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Reproduced with permission from 23 International Lawyer (1989) 443-483

excerpt from

Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods

Alejandro M. Garro [*]

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Role of Consideration

The Convention does not mention the doctrine of consideration This omission is deprived of any significance because (1) a sale is an onerous transaction, where "consideration" is supplied by the exchange of promises to deliver and to pay; and (2) a challenge to the enforceability of a promise for lack of consideration is an issue of "validity" dehors the scope of application of the Convention, hence remitted, under conflict rules, to the applicable national law.[44] It could be argued that the doctrine of "consideration" is neglected by article 29(1), providing that the mere agreement of the parties suffices to modify or terminate a contract. At common law, when an agreement to modify a contract merely increases or reduces the obligations of one of the parties, the agreement may be unenforceable since it is not supported by "consideration" -- i.e., by an act or promise given in exchange for the new promise.[45] Civil law systems impose no comparable restriction, hence delegates from civil law countries did not object to article 29(1). Nor did the common law delegates object, because common law restrictions on the parties' ability to adapt their transaction to new circumstances had already generated pressure for modifications of the traditional common law rule.[46]

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* Alejandro M. Garro, Lecturer in Law, Columbia University. This paper was submitted to the 81st Annual Meeting of the American Association of Law Libraries, June 26-29, 1988.

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44. Convention, supra note 3, art. 4(a). For comments on the Convention and the doctrine of consideration, see Date-Bah. The United Nations Convention on Contracts for the International Sale of Goods, 1980: Overview and Selective Commentary, 11 Rev. Gh. L. 50, 59 (1979); Eörsi, supra note 30, at 316; Lansing & Hauserman, A Comparison of the Uniform Commercial Code to UNCITRAL's Convention on Contracts for the International Sale of Goods, 6 N.C. J. Int'l L. & Com. Reg. 63, 78-79.

45. J. Honnold, Uniform Law, supra note 13, at 229.

46. The Uniform Commercial Code (UCC) upholds contract modifications without consideration. See U.C.C. 2-209(1) (1977) (a modification needs no consideration to be binding). See generally J. Honnold, Uniform Law, supra note 13, at 202.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999

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