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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217

The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)

Harry M. Flechtner [*]

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There is . . . some evidence that U.S. courts are relatively more willing than are their counterparts in civil law jurisdictions to find that omitting terms from a writing renders them non-binding. In Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc.,[57] the United States Court of Appeals for the Fifth Circuit indicated that the Convention had no effect on the application of the Texas parol evidence rule to a written settlement agreement between parties engaged in international trade. The court held that the parol evidence rule barred evidence of two alleged oral agreements between the parties, even though the written contract contained no merger clause and the alleged oral agreements did not contradict anything in the writing.[58] According to an English summary appearing in UNILEX, in contrast, a German court -- the Oberlandesgericht Hamm -- has asserted a general principle that under the CISG an oral agreement can contradict a written one.[59] The approaches of these two courts to the issue of what effect a writing has on prior agreements omitted from the writing exemplifies a non-uniformity that may well reflect a "homeward trend."

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Go to entire text of Flechtner commentary


* Professor, University of Pittsburgh School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.

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57. 993 F.2d 1178 (5th Cir. 1993).

58. Id. at 1182-83 n.9 (asserting that the court need not determine whether the CISG governed the transaction at issue "because our discussion is limited to application of the parol evidence rule (which applies regardless)"). It should be noted that some U.S. courts and commentators have not adopted the approach taken in the Beijing Metals case, asserting instead that the Convention rejects or, at any rate, substantially modifies the domestic U.S. parol evidence rule. See Filanto S.p.A. v. Chilewich Int'l Corp., 789 F. Supp. 1229, 1238 n.7 (S.D.N.Y. 1992) (stating that "the Convention essentially rejects . . . the parol evidence rule" (citing Article 8(3)); Flechtner, supra note 40, at 156-61 and authorities cited therein.

59. See OLG Hamm, UNILEX No. 19 U 97/91 (Sept. 22, 1992). On the particular facts before it, the court found insufficient proof that a contradictory oral agreement existed. Id.

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

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