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The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.
1. The principle of freedom of contract enshrined in article 6 proceeds from the consensual nature of the contract of sale and also appears in the provincial Acts. [e.g., OSGA 55, cf. UCC 1-102(3)]. CISG differs from modern sales legislation in so far as it imposes no restrictions, other than as provided in art. 2, on the parties' freedom to exclude the provisions of the Convention. (Cf. UCC 2-302, and s. 55 of the U.K. Sale of Goods Act as am. by the Supply of Goods (Implied Terms) Act 1973, and the Unfair Contract Terms Act, 1977).
2. Art. 6 raises an important and difficult question of exegesis. Does it permit the exclusion of obligations imposed under the Convention, however basic, even though such a disclaimer would be treated as unconscionable, and therefore unenforceable, under the applicable municipal law? Would this be a question of validity within art. 4 or would art. 6 take priority? The [Secretariat] Commentary throws no light on these issues.
3. It is not clear what language will be deemed sufficient "to exclude the application of this Convention"? Is a choice of law clause (e.g., "this contract shall be governed by the law of British Columbia") sufficient or must the clause also indicate that the domestic law of the chosen forum is intended to be applied? The [Secretariat] Commentary, p. 44, explains that art. 6 is intended to discourage exclusion of CISG by implication and this suggests that any doubt should be resolved in favour of the applicability of the Convention.
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