ANNOTATED TEXT OF CISG
Preamble

EDITOR: Albert H. Kritzer

Opinions differ as to the legal importance of this Preamble.

• Article 31(2) of the 1969 Vienna Convention on the Law of Treaties indicates that the preamble to a treaty can be relevant to the interpretation of a treaty.

• Schlechtriem, however, states that "[this] preamble . . . refers to the public international law obligations and goals of the signatory states and may not be used for the interpretation and gap-filling of the substantive legal provisions. Peter Schlechtriem, Uniform Sales Law (Manz: Vienna 1986) 38 n.111. Evans states: "It should be borne in mind that the character of the [CISG] is essentially technical and that rules of interpretation are already to be found in Article 7(1). In consequence, the scope for interpretation in the light of the Preamble may not be very wide." Malcolm Evans, in: Bianca/Bonell eds., Commentary on the International Sales Law (Guiffrè: Milan 1987). Click here for complete text of Evans' comments. Honnold minimizes the significance of the Preamble because of its legislative history. He states: "UNCITRAL did not prepare a preamble nor was this matter considered by the committees of the Vienna Conference that considered the Convention's substantive provisions. Instead, a preamble was first considered and prepared by the Drafting Committee on April 9, two days before adjournment of the Conference; by this time discussion of the Convention's substantive provisions had been completed. On April 10 the Drafting Committee's proposal was adopted by the Conference Plenary without substantive discussion. At this point only formalities remained and the Conference adjourned on April 11. Under these circumstances the Preamble serves as a hortatory statement of reasons for accepting the uniform law but can hardly be given weight in construing its provisions. The Convention sets forth the rules for interpreting its provisions (Art. 7). Article 7 and the other provisions of the Convention were discussed at length in UNCITRAL and at the Diplomatic Conference; the Preamble scarcely provides a basis for modifying the understandings embodied in the Convention's provisions." John O. Honnold, Uniform Law for International Sales (Kluwer 1999) 541 [citations omitted].

• On the other hand, Lookofsky states that even though "the Preamble was first considered and prepared two days before the adjournment of the Vienna Conference ... the Preamble still seems compatible with the international treaty interpretation mandated by Article 7." Joseph Lookofsky, The 1980 United Nations Convention on Contracts for the International Sale of Goods, in: Blainpain, gen. ed., International Encyclopaedia of Laws - Contracts , Kluwer Law International, Suppl. 29 (December 2000) p. 18. And acknowledging that "[t]he preamble of the Convention, which was drafted at the diplomatic conference, was not the subject of substantive discussion", and that "[t]his might be an indication that no particular importance was attached to it", Enderlein & Mascow state: "It would, however, be inappropriate to dismiss the preamble from the start as insignificant from a legal point of view. The principles it contains can be referred to in interpreting terms or rules of the Convention, such as the terms of 'good faith' (Article 7(1)) or the rather frequent and vague term 'reasonable'. It could also be used to fill gaps because those principles can be counted among, or have an influence on, the basic rules underlying the Convention Article 7(2)). The spirit of the preamble should also be taken account of when agreed texts of sales contracts are to be interpreted [see Words and phrases, below, for an elaboration upon this point of view]." Fritz Enderlein & Dietrich Maskow, International Sales Law (Oceana 1992) 19-20 [citations omitted]. Grigera Naón appears to agree and Kastely, like Enderlein & Maskow, draws on the Preamble to "inform" other provisions of the CISG. Horacio A. Grigera Naón, The UN Convention on Contracts for the International Sale of Goods, in: Horn/Schmittoff eds., The Transnational Law of International Commercial Transactions: Studies in Transnational Economic Law (Kluwer 1982) 92; Amy H. Kastely [U.S.], "Unification and Community: A Rhetorical Analysis of the United Nations Sales Convention, 8 Northwestern Journal of International Law and Business 574-622

In certain jurisdictions, e.g., the United States, the legislative process is such that additions to Bills are from time to time inserted at the last moment with minimal discussion by the legislators, yet when the Bill is enacted, such provisions have the same force of law as other provisions. Similarly, this Preamble has the same force of law as the other provisions of the Convention. Even so, Enderlein & Maskow point out that different jurisdictions regard preambles differently. They state: "Opinions differ in the legal systems as to the legal importance of preambles. In the Eastern European countries preambles, in general, define in a binding way the social function of the perspective legal act. That definition is then decisive when it comes to interpreting such act. In common law countries, however, where skepticism prevails in regard to general principles, they play a negligible role. . . ." Fritz Enderlein & Dietrich Maskow, op. cit.

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