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Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28

excerpt from

Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany

Peter Schlechtriem [*]

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Article 29 allows the modification or termination of the contract by agreement. This rule is obvious to a German lawyer, but it is of some importance for the Common Law lawyer because the modification which relieves one party of a part of its obligation does not require consideration or "good faith" according to comment 2 to Art. 2-209 of the U.S. UCC. In addition, Art. 29 has to be interpreted as meaning that such a modification or termination must comply with the provisions for the conclusion of the contract. In other words, the uniform rules for the conclusion of the contract also apply to its modification or termination. In order to determine what rule governs a modification or termination of the contract, reference to domestic law by way of private international law is not necessary. This question caused some difficulty under ULIS [59] and is now settled by Art.29. If, however, a state has declined to enact the formation part of the Convention, as Sweden did, the domestic law has to govern the agreement to terminate or modify a ClSG-contract, although Art. 29 was enacted as a provision of part III of the Convention.

Article 29 (2) deals with the situation where the parties have agreed on writing or another form and then are bound even in case of modification or termination of the contract by their own form requirement. Under German law they can orally abolish the form requirement and then modify the contract.[60] This solution was not accepted in Vienna, but the same results will probably be reached by the estoppel solution in Art. 29(2)(2), which was influenced by Art. 2-209 (4),(5) UCC.

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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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59. OLG Hamburg RIW 1982, 435; OLG Hamm 14.11.1983 in: Schlechtriem/Magnus, supra note 5, Art. 8 EKG no. 8; but see OLG Oldenburg 27.4.1982 in: Schlechtriem/Magnus, supra note 5, Art. 8 EKG no. 4; LG Marburg 24.5.1984 in: Schlechtriem/Magnus, supra note 5, Art. 8 EKG no. 14.

60. RGZ 95, 175; BGH NJW 1968, 33; BAG NJW 1989, 2149.

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

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