal requirement of a writing, does not affect the inference in some settings that a contract has not been made in the absence of a writing and does not overturn applicable rules as to whether an agent has authority to bind his principal. The latter point would seem to be particularly significant where a Government, by rule of law, defines the circumstances in which a subordinate official has the authority to bind the Government or a State trading organization."[1]

Schlechtriem states:

"CISG [is] based on the principle of freedom of form. In the case of the transactions of some office-holders such as mayors or district administrators, however, national legislatures - as in the Federal Republic of Germany, for instance - may pass rules of public law or administrative law according to which all sales contracts concluded by such office-holders must be made out in writing in order to facilitate control by a superior supervising authority. If the mayor of a German community purchases typewriters or office equipment from a Dutch firm, it is an open question whether those special public rules on the written form are set aside by art. 15 ULIS or art. 11 CISG. In my opinion, this can basically be assumed, since the domestic characterization of a matter as pertaining to private law, administrative law or public law does not preclude its classification as 'matter governed by this Convention', to which the uniform law alone applies.

"This example does show, however, how shaky the application of the uniform sales law still is in such cases: the German doctrine of administrative law dictates that such rules that bind mayors and other office-holders to observe certain form requirements when concluding contracts, are classified not just as formal rules, but also as issues of the power of agency; if such is the case, the mayor has the authority to make such contracts only if they are in writing. Problems of agency, however, do not fall under the Convention.

"Thus, the decisive question is whether the classification as either a problem of form, which would be governed by the uniform law, or a problem of agency to which domestic law applies, is itself determined by uniform or national law of the lex fori. . . .The case of the German mayor is but the tip of an iceberg of parallel problems: in a number of countries, sales contracts by public authorities are subject to special legal regulations that do not just provide for the form but also for the contents of such contracts - army procurement contracts are an example. In all these cases, the question arises as to whether such special public law rules for sales contracts by the State and its authorities are pushed aside by the uniform sales law - which in this author's view would be the most adequate solution - and whether national courts would really respect the prevalence of uniform law.

"The decisive question . . . is which issues are 'matters governed by this Convention'. 'Matters' are those legal issues that in essence fall within the purview of the uniform sales law regardless of their classification and characterization according to national law. Whether a given issue is a matter of sales law or not should be decided on the basis of a characterization detached from any particular national law and committed to the goals formulated in art. 7(1) CISG. This should not only allow for formal requirements to be classified as such (and not as problems of agency), but should also safeguard the priority of the uniform law even over national special laws for the State and its organizations as buyer or seller.[2]

Honnold states:

"Contracts for the purchase of supplies for a government present special problems of administration, such as the authority of government employees to create financial obligations for the public, and the possibility of favoritism, waste and fraudulent claims to public funds. As a consequence, legislation may impose special requirements for the approval, manner of execution and form for procurement contracts made by governmental units. . . . Sales of government property, such as agricultural commodities acquired under a price support program, often pose fewer governmental problems and may be subject to fewer or no special regulations; the same may be true of contracts made by publicly owned corporations that perform functions such as the supply of electricity or transport. . . . Article 4(a) . . . states that 'The Convention is not concerned with . . . the validity of the contract'. The fact that a law states a formal requirement in terms of 'validity' does not necessarily preserve the requirement from being overridden by Article 11; in this and many other settings achieving the Convention's central goal of uniform application (Art. 7 . . .) requires that the relationship between the Convention and domestic law be decided on the basis of the substance of the domestic rule rather than its form. Thus, it would be necessary to consider whether the law in question was addressed to a special problem posed by government procurement; if so, the law probably should not be affected by Article 11. Formal requirements that are applicable only to government procurement or that are more strict than for comparable private contracts probably should be unaffected by Article 11. This conclusion would also be supported by applicability of the government's regulations to procurement contracts made and performed abroad, and circumstances showing special needs for formal requirements in government contracting. . . ."[3]


FOOTNOTES

* This commentary is taken from Albert H. Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (Kluwer Law International), Suppl. 7, September 1993, Detailed Analysis 113-114.

1. UNCITRAL Yearbook VI, A/CN.9/SER.A/1975, para. 77, p. 96; John O. Honnold, Documentary History of the Uniform Law for International Sales (Kluwer Law International 1989) 221.

2. Peter Schlechtriem, Unification of the Law for the International Sale of Goods, in: German National Reports (Private Law and Civil Procedure) XIIth International Congress of Comparative Law (Baden-Baden: Nomos 1987) 126-127.

3. John O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention, 2d ed. (Kluwer Law International 1991) 185-186.


Pace Law School Institute of International Commercial Law - Last updated January 15, 2014
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