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ANNOTATED TEXT OF CISG
Article 96

A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that 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 that State.

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Commentary on Article 96 declarations *

Effect of an Article 96 declaration

The general rule to recognize when dealing with parties from any country that has made an Article 96 declaration is that you can encounter a validity objection unless you comply with the domestic requirements as to form.

When a Contracting State has made an Article 96 declaration, some commentators believe that its requirements as to form will always be preserved. Others are of the opinion that the answer turns on principles of conflict of laws of the forum: if they point to the law of a non-writing State, no writing will be necessary despite the existence of an Article 96 declaration. Schlechtriem states:

"Take, for example, a sales contract between a German seller and a Russian buyer. [Russia] has made the Article 96 reservation. Under the first opinion, the contract has to conform to the requirements of Russian law. Under the second opinion, the rules of private international law of the forum state have to be consulted concerning which domestic law is applicable. If, for example, in a German court the conflict of law rules lead to German law, the contract would be valid regardless of the Russian form requirements."[1]

When, however, the contract is between parties, neither of whom has his relevant place of business in a Contracting State that has made an Article 96 declaration (e.g., between a party who has his relevant place of business in the United States and a party who has his relevant place of business in France), and the contract does not contain its own "Statute of Frauds", no Statute of Frauds should apply. Caveat: This does not mean that formality requirements associated with agency, administrative law or government contract issues are necessarily superseded by the CISG. For further information on these matters, go to the commentary on this subject contained in the Annotated Text of Article 11.

Scope of an Article 96 declaration

Article 96 declarations only apply to Article 11, Article 29 or Part II of the Convention (Formation of the Contract).[2] Schlechtriem states:

"Even when Contracting States make use of the reservation in Article 96, domestic requirements on form are only to be regarded . . . as far as they relate to the formation of the contract, its modification or consensual termination. [The] precise formulation [contained in Articles 12, 29 and 96] 'its modification or termination by agreement' makes it clear that a one-sided declaration to terminate a contract does not fall within the scope of the reservation and the corresponding domestic regulations on form . . . nor does a declaration to reduce the price according to Article 50 sentence 1. . . . [N]otification of defects, the fixing of time limits, and other communications are, therefore, not subject to form requirements, even when, on the basis of the Article 96 reservation, the contract, in principle, is subject to domestic form regulations which require that such communications adhere to formal writing requirements."[3]

Rajski provides a similar assessment of what he terms the Convention's "informality principle".[4]


FOOTNOTES

* This commentary is derived from an adaptation of Albert H. Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (Kluwer Law International), Suppl. 10, July 1994, Detailed Analysis 118-119.

1. Peter Schlechtriem, "Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany" in "Särtryck", Juridisk Tidskrift vid Stockholm Universitet, Årgång 3NR 1/1991-92, p. 17. In support of the first opinion, he cites Enderlein/Maskow/ Stargardt, Kaufrechts-konvention der UNO (mit Verjährungskonvention), Art. 96 §4; and Reinhart, "UN-Kaufrecht", Kommentar zum Übereinkommen der Vereinten Nationen vom 11. April 1980 über den internationalen Warenkauf (Heidelberg 1991), Art. 12 §3 (id. at n. 52). Application of the first opinion, Ziegel points out "would create difficulties where the states of two or more contracting parties have filed declarations and their domestic writing requirements are not the same. Will they all have to be complied with?" ("Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods (July 1981), p.53). In support of the second opinion, Schlechtriem cites Herber in Caemmerer/Schlechtriem, Kommentar zum Einheitichen UN-Kaufrecht (München 1990), Art. 96 §3; Herber/Czerwenka, Internationales Kaufrecht (Munchen 1991), Art. 96 §3; Rajski, [Bianca-Bonell Commentary, p. 127]; and Wey, Der Vertragsabschluss beim internationalen Warenkauf nach UNCITRAL und schweizerischem (Diss. Basel 1984), §473 et seq. (id. at n. 53). Elsewhere, Schlechtriem evidences his support for the second opinion (Peter Schlechtriem, Uniform Sales Law [hereinafter Schlechtriem Commentary] (Manz: Vienna 1986) 46-47). Also in support of the second opinion are John O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention, 2d. ed. (Kluwer Law International 1991) 129; Joseph Lookofsky, "The 1980 United Nationals Convention on Contracts for the International Sale of Goods", in: International Encyclopaedia of Laws, Blanpain, gen. ed. (Kluwer 1993), p. 48 and Sara G. Zwart, "The New International Law of Sales: A Marriage Between Socialist, Third World, Common, and Civil Law Principles", 13 N.C.J. Int'l L. & Com. Reg. 116-117 (1988).

To illustrate possibly unexpected consequences an Article 96 declaration may lead to, Joseph Lookofsky will remark as follows in the 2d edition of his text Understanding the CISG in Scandinavia (expected to be published in the fall of 2002):

"The effect of an Article 96 reservation has been well-illustrated by Professor Flechtner in 17 Journal of Law and Commerce (1998) 187-212: 'Assume a party located in the United States and a party located in Argentina orally agreed to a sales contract. Because Argentina has made the Article 96 reservation, the provisions of Articles 11 and 29 dispensing with any writing requirement are called off by Article 12. That does not, however, mean that the transaction is subject to a writing requirement. The resolution of that issue will depend on a choice of law analysis. If private international law principles lead to the application of Argentinian law, the writing requirements of Argentinian domestic sales law will apply. If the rules of private international law designate U.S. law, then the writing requirements of U.S. domestic sales law will apply. The result in the latter situation is rather ironic. Because one party to the sale is from Argentina and Argentina has made an Article 96 reservation, the transaction becomes subject to the domestic U.S. Statute of Frauds requirements [see UCC § 2-201 which require certain sales transactions to be in writing]. And this is the case, even though the United States, by failing to make an Article 96 declaration, in effect declared its willingness to forego its Statute of Frauds rules and accept oral international sales contracts'." http://www.jur.ku.dk/obligationiionsret/UCISGinScan.rettelser.2001.pdf (date visited 23 November 2001).

See also Winship who states: "The proposed revision of the 1955 Hague conflicts convention …allows a State to declare it will not be bound by the rues of private international law with respect to issues of form, which suggests that proponents [of the Article 96 reservation (the USSR was the principal supporter of this reservation)] believe that the formal rules of a declaring State determine whether an agreement with a trade organization in that State is enforceable. . . ." (Peter Winship, The Scope of the Vienna Convention on International Sales Contracts, in: Galston/Smit eds., International Sales (Matthew Bender: NY 1984) 1-47/48). Schlechtriem elaborates as follows: "Since Article 565 of the Civil Code of the USSR mandates application of USSR law on form requirements in all foreign trade transactions, it can be assumed that Russian courts will always require contracts to be in writing" (Schlechtriem Commentary 46 n.142).

See also John O. Honnold, Uniform Law for International Sales, 3rd ed. (Kluwer 1999) 139-140. Although the 2nd edition of Honnold's text is cited above in support of Schlechtriem's second opinion, Honnold states in his 3rd edition: "Even though conflicts rules point to State S, which does not require a writing, this writer now (contrary to his earlier opinion) suggests that State S should dismiss S's suit . . . This about-face results from this combination: (1) 'any party' could refer to the application of Article 12 to both parties to the transaction, and (2) the acceptance by the Convention of the need, felt by some States, for protection against claims unsupported by a written agreement."

2. Cf. China whose declaration on this point simply reads: "The People's Republic of China does not consider itself to be found by . . . Article 11 as well as the provisions in the Convention relating to the content of Article 11." Logan states: "The problem this reservation presents is [that] the Convention provides for a reservation to article 11 but it is to be made pursuant to article 96 . . . . The end result of the Chinese reservation to article 11 rather than article 96 is to narrow the restrictions on contract formation. Instead of requiring all elements of contract formation to be in writing as is the case under articles 96 and 12 . . . China's reservation appears to only require that contracts 'be concluded in or evidenced by writing' . . . This would mean that all aspects of a transaction may be oral to the extent allowed under the Convention except the resultant contract of sale . . . ." ("The People's Republic of China and the United Nations Convention on Contracts for the International Sale of Goods: Formation Questions", 5 China L. Rep. 63 (1988); see also pages 64-73 of Logan's commentary). Reiley & Fu, on the other hand, state: "the full impact of China's reservation is not clear . . . it could mean only provisions relating to contract formation or it could mean all provisiions relating to a writing requirement" ("Doing Business in China after Tiananmen Square: The Impact of Chinese Contract Law and the UN Convention on Sale of Goods in Sino-American Business Transactions", 24 U. San Francisco L. Rev. 54 n. 88 (1989).

3. Schlechtriem Commentary, supra note 1 at 45.

4. Jerzy Rajski, in: Bianca/Bonell Commentary on the International Sales Law (Giuffrè: Milan 1987) 126.


Pace Law School Institute of International Commercial Law - Last updated April 10, 2014
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