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Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199

THE INTERPRETIVE CHALLENGE TO UNIFORMITY

excerpts from review of

Les premières applications jurisprudentielles du droit uniforme de la vente internationale

by Claude Witz (L.G.D.J. Paris 1995)

Reviewed by Vivian Grosswald Curran

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Proof of Contract

The CISG runs counter to some national laws in not requiring a writing: "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses."[43] Witz notes in particular the contrast between Article 11 and the common law parol evidence rule (p. 71), according to which the writing is deemed to set forth the entire agreement and intent of the parties. Witz notes that the parol evidence rule is incompatible with both CISG Articles 11 and 8 section 3. Article 8(3) provides that, "[i]n determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."

Two U.S. decisions have reached contradictory results with respect to whether the CISG excludes the parol evidence rule [Filanto v. Chilewich (U.S. District Court) 14 April 1992 and Beijing Metals v. American Business Center (U.S. Circuit Court of Appeals) 15 June 1993]. [44] The Filanto court held that the CISG excluded the parol evidence rule. The following year, however, the Fifth Circuit held to the contrary in Beijing Metals, a case in which the parol evidence rule was dispositive of the outcome. Despite Article 11's seemingly clear implication that a contract cannot be disregarded solely on the basis that its formation was oral, the court held that the parol evidence rule applied independently of whether the CISG applied (p. 72).[45]

Witz does not mention the additional potential for conflict between Article 11 and the Statute of Frauds, which, under the Uniform Commercial Code, prevents the enforcement of contracts for the sale of goods where the price exceeds $500, unless the party against whom the claim is brought has signed a writing. A recent Oregon case has considered this issue in which the court held Oregon's U.C.C. section 2-21(2) to bar a claim based on an oral contract, unless the CISG was applied [GPL Treatment v. Louisiana Pacific Corp. 12 April 1995]. [46]

Commentators currently are divided between two views of the effect of Article 11. According to one view, the second sentence of Article 11 ("It [i.e., the sales contract] may be proved by any means, including witnesses") nullifies any rule purporting to hierarchize methods of proof (p. 73).[47] According to the second view, if following national procedure would mean that a contract cannot be proven, because national procedure bars the only method capable of proving contract, then CISG Article 11 takes precedence. National law is excluded because it would for all intents and purposes otherwise function as substantive law. Conversely, however, if the national rule in question would merely facilitate proving the contract, without preventing proof by other means, then the national rule remains in effect (p. 73) [LG Memmingen 1 December 1993]. [48]

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FOOTNOTES

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43. CISG Article 11.

44. Filanto v. Chilewich, 789 F.Supp. 1229 (S.D.N.Y. 1992), aff'd, 984 F.2d 58 (2d Cir. 1992); Beijing Metals and Minerals Import/Export Corp. v. American Business Ctr., Inc., 993 F.2d 1178 (5th Cir. 1993).

45. For more detailed analyses of the CISG and the parol evidence rule, see Ronald A. Brand & Harry M. Flechtner, Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Convention, 12 J.L. & Com. 239 (1993); and Harry M. Flechtner, More U.S. Decisions on the U.N. Sales Convention: Scope, Parol Evidence, "Validity" and Reduction of Price Under Article 50, 14 J.L. & Com. 153 (1995).

46. GPL Treatment, Ltd. v. Louisiana Pacific Corp., 894 P.2d 470 (Or. App. 1995), rev. granted, 898 P.2d 770 (Or. 1995). This case is the subject of another article in this volume [Flechtner, 15 Journal of Law and Commerce (1995) 127-138].

47. Witz cites to Herber, Czerwenka, Neumayer and Ming as commentators who articulate this thesis (p. 73 n.52).

48. Witz cites Schlechtriem and van Caemmerer in support of this position (p. 73 n.53) and notes that at least one German court has adopted this second view. See LG Memmingen, 01-12-1993, IRPrax 1995, obs. Clemens Ranker (p. 73 n.51).

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Pace Law School Institute of International Commercial Law - Last updated June 2, 1999
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