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Published online by Cambridge University Press: 28 February 2019
On January 1, 1988, the United Nations Convention on Contracts for the International Sale of Goods (the Convention) became effective in the United States. In general, the Convention (also referred to as the “Vienna Sales Convention,” the “Sales Convention,” the “CISG,” or the “UN Convention”) applies to contracts for the sale of goods between enterprises having their places of business in different countries, provided these countries have adopted the Convention. Freedom of contract, however, is a fundamental principle of the Convention, and the parties may opt out or modify the effects of its provisions.
1 United Nations Convention on Contracts for the International Sale of Goods, U.N. Doc. A/CONF.97/18, art. 5 (1981) (opened for signature Apr. 11, 1980) [hereinafter CISG].Google Scholar
2 See Peter Winship, Update: The New Legal Regime for International Sales Contracts, 2 Rev. Int'l Bus. L. 107, 107–08 (1988).Google Scholar
3 Id. at 111.Google Scholar
4 CISG, supra note 1, art. 1(1).Google Scholar
5 Winship, supra note 2, at 112.Google Scholar
6 The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental organization, seated in Rome, consisting of fifty-six member states. Its offices and numbers are: UNIDROIT, Via Panisperna 28, 00184 Rome, Italy; Tel.: (39/6) 69941372; Fax: (39/6) 69941394. Established in 1926 under the auspices of the League of Nations, its purpose is to examine ways of harmonizing and co-ordinating the private law of States and groups of States.Google Scholar
7 Conventions on International Sale of Goods and Formation of Contracts for International Sale of Goods, Convention Relating to a Uniform Law on the International Sale of Goods, opened for signature July 1, 1964, 3 I.L.M. 854, 855 [hereinafter ULIS].Google Scholar
8 Conventions on International Sale of Goods and Formation of Contracts for International Sale of Goods, Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, opened for signature July 1, 1964, 3 I.L.M. 854, 864 [hereinafter ULF].Google Scholar
9 United Nations Convention on Contracts for the International Sale of Goods: Note by the Secretariat, U.N. GAOR Comm. on Int'l Trade Law, 21st Sess., U.N. Doc. A/CN.9/307 (1988) [hereinafter Secretariat Note].Google Scholar
10 The United Nations Commission on International Trade Law (UNCITRAL) was established by the General Assembly in 1966. In establishing the Commission, the General Assembly hoped to reduce obstacles to the flow of international trade. The Commission carried the general mandate to further the progressive harmonization of international trade among nations. The Secretariat of UNCITRAL is the International Trade Law Branch of the United Nations Office of Legal Affairs. It is located in Vienna. UNCITRAL Secretariat, P.O. Box 500, Vienna International Centre, A-1400 Vienna, Austria; Phone: (43-1) 21345/4060 or 4061; Fax: (43-1) 237485; Secretary: Gerold Herrmann. For more information, refer to Germain's Transnational Law Research: A Guide for Attorneys, Ch. IV, UNITED NATIONS (1991-. Looseleaf); UNCITRAL also has a web site and can be reached at: http://www.un.or.at/uncitral/ Google Scholar
11 The Convention was submitted to the U.S. Senate for its advice and consent to ratification on September 21, 1983. United Nations Convention on Contracts for the International Sale of Goods, Sept. 21, 1983, S. Treaty Doc. 98-9, 98th Cong., 1st Sess. (1983) [hereinafter President's Letter]. An analysis of the convention accompanies the President's letter. The Senate gave its advice and consent on October 9, 1986, and the Convention went into effect on January 1, 1988.Google Scholar
12 For current status information call the United Nations Treaty Section in New York at (212) 963 3918.Google Scholar
13 See Robert G. Lee, The UN Convention on Contracts for the International Sale of Goods: OK for the U.K. ? 1993 J. Bus. L. (1993); Barry Nicholas, The United Kingdom and the Vienna Sales Convention: Another Case of Splendid Isolation? Address Before the Centro di Studi e Richerche di Diritto Comparato e Straniero (March 1993), in Saggi, Conferenze E Seminari, 1993, at 1.Google Scholar
14 See, e.g., International Economic and Trade Law–Universal and Regional Integration (Olive M. Schmitthoff & Kenneth R. Simmonds eds., Leyden: Sijthoff, 1976); Einheitliches Kaufrecht und Nationales Obligationsrecht (Peter Schlechtriem ed., Baden-Baden: Nomos, 1987).Google Scholar
15 See, e.g., Roy Goode, Reflections on the Harmonisation of Commercial Law, 1 Uniform L. Rev. 54 (1991).Google Scholar
16 See Audit, infra part II.A.Google Scholar
17 For instance, ULIS Article 82 and CISG article 74 on consequential damages and foreseeability are substantively identical, and the ULIS articles have generated commentaries and cases that may be useful in the interpretation of the CISG.Google Scholar
18 See, e.g., Ireland Law Reform Commission, Report on United Nations (Vienna) Convention on Contracts for the Sale of Goods (Dublin: The Commission, 1980).Google Scholar
19 E.g., Jacques Ghestin & Bernard Desche, Traité des Contrats (Paris: L.G.D.J., 1990); 2 George Riblot & Rene Riblot, Traité de Droit Commercial (13th ed., Paris: L.G.D.J., 1992).Google Scholar
20 See, e.g., E. Allen Farnsworth et al., Cases and Materials on Commercial Law (5th ed. 1993); Nicholas, Impracticability and Impossibility Under CISG (1984), reprinted in Ralph Folsom et al., International Business Transactions: A Problem-Oriented Coursebook (3d ed. 1995).Google Scholar
21 Peter Schlechtriem, Vienna Sales Convention 1980 (Recent Developments)–Developed Countries Perspectives, (Sept. 22, 1992) (unpublished manuscript on file with author).Google Scholar
22 See infra part IV.A.Google Scholar
23 See, e.g., Peter Schlechtriem, Unification of the Law for the International Sale of Goods, in XII Internationaler Kongreß für Rechtsvergleichung 1986 Sydney und Melbourne/Australien 121 (1987); K. Sutton, Methodology in Applying Uniform Law for International Sales (under the UN Convention), in Law and Australian Legal Thinking in the 1980's 91 (Alice E.S. Tay ed., 1986).Google Scholar
24 See, e.g., Christian Mouly, Que Change la Convention de Vienne sur la vente internationale par rapport au droit français interne?, 1991 Recueil Dalloz Sirey 77.Google Scholar
25 The official text of the Convention can be found in: United Nations Convention on Contracts for the International Sale of Goods, Apr. 10, 1980, U.N. Doc. A/CONF.97/18, Annex I, reprinted in 19 ILM 668 (1980). For US sources, the UN-certified Convention text is published in 52 Fed. Reg. 6262 (1987). It is also printed in the Appendix to Title 15 of the United States Code Annotated. 15 U.S.C.A. app. (West 1995). The text of the Convention is also to be found in Martindale-Hubbell Law Directory, International Law Digest volume (MARHUB;INTDIG, added to Lexis in August 1995).Google Scholar
26 See ULIS, supra note 7; ULF, supra note 8.Google Scholar
27 The records of the 1980 Convention are officially published in United Nations Conference on Contracts for the International Sale of Goods—Official Records, UN Doc. A/CONF.97/19 (1981) [hereinafter Official Records]. These official records include the documents of the conference and summary records of the plenary meetings and of the meetings of the main committees. The principle conference documents are the 1978 draft UNCITRAL text, a commentary on this draft prepared by the UNCITRAL Secretariat, and the Secretary-General's analysis of comments and proposals on the 1978 draft made by governments and international organizations.Google Scholar
28 See, e.g., 1974 UNCITRAL Y.B. 44, U.N. Doc. A/CN.9/SER.A/1974; 1977 UNCITRAL Y.B. 59, U.N. Doc. ACN.9/SER.A/1988.Google Scholar
29 See Germain, supra note 25, Ch. III, § 13.16.16.Google Scholar
30 Message from the President Containing the Legal Analysis of the United Nations Convention on Contracts for the International Sale of Goods, S. Treaty Doc. No. 98-9, 98th Cong., 1st Sess. (1983), reprinted in 22 I.L.M. 1368 (1984), and in Galston, supra note 33. See also Henry Landau, Background to U.S. Participation in United Nations Convention on Contracts for the International Sale of Goods, 18 Int'l Law. 29 (1984).Google Scholar
31 Report of the United States Delegation to the United Nations Conference on Contracts for the International Sale of Goods at Vienna, Austria, submitted to Secretary of State (1980) (Prepared by John O. Honnold, Co-Chairman of the Delegation) [hereinafter Delegation Report].Google Scholar
32 The Convention for the International Sale of Goods: A Handbook of Basic Materials (D. Magraw & R. Kathrein eds., 2d ed., Washington, D.C.: ABA Section of International Law and Practice, 1990).Google Scholar
33 See Winship, Peter. The U.N. Sales Convention: A Bibliography of English-Language Publications, 28 Int'l Law. 401–23 (1994).Google Scholar
34 The United Nations Conference on Contracts for the International Sale of Goods–Official Records: Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committees, 1981, U.N. Sales No. E.82.V.5 (1981).Google Scholar
35 Delegation Report, supra note 32.Google Scholar
36 Id.Google Scholar
37 Id.Google Scholar
38 John Honnold, Documentary History of the Uniform Law for International Sales: The Studies, Deliberations, and Decisions that Led to the 1980 United Nations Convention with Introductions and Explanations (Deventer: Kluwer Law & Taxation, 1989).Google Scholar
39 Dissemination of Decisions Concerning UNCITRAL Legal Texts and Uniform Interpretation of Such Texts: Note by Secretariat, U.N. GAOR, 40th Sess., U.N. Doc. A/CN.9/267 (1985).Google Scholar
40 See Bernard Audit, The Vienna Sales Convention and the Lex Mercatoria, in Lex Mercatoria and Arbitration: A Discussion of the New Land Merchant (Thomans Carbonneau ed., Dobbs-Ferry, N.Y.: Transnational Juris, 1990), at 176.Google Scholar
41 The CLOUT system is explained in United Nations, Commission on International Trade Law, Case Law on UNCITRAL Text (Clout): User Guide, U.N. Doc. A/CN.9/SER.C/GUIDE/1 (1993) (available from the UNCITRAL Secretariat, P.O. Box 500, Vienna International Centre, A-1400, Vienna, Austria. Fax: 43-1-21345-5813).Google Scholar
42 Michael Will, International Sales Law under CISG: The First Hundred Decisions (Geneve, Switzerland: M. Will, 1994).Google Scholar
43 Convention on Agency in the International Sale of Goods, reprinted in 22 I.L.M. 249 (1983).Google Scholar
44 U.N. Convention on the Limitation Period in the International Sale of Goods, June 14, 1974, U.N. Doc. A/CONF.63/15 (1974), reprinted in 13 I.L.M. 952 (1974), and Protocol Amending the Convention on the Limitation Period in the International Sale of Goods, Apr. 10, 1980, U.N. Doc. A/CONF.97/18, Annex II, reprinted in 19 I.L.M. 696 (1980). The 1974 Convention on the Limitation Period in the International Sale of Goods and its 1980 Protocol came into force for the United States on December 1, 1994. 33 I.L.M. 1619, 1620 (1994).Google Scholar
45 Executive Secretary of the Pace Institute of International Commercial Law and Editor of the CISG project.Google Scholar
46 Director of the Law Library and Director of the Pace Institute of International Commercial Law, and Internet Director of the Project. For further information: Pace University School of Law, 78 North Broadway, White Plains, N.Y. 10603, U.S.A.Google Scholar
47 See, e.g., supra note 29.Google Scholar
