Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28
Peter Schlechtriem [*]
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Article 13, which was enacted in response to a motion of the FRG, was intended to ensure that even in case of parties in reservation states or a clause requiring "writing", conclusion, rescission or modification of the contract by telegraph or telex will be sufficient. This Article, however, is widely misunderstood as being only a definition of the term "writing" used in a few provisions of the Convention dealing with agreements in writing, such as Art. 29(2). Such a restriction of this provision would, to say the least, be contrary to the intentions of its drafters who wanted to see a communication by telegraph or telex as sufficient as "writing" for all cases where a form requirement would apply. Article 13, in other words, was intended to be a uniform provision for the form requirement "writing", whatever its source may be.
But Art. 13 poses another interesting problem. When this norm was drafted, communication by fax was almost unknown in Europe and therefore not mentioned in this provision. Let us assume that the contract itself requires modifications to be made in writing. Would a modification using faxes be acceptable under Art. 29(2) which requires that a written contract requiring any modification by agreement to be in writing? I think that this problem is one that can be solved on the basis of the gap-filling provision found in Art. 7(2). Since fax was unknown when the Convention was drafted, there is an internal gap to be filled according to the general principles on which the Convention is based. Article 13 contains such a principle. Electronic means of communication fulfill the writing requirement if they lead to a printed and material text which the parties can put into their files, submit to their superiors, to government boards or to tax authorities. Most importantly, it can serve as evidence which is as reliable as a telegram or telex. Therefore, I think that a fax could be brought under Art. 13 and would be sufficient as a "writing".
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* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.
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54. Loewe, supra note 7, Art. 13, at 38; Enderlein/Maskow/Stargardt, supra note 7, Art. 13; Bianca/Bonell/Rajski, supra note 18, Art. 13 § 3.1; M. Wey, supra note 18, § 483 et seq.; Bydlinski, supra note 35, at 83.
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