Preface, Preliminary Remarks, The Structure and the Main Features of the 1980 Convention, Limitation Period, Final Remarks

Published: Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods. 1986.

Verlag Manz, Wien

Comments on specific articles of the CISG are provided in the context of the convention's article-by-article breakdown. This is the commentary for Article 1.

Year: 1986.

The short report presented here is a translation of my book Einheitliches UN-Kaufrecht, published in 1981 by J. C. B. Mohr (Paul Siebeck) Publishing House in Tübingen, West Germany. It was originally intended as a source of information for German jurists, but foreign colleagues and friends suggested that I have it translated into English in order to make it accessible to jurists of all nations interested in uniform sales law. I decided to follow their advice because I believe that uniformity in the interpretation of the Convention can be promoted if legal scholars throughout the world recognize, discuss, and — if possible — clarify the potential problems before the Convention is applied by the courts. In this process of forming an international consensus, scholars may wish to have access to an interpretation of the Convention from the perspective of German law, a law which has influenced the development of the Convention. In agreeing to have the book translated, I am aware that a scholarly contribution in a language that is foreign to the author can never be formulated quite as convincingly as it can be in his native language.

In the translation I have tried to take into consideration the enormous amount of literature on the 1980 Convention that has appeared since the first publication of the book. I did not strive for completeness, but, nevertheless, I have examined everything to which I had access and have listed what I consulted in the bibliography. Often I have found that the comments of my colleagues reassured me as to my own views, but frequently they forced me to reconsider statements I made in the book. I am greatly indebted to those authors for the insights which enabled me to correct my interpretation. The experiences of the German courts with the predecessor of the Convention, the 1964 Hague ULIS and ULF, are included in the footnotes whenever this appeared to me to be of some benefit to the reader.

This book would not have been possible without the dedication and help of my assistants. I owe special thanks to Ms. Joelen Gates, Mr. Gerhard Dannemann, Ms. Stegemann, Mr. Lührs and Mr. Bond for translating, for checking the footnotes, and for reading the proofs. Mr. Fischer organized the administrative side of the translating and editing of this book; Mrs. Denzlinger patiently typed and retyped the various drafts.

But I am particularly indebted to my dear friend and colleague, Richard Hyland, for his invaluable advice and the tremendous sacrifices he made in a thorough revision of the text, and to the law firm Covington & Burling in Washington, D.C., for their understanding and generous assistance in providing him with secretaries, word-processors, material and working hours for the completion of this work. I can only hope that the efforts that went into the translation are merited by the contents of this book.

Last, but certainly not least, I have to thank my esteemed colleague, Professor Dr. Peter Doralt of the Wirtschaftsuniversität Wien, and Kommerzialrat Dr. Helmut Haschek for editing this little book in their „Schriftenreihe Recht, Wirtschaft und Außenhandel“ and the patient care of the publishing house of Manz, Wien.[page 5]

The United Nations Uniform Law for International Sales discussed in the following pages is the product of a diplomatic conference which was convened in Vienna from March 10 to April 11, 1980 by the Secretary-General of the United Nations, acting upon a resolution of the UN General Assembly from December 16, 1978. The efforts to achieve a uniform law for international sales — a pursuit with a history extending back to the year 1929 and which is closely connected with the name of Ernst Rabel — thereby came to something of a conclusion.

Ernst Rabel not only initiated the drafting of an international uniform sales law, [1] but also laid the foundations for the ensuing process in his comprehensive comparative study on sales law, written together with his collaborators at the former Kaiser Wilhelm Institute in Berlin, and published in two volumes as Recht des Warenkaufs (Law on the Sale of Goods). The participants at the Vienna Conference were constantly aware of Rabel’s initial contribution. [2]

It is not necessary here to trace the details of the progression from the International Institute for the Unification of Private Law (UNIDROIT) in Rome under the auspices of the League of Nations to the first successful intermediate stage, the Hague Conference on Uniform Law for International Sales. [3] The Hague Conventions — the Uniform Law for the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) [4] — did not fulfill the high expectations which accompanied the signing of the 1964 Hague Convention on Sales.[page 17] Indeed, both ULIS and ULF have been in effect in the Federal Republic of Germany since April 4, 1974. [5] They have been important in daily practice as evidenced by the considerable number of judicial decisions applying their provisions,[5a] even though the number of nations which have ratified the Hague Conventions has remained small, and its use is generally restricted to transactions between parties from these member states. [6] It was especially disappointing that the Hague Conventions were not ratified by some of the signatory states — such as France and the United States — which had exercised considerable influence on the formulation of their rules. Various reasons have been given for this failure. [7] Presumably each individual state had its own reasons for not ratifying and, in each case, more than one aspect determined the rejection of the uniform sales law. [8] Frequently mentioned is the negative evaluation of the sales law by developing countries — the belief that it favored the sellers of manufactured goods in the industrialized nations — together with the fact that these countries were not represented in the drafting process at the Hague Conference. [9]

In any case, without the participation of the developing and socialist countries, the hope that the Hague Conventions would become the lex mercatoria of world trade could not be fulfilled.

The efforts to achieve a worldwide unification of international sales law did not stop, however, with the failure of the Hague Conventions. The first sign of continuity was that UNCITRAL [10] took up the cause of drafting a uniform [page 18] international law of sales and that a working group was appointed for this purpose. [11] It can be said that the efforts represented a continuation because the working group did not begin with a clean slate; rather it worked from the basis of the Hague Conventions and the research of Ernst Rabel with the intention of creating an international sales law acceptable to as many countries as possible. [12]

The UNCITRAL Working Group finished the first draft (the Draft Convention on Sales) [13] in January 1976, which was ratified after a few changes at the tenth UNCITRAL Conference in Vienna in May and June of 1977 (the 1977 Draft Convention). [14] The Draft Convention on Formation, proposed by the Working Group, was deliberated at the eleventh session of UNCITRAL in 1978 in New York and incorporated in the substantive sales law (1978 Draft Convention). [15] The Secretary-General then circulated this 1978 Draft Convention among the governments of UN member states for their opinions and comments. It formed the basis for the work of the Vienna Conference.

Sixty-two nations participated in the Vienna Conference. [16] It took place at the Neue Hofburg. A representative of the UN Secretary-General, Mr. Erik Suy, opened the Conference on March 10 at 11 a.m. and the Austrian Foreign Minister Pahr gave an opening address. The Chairman of the Hungarian delegation, Prof. Eörsi, was elected president of the Conference. The delegates chose Prof. Roland Loewe (Austria) to be the chairman of the First Committee, in which the substantive provisions of the international law of sales were deliberated and worked out. Prof. Roberto Luis Mantilla-Molino (Mexico) was elected chairman of the Second Committee, which was responsible for the Final Provisions and the Protocol [page 19] Amending the Convention on the Limitations Period. The Drafting Committee was headed by Mr. Warren Khoo Leang Huat from Singapore, and the Credentials Committee was chaired by Mr. Peter K. Mathanjuke of Kenya. The Steering Committee of the Conference was composed of the president, the chairmen of the First and Second Committees, and the 22 vice presidents of the Conference.

The actual deliberations took place in the sessions of the above-mentioned First (Sales Law) and Second Committees (Final Provisions and Protocol Amending the Convention on the Limitation Period) from March 10 to April 5, 1980. In accordance with the rules of procedure adopted in the first plenary session, decisions were reached in these working committees by a simple majority vote. The Drafting Committee began its work on March 21 and continued until the end of the Conference, parallel with the working committees and the Plenary. In the last week of the Conference — April 7 to 11 — the drafts from the First and Second Committees were discussed in Plenary and, in accordance with the Conference procedure, passed by a two-thirds majority. In the final vote, 42 countries voted for the Convention, while 10 abstained. [17] On April 11, the Final Act of the Conference was signed in a festive ceremony. The Convention has been signed by 20 countries; 3 countries have to date acceded after the last day for signatures, Sept. 30, 1981, had passed. [18] It was written and certified in the following official languages: Arabic, Chinese, English, French, Russian and Spanish. The discussions were all conducted in one of these languages and then translated simultaneously into the other five. German was not an official language of the Conference. The Federal Republic of Germany, the German Democratic Republic, Austria and Switzerland formulated an official German version in 1983.

As already reported by Herber, [19] the Conference‚s deliberations were for the most part free from political influence. The main concern behind the proposals and amendments was almost always to achieve the best objective solution and not simply to perpetuate the regulations of one country‘s domestic law. There was also rarely a firm block position on individual issues, although, during the deliberations, the developing countries did seek to protect the interests of buyers of manufactured goods and coordinated their position in the „Group of 77“. The socialist states also held joint sessions, while the western industrialized nations and Japan deliberately tried to avoid acting as a group and, therefore, kept their coordinating contacts to a minimum.

The basis for discussions of the substantive sales law was the above-mentioned 1970 Draft Convention, for which the UN Secretariat had prepared a commentary (hereinafter the Secretariat Commentary) [20] which, by comparative references,[page 20] clarified the extent to which the Hague Convention had served as a source for the Draft Convention. The Conference also relied on the comments and proposals of the following governments and international organizations: Canada, the Federal Republic of Germany, Norway, the United States, [21] Australia, Byelorussian SSR, Israel, Sweden, [22] Finland, Switzerland, [23] the Netherlands, Portugal, the United Kingdom, Yugoslavia, [24] Austria, Czechoslovakia, France, Ireland, [25] the Central Office for International Railroad Transport in Bern, [26] the WIPO (World Intellectual Property Organization), [27] the International Chamber of Commerce, [28] the Asian African Legal Consultative Committee, [29] and the Council for Mutual Economic Assistance (COMECON), [30] along with an analysis of these comments and suggestions by the UN Secretariat. [31] These comments concerning the substantive sales provisions were supplemented by reports by the Secretary-General on the relationship between the Draft Convention and the Limitations Convention, [32] and a draft of the Final Provisions (the public international law provisions). [33] In addition to the above, for their internal discussions, the German delegation made profitable use of Huber’s commentary on the 1978 Draft Convention, [34] as well as the (unpublished) minutes of the German Council on Private International Law which had examined the UNCITRAL Draft in several of its sessions. Finally, the comparative studies on the Hague Convention and the UNCITRAL Draft made by Kahn [35] and Hartley [36] at the request of the EC Commission were also taken into consideration.[page 21]

Annex I to the Final Act contains in its first three Parts (Articles 1–88) the Sales law, while Part IV (Articles 89–101) contains in the Final Provisions the obligations of the Contracting States. [37]

Part I outlines the Convention’s sphere of application and its general provisions, Part II governs the formation of the contract, and Part III contains the substantive rules for the sales contract itself. Due to a request made by the Scandinavian countries, a state need not adopt all three parts but rather may adopt either Part II or Part III in conjunction with Part I. This possibility is reflected in Article 92 as well as in the text of the substantive sales provisions themselves.

Huber [38] has already pointed out that the the reduction in the number of provisions contained in the UNCITRAL Draft compared to the Hague Convention was achieved not only by combining the law of contract formation with the sales law but, above all, by greatly simplifying the rules for breach of contract. In general, the remedies are no longer differentiated according to the various forms of breach, and additional and special remedies are available only as exceptions to the rule. [39] The Convention distinguishes only between claims based on breach by the seller (Articles 45–52) and those based on breach by the buyer (Articles 6l-65), as supplemented by provisions — equally applicable to both parties — on suspension of performance and anticipatory breach (Articles 71–72), damages and exemptions (Articles 74–77, 79 and 80) and avoidance of the contract (Articles 81–84).

The tendency to avoid inflexible and irrevocable legal remedies, which was already visible in the 1978 Draft Convention, [40] influenced the formulation of the remedy provisions in the 1980 Convention. The need for greater judicial discretion in particular cases also became clear, such as in the requirement that a measure or waiting period be „reasonable“ . [41] The new provisions on time limitations for giving notice of non-conformity and the consequences of failing to give the notice in a timely manner (Articles 39 and 44) show especially clearly the strongly felt need for flexible rules to accommodate the buyer’s difficulties.[page 22]

Several points in the UNCITRAL Draft which had been criticized in the legal literature were improved in Vienna, for example, the description of a „fundamental breach of contract“, the apportionment of the risk for sending legally relevant communications, and the interpretation and gap-filling provisions of Article 7.

Of course, some suggestions were not adopted,[41a] but it should be regarded as a success that, in many cases, the content and, to some extent, the formulations of the UNCITRAL Draft survived in the final text.[page 23]

As discussed above, the 1974 Convention on the Limitation Period was re-drafted by the Second Committee in Vienna and adapted to the Uniform Law for International Sales. [470] The Protocol containing the adaptation was added to the Convention as Annex II. The Convention’s sphere of application had to be altered in order to make the prerequisites for applying the 1980 Convention and the Convention on the Limitation Period congruent (see Articles I and II of the Protocol and Articles 3 and 4 of the Convention on the Limitation Period). The Final Provisions of the Convention on the Limitation Period were also altered to fit the corresponding provisions in the Uniform Law for International Sales (see Articles III-VI of the Protocol).

The details of the Convention on the Limitation Period are not within the scope of this book. The heart of the regulation is the uniform limitation period of four years (Article 8). The limitation period also applies to claims based on lack of conformity. [471] In light of this rather generous limitation period, the exclusion of warranty claims based on a failure to give timely notice under Article 39 becomes much more important.[page 114]

While this English version is in the making, four years after the publication of the original, the fate of the Convention remains uncertain. Ratification by the Federal Republic of Germany is still pending. Above all, it is not clear whether all EC member states are willing to lay a uniform legal foundation, at least for the exchange of goods within the European Community, by introducing the Uniform Law for International Sales.

Nevertheless, there are grounds for hope: To date, the Convention has been ratified by 9 states; and since additional ratifications, in particular those of the Scandinavian countries, are expected in 1986, the Convention should soon enter into force. It is another good sign that the four German-speaking countries — Austria, the German Democratic Republic, the Federal Republic of Germany, and Switzerland — jointly produced a semi-official German translation of the Convention in 1983. On the other hand, it is regrettable that the Hearing before the Committee on Foreign Relations of the United States Senate in the Spring of 1984 yielded no positive results, apparently because rather strong objections were voiced against CISG. Since the responsible EC authorities in Brussels apparently show little interest in motivating the member states to adopt the Convention, great hopes rest on the United States: Ratification by the U.S. would signify a breakthrough, and many countries that trade with the U.S. would undoubtedly follow. On the other hand, final rejection of the Convention by the U.S. would mean a severe setback to any unification in the field of international sales law.

While various provisions of the Uniform Law for International Sales may give rise to criticism, on the whole, it is a modern law that will serve its practical purpose; it is based on thorough preliminary work in the field of comparative law and is the result of a serious effort to find the best practical solution for each problem. If the Convention does not come into force, then, for the forseeable future, the chance of achieving a world-wide unification of the law in this area would presumably be lost. It is hardly to be expected that such a large number of countries with different economic and social structures could once again be brought together for such fruitful and result-oriented collaboration.

In my opinion, it would be a mistake to take consolation from the hope that the failure to achieve a uniform sales law under the auspices of the United Nations would clear the way for a unification of sales law within the European Community. There is little chance that a uniform sales law for the European Community can be achieved by extending the number of Contracting States to the Hague Conventions. Besides, the experiences gathered during the work of UNCITRAL and the deliberations at the Vienna Conference have shown that the greatest obstacles to unification do not lie between states with different social and economic systems, but rather between the countries of Western Europe, where each holds convictions,[page 115] rooted in centuries of legal tradition, about the superiority of its own solutions. Without the persuasive power of large majorities that, in Vienna, helped to surmount these barriers, it is to be feared that the profound differences could only be overcome through compromise on the basis of the lowest common denominator. That would be unfortunate and would justifiably raise the question of whether such a unification of the law is really necessary, particularly since, in the European Community, the general difficulties of access to foreign legal materials are surmountable and constantly diminishing.

It remains to be hoped that fears of the Convention’s failure are unfounded. Even if it is not ratified by all EC member states but is accepted by many others, particularly third world and socialist countries, it should be considered a success. Its wide dissemination would not only ease the legal requirements for the sale of goods between countries which have ratified the Convention, but it would also be suitable as a contractually stipulated law for sales contracts between parties in countries where the Convention has not entered into force.

The fact that the provisions of the Convention were formulated not only by representatives from the industrialized countries but also by delegations from third-world countries should pave the way for the Convention. Indeed, it even suggests that parties should agree on its application to international sales contracts. [472] However, the time has probably not yet come to advise exporters and importers to adapt their standard contract terms to the CISG.[page 116]

With respect to this first initiative, see Dölle introduction at XXXI. (Complete bibliographic information for works frequently cited appears in the Bibliographic Notes.)

Text ↑

Rabel’s work was often praised. For example, Prof. Farnsworth, the U.S. delegate, spoke of Berlin as the „cradle of the unification of the law of sales“.

Text ↑

See Dölle introduction at XXXI et seq.; see also the information in 3 RabelsZ 405 et seq. (1929); the information in 5 RabelsZ 207 (1931); the reports by Rabel in 9 RabelsZ 1 et seq. (1935), 17 RabelsZ 212 et seq., 339 et seq.(1952); Riese, Der Entwurf at 16 et seq.; Riese, Die Haager Konferenz at 1 et seq.; von Caemmerer, Haager Konferenz at 101 et seq.; Winship, Scope; Farnsworth, History.

Text ↑

For the history and reasons behind the division into two conventions, see von Caemmerer, Haager Konferenz at 101 et seq. (1965).

Text ↑

The Conventions have been ratified by Belgium, the F.R.G., Israel, Italy, Luxembourg, the Netherlands, San Marino, the U.K. and Gambia. The last two nations adopted the reservation which makes the law applicable only if chosen by the parties. See Convention Relating to a ULIS, Article V.

Text ↑

See von Caemmerer at id. (on the non-participation of the U.S.). For U.S. criticism of the Hague Conventions, see 1 UNCITRAL Y.B. 162 et seq. (1968–1970). Maskow (G.D.R.) criticizes ULIS and ULF on the merits for being „more of a common denominator of different national legal systems than a regulation which first and foremost takes into account the requirements of contracts for the international sale of goods“. Maskow at 45. I would agree with Réczei, on the other hand, that ULIS is the product of creative work rather than of compromise. See Réczei, Acta Juridica at 159.

Text ↑

United Nations Commission on International Trade Law, a permanent commission instituted by the UN General Assembly on a motion by Hungary. See G.A. Res. 2205 (XXI) (Dec. 17, 1966), in 1 UNICITRAL Y.B. 65 et seq. (1968–1970).

Text ↑

cf. Honnold, Commentary at 49 et seq.; Winship, Scope at 1–13; see also Herber, Die Arbeiten des Ausschusses der Vereinten Nationen für Internationales Handelsrecht (UNCITRAL); 1974 AWD/RIW 577 et seq., 579; Herber, 1976 RIW/AWD 125–26; 1977 RIW/AWD 314 et seq., 317. For details of the Working Group and the proceedings of UNCITRAL and the appointed working group, see 1 UNCITRAL Y.B. 78 et seq. (1968–1970); Secretariat’s Commentary at 7 et seq.

Text ↑

7 UNCITRAL Y.B. 89 et seq. (1976); see also Herber, supra page 11, at 317 et seq. (commenting on the Draft Convention on Sales).

Text ↑

Printed in 43 RabelsZ 528 et seq. (1979) and discussed in depth in Huber at 413 et seq. For the merger of the law of sales and the law on the formation of contracts, see Eörsi, Problems at 311 et seq.

Text ↑

Argentina, Australia, Austria, Belgium, Bolivia, Brazil, Bulgaria, Burma, Byelo-Russian Soviet Socialist Republic, Canada, Chile, China, Colombia, Costa Rica, Cyprus, Czechoslovakia, Denmark, Ecuador, Egypt, Finland, France, German Democratic Republic, Germany, Federal Republic of, Ghana, Greece, Hungary, India, Iran, Iraq, Ireland, Israel, Italy, Japan, Kenya, Lybian Arab Jamahiriya, Luxembourg, Mexico, Netherlands, Nigeria, Norway, Pakistan, Panama, Peru, Philippines, Poland, Portugal, Republic of Korea, Rumania, Singapore, Spain, Sweden, Switzerland, Thailand, Tunesia, Turkey, Ukranian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Yugoslavia and Zaire. Venezuela was represented by an observer, as were the following international organizations: The World Bank, Central Office of International Railway Transport, Council of Europe, European Communities, The Hague Conference on Private International Law, International Institute for the Unification of Private Law (UNIDROIT), Bank for International Settlements and the International Chamber of Commerce.

Text ↑

Burma, China, Colombia, Iran, Kenya, Panama, Peru, Thailand, Turkey, and Zaire. For the reasons for their abstention, see Herber at 602.

Text ↑

Signatures: Austria, Chile, China, Czechoslovakia, Denmark, F.R.G., G.D.R., Finland, Ghana, Italy, Jugoslavia, Lesotho, Netherlands, Norway, Poland, Sweden, Singapore, Hungary, USA, Venezuela; Accesions (until 1985): Argentina, Egypt, Syria.

Text ↑

Huber at 413 et seq. The positions of the other delegations also showed that they were familiar with this work. cf. infra at IV A.

Text ↑

Kahn, Etudes Comparées des Conventions de la Haye du 1er Juillet 1964 sur la Vente Internationale des Objets Mobiliers Corporels et la Formation du Contrat de Ventes et Projet du Convention sur les Contrats de Ventes Internationales de Marchandises preparées par la Commission des Nations-Unies pour le Droit Commercial International (Oct. 1979).

Text ↑

Hartley, A Study of the Uniform Law of the International Sale of Goods including the Uniform Law on the Formation of Contracts for the International Sale of Goods (The Hague Conventions 1964) and the Draft Convention on Contracts for the International Sale of Goods prepared by the United Nations Commission on International Trade Law (Oct. 1979; 2 vols.).

Text ↑

For examples of such special regulations, see Articles 49(1)(b) (fixing an additional period of time only for a failure to deliver); Article 50 (reducing the price only for lack of conformity); Article 65 (sale to specifications).

Text ↑

See Huber at 417 (reasons for abandoning ipso facto avoidance); but see Hellner, Ipso Factor Avoidance at 85 et seq.

Text ↑

cf., e.g., Articles 46(3) sentences 1 and 2, 49(2), 63(1), 65(2), 72(1), 73(2), 75, 77, 79(1), 85 sentence 1, 86(1) sentence 1, 86(2) sentence 1, 87, 88(1), 88(2) and 88(3). It should be noted that the term „reasonable“ was often a compromise between the need for „hard and fast rules,“ on the one hand, and „soft“ debtor-friendly regulations on the other.

Text ↑

See generally Landfermann, supra page 275 (a comprehensive report on the 1974 Convention on the Limitation Period).

Text ↑

Cf. Stumpf, disagrees with this view. See Stumpf, Das UNCITRAL Übereinkommen über den Warenkauf und Allgemeine Geschäftsbedingungen — viel Lärm um Nichts?, 1984 RIW/AWD 352.

Text ↑


Version 4.4-en (2022)		©International Edition CISG.info, 1999–2024