Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 5 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 5 [draft counterpart of CISG article 6].
To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the
closest counterpart to an Official Commentary on the
CISG. A match-up of this article of the 1978 Draft with
the version adopted for the Official Text is necessary to
document the relevancy of the Secretariat Commentary on
this article. See the match-up for this article for a
validation of citations to this Secretariat Commentary.
This match-up indicates that article 5 of the
1978 Draft and CISG article 6 are substantively
Text of Secretariat Commentary on article 5 of the 1978 Draft
[draft counterpart of CISG article 6] [Exclusion, variation or derogation by the parties]
PRIOR UNIFORM LAW
ULIS, article 3, ULF, article 2. Prescription Convention, article 3(3).
1. The non-mandatory character of the Convention is explicitly stated in article 5 [draft counterpart of CISG article 6]. The parties may exclude its application entirely by choosing a law other than this Convention to govern their contract. They may also exclude its application in part or derogate from or vary the effect of any of its provisions by adopting provisions in their contract providing solutions different from those in the Convention.
2. The second sentence of ULIS, article 3, providing that "such exclusion may be express or implied" has been eliminated lest the special reference to "implied" exclusion might encourage courts to conclude, on insufficient grounds, that the Convention had been wholly excluded (OFFICIAL RECORDS, p. 17).
[The UNCITRAL legislative history contains the following elaboration: "Some representatives were concerned lest the special reference to 'implied' exclusion might encourage courts to conclude, on insufficient grounds, that the Law had been wholly excluded. Other representatives were of the opinion that there was no ground for such concern, but agreed to the deletion of the second sentence since the Law does not ordinarily attempt to establish special rules for construing agreements" (UNCITRAL Yearbook II, A/CN.9/SER.A/1970, p. 55, para 45; Honnold, DOC'Y. HIST., p. 61).]