Research Topics: Law Review

Pace International Law Review

color:black">  OPINION: CISG-AC PUBLISHES FIRST OPINION+ SEC-NOTE-1: + The following Introductory Note and Opinion were provided by Professor Albert Kritzer, Executive Secretary of the Institute of International Commercial Law, Pace University School of Law. His assistance in securing this material as well as his unbounded guidance and support of the Pace International Law Review and the Pace International Law program cannot be fully thanked in a mere footnote. NAME: Dr. Loukas Mistelis* BIO: * Loukas A Mistelis, LLB, MLE, Dr. iuris, MCIArb, Advocate, is the Clive M Schmitthoff Senior Lecturer in Commercial Law at the Centre for Commercial Studies, Queen Mary, University of London. He acts as Secretary of the CISG-AC. He may be contacted at L.Mistelis@qmul.ac.uk SUMMARY: … I. Introduction to the CISG Opinion … The term “oral” includes electronically transmitted sound provided that the offeree expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address. … The term “oral” includes electronically transmitted sound and communications in real time provided that the offeree expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address. … The offeror may provide the information by electronically conveyed sound or by an electronic message under the precondition that the sender of the late acceptance has indicated that he is willing to receive such electronic messages. … CISG Arts. 8 and 9 may be of assistance in determining whether the offeree has impliedly indicated his willingness to receive such messages. … Information to the buyer from the seller that the seller will not perform within the fixed period can be conveyed by an electronic message. … Information to the seller from the buyer that the buyer will not perform within the fixed period can be conveyed by an electronic message. …   TEXT:  [*454]  I. Introduction to the CISG Opinion In a world of countless legal abbreviations, one more is being added in our jargon. CISG-AC stands for Advisory Council of the United Nations Conventions on Contracts for the International Sale of Goods (CISG). This is an unusual Convention and this is an unusual Council. Knowingly the CISG is one of the most successful international instruments which produce uniform substantive rules for international trade. It is often pointed out that, world-wide two thirds of international sale transactions are conducted between parties based in a CISG country. In addition more than 1,000 judicial and arbitral decisions have been identified and are now featured in the relevant databases, such as http://www.cisg.law.pace.edu. In this sense, CISG is a successful and mature text of protean nature, which has been supported and enhanced by legal practice over the last 15 years. Most recently, UNCITRAL, the CISG formulating agency, has completed a digest which provides a comprehensive presentation of case law on the CISG and aims at assisting courts in the application of the Convention. The CISG-AC has been established in 2001 as a private initiative to respond to the emerging need to address some controversial, unresolved issues relating to the CISG which would merit interpretative guidance. Professor Albert Kritzer, Executive Secretary of the Institute of International Commercial Law, Pace University School of Law, has been the spiritus rector of the idea of an interpretative council, an idea which has been mooted reluctantly in meetings of international organizations before. In a meeting in Paris in June 2001 some of the most eminent scholars in CISG gathered to explore the possibility of creating a CISG interpretative council. The idea received warm support and the founding members of the CISG-AC are Professor Dr. Eric E. Bergsten, Emeritus of  [*455]  Pace University, formerly Secretary General of UNCITRAL, Professor Dr. Michael Joachim Bonell, University of Rome La Sapienza, formerly Secretary General of UNIDROIT, Professor E. Allan Farnsworth, Columbia University, New York, Professor Dr. Alejandro Garro, Columbia University, Professor Sir Roy Goode, University of Oxford, Professor Dr. Sergei N. Lebedev, Moscow Institute of International Relations, Professor Dr. Jan Ramberg, Emeritus, Stockholm University, Professor Dr. Dr. h.c. Peter Schlechtriem, Emeritus, University of Freiburg, Professor Hiroo Sono, Kyushu University and Professor Dr. Claude Witz, Universit<um a>t des Saarlandes and Universite Robert Schuman, Strasbourg. The meeting was also attended by Albert Kritzer, Pace, and Dr. Loukas Mistelis, Clive M. Schmitthoff Senior Lecturer in International Commercial Law, Centre for Commercial Law Studies, Queen Mary, University of London who represented the two sponsoring institutions. Professor Schlechtriem was elected as the first Chair, and Dr. Mistelis as the Secretary of CISG-AC. Two more members were invited to join the Council in June 2003, Professor Dr. M<sof> del Pilar Perales Viscasillas, Universidad Carlos III, Madrid, and Professsor Dr. Ingeborg Schwenzer, University of Basel. The CISG-AC is a private initiative which aims at promoting a uniform interpretation of the CISG. It is a private initiative in the sense that its members do not represent countries or legal cultures, but they are scholars who look beyond the cooking pot for ideas and for a more profound understanding of issues relating to CISG. Accordingly the group is afforded the luxury of being critical of judicial or arbitral decision and of addressing issues not dealt with previously by adjudicating bodies. The Council is guided by the mandate of Article 7 of the Convention as far its interpretation and application are concerned: the paramount regard to international character of the Convention and the need to promote uniformity. In practical terms, the primary purpose of the CISG-AC is to issue opinions relating to the interpretation and application of the Convention on request or on its own initiative. Requests may be submitted to the CISG-AC, in particular, by international organizations, professional associations and adjudication bodies. This first opinion is a response to an informal request by the International Chamber of Commerce for the Council to  [*456]  reflect on issue of electronic communications and the ability of the CISG to respond to such challenges. The CISG-AC invited Professor Dr. Christina Ramberg, University of G<um o>teborg, to submit a report to the Council’s consideration. The opinion has been discussed in three sessions. The CISG-AC is of the opinion that the Convention can accommodate electronic communications as well as it does traditional communications and the published opinion suggests interpretation of all CISG provisions which pertain to communications. Three more opinions will be completed in the next months. One opinion is a response to a request by the Association of the Bar of the City of New York Committee on Foreign and Comparative Law to address the question of the parol evidence rule. The other two opinions address the issue of reasonable notice for lack of conformity, a highly controversial issue in judicial practice, and the question of exemption from liability for economic hardship. The CISG-AC wishes to publicize all its opinions widely through printed and electronic media and wishes to receive any comments the readership may have. The preferred citation style is: CISG-AC, Opinion no 1: Electronic Communications under CISG, 15 August 2003; Rapporteur: Professor Christina Ramberg, followed by a reference to the place of publication. II. First CISG Advisory Opinion: Electronic Communications under CISG A. CISG Art. 11   A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses. OPINION:   A contract may be concluded or evidenced by electronic communications. COMMENT:   11.1. The purpose of CISG Art. 11 is to ensure that there are no form requirements of writing connected to the formation of contracts. The issue of electronic communications beyond telegram  [*457]  and telex was not considered during the drafting of the CISG in the 1970s. By not prescribing any form in this article, CISG enables the parties to conclude contracts electronically. See also UNCITRAL Model Law on Electronic Commerce Art. 5. B. CISG Art. 13   For the purpose of this Convention ‘writing’ includes telegram and telex. OPINION:   The term “writing” in CISG also includes any electronic communication retrievable in perceivable form. COMMENT:   13.1. CISG Arts. 11, 12, 13, 21, 29 and 96 contain the term “writing”. In the traditional paper world this term was uncomplicated and referred to documents written on paper [or other durable medium] by pencil, pen, etc. The problem is now whether electronic documents other than telegram and telex may also constitute “writing”. The prerequisite of “writing” is fulfilled as long as the electronic communication is able to fulfill the same functions as a paper message. These functions are the possibility to save (retrieve) the message and to understand (perceive) it. 13.2. The parties may agree on what type of written form they intend to use (CISG Art. 6). They may, for instance, agree that they only accept paper letters sent by a particular courier service. Unless the parties have limited the notion of writing, there should be a presumption that electronic communications are included in the term “writing”. This presumption could be strengthened or weakened in accordance to the parties’ prior conduct or common usages (CISG Art. 9(1) and (2). 13.3. This Opinion does not deal with reservations made by States in accordance with CISG Art. 96 nor does it impose any restrictions on States that have made such a reservation. See also UNCITRAL Model Law on Electronic Commerce Art. 6.  [*458]  C. CISG Art. 15   (1) An offer becomes effective when it reaches the offeree. (2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. OPINION   The term “reaches” corresponds to the point in time when an electronic communication has entered the offeree’s server. An offer, even if it is irrevocable, can be withdrawn if the withdrawal enters the offeree’s server before or at the same time as the offer reaches the offeree. A prerequisite for withdrawal by electronic communication is that the offeree has consented, expressly or impliedly, to receive electronic communications of that type, in that format and to that address. COMMENT   15.1. An offer is not effective until it reaches the offeree (CISG Art. 15(1)) and may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer (CISG Art. 15(2)). In traditional means of communication this rule enables the offeror to withdraw his offer by a faster means of communication. He may, for instance, send an offer by letter through ordinary mail (snail mail) and then later withdraw it by sending a fax that reaches the offeree before the letter. The problem in relation to electronic means of communication is that there are rarely any practical means of faster communication than electronic messages sent by e-mail or communicated over websites or other EDI-arrangements. Thus a question of practical importance arises when the offer is sent by a traditional letter written on a paper and sent by traditional mail while the withdrawal is sent electronically. 15.2. The difficulty from a conceptual point of view is that the addressee of an electronic withdrawal does not have to be physically present at the place where the message arrives. The place of the message is a functional concept rather than a physical  [*459]  one. The message could be located on any server in the world, including the sender’s – the important question is whether the addressee can retrieve it. The following are the most important situations that are likely to be considered in relation to the term “reaches” in the context of electronic communications: 15.3. Situation “A”. From a pragmatic point of view it is clear that the addressee of an electronic withdrawal may read it as soon as it is located on his server. He may have problems reaching his server due to internal problems in his network system. This is normally within his “sphere of influence”. Irrespective of how harsh it may be for the offeree that messages have arrived to his server but cannot be read by him due to internal problems, it is not appropriate to put the risk on the offeror for the offeree’s technical problems. The offeree may reduce the risk by choosing appropriate internet service providers or designing an adequate technical infrastructure to make sure that the internal communication functions satisfactorily. The sender of an electronic communication ought not to assume this risk. 15.4. Situation “B”. It is not sufficient that a withdrawal has entered the offeree’s server. The offeree must also have expressed somehow that he is willing to receive electronic communications. The offeree’s willingness to accept electronic communications must be taken into account in determining whether an electronic withdrawal has “reached” the offeror. The consent of the offeree may be evident under CISG Art. 8, governing the interpretation of the conduct of the parties. CSIG Art. 9(1) may also be relevant if the parties have established a practice in their business. CISG Art. 9(2) may apply in connections to trade usages which the parties knew or ought to have known and which in international trade are widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. 15.5. Situation “C”. A related problem is when the e-mail address is not correctly stated in the message containing a withdrawal. Such messages may enter the addressee’s server – but never reach the addressee personally, so that it cannot be accessed by the addressee. An example is when the correct email address is “Thomas@companyx.com” but the sender writes “Tomas@companyx.com.”  [*460]  This wrongly spelled e-mail may sometimes enter Thomas’ server, but gets stuck in the server, since the server cannot find Tomas without the ‘h’. For such situations the risk is on the sender, since Thomas has not indicated his willingness to receive electronic messages incorrectly addressed. Sometimes an electronic communication with an incorrect address is forwarded by the postmaster to the correct address. If the forwarded communication reaches the addressee’s server in time, the withdrawal is effective. The addressee has in such a situation informed the postmaster that e-mails incorrectly addressed in a certain way should be forwarded to him, and by doing so he has expressed his general willingness to receive also electronic messages incorrectly addressed. 15.6. Situation “D”. Another problem in relation to “reaches” is whether the offeree is able to process and understand the electronic communication. Due to incompatible computer programs, the text appearing at the offeree’s computer may be incomprehensible. The situation is rather close to the problem of a message being written in a language that the offeree is unable to understand. The question at issue here is whether an electronic withdrawal that cannot be accurately processed by the offeree has “reached” the offeree when it has entered his server. The crucial issue is to what extent the offeree has indicated that he is willing to receive that type of electronic communications. It is not sufficient that the offeree has agreed to generally receive electronic communications. He must have consented to receiving electronic messages of that type, in that format, and to that address. Here again, CISG Art. 8 will be relevant for the interpretation of the conduct of parties, CISG Art. 9(1) will be relevant for any practices established between the parties, while CISG 9(2) may indicate, as a matter of trade usage, whether the offeror has impliedly or expressly agreed to receive electronic messages of a certain type. See also UNCITRAL Model Law on Electronic Commerce Art. 15  [*461]  D. CISG Art. 16(1)   (1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. OPINION   In case of electronic communications the term “reaches” corresponds to the point in time when an electronic communication has entered the offeree’s server. An offer may be revoked if the revocation enters the offeree’s server before the offeree has dispatched an acceptance. A prerequisite is that the offeree has consented, expressly or impliedly, to receiving electronic communications of that type, in that format, and to that address. In electronic communications the term “dispatch” corresponds to the point in time when the acceptance has left the offeree’s server. The offeror may revoke the offer by sending a revocation that enters the offeree’s server before the offeree’s acceptance leaves the offeree’s server. A prerequisite is that the offeror has consented, expressly or impliedly, to receiving electronic communications of that type, in that format and to that address. COMMENT   16.1. This provision enables the offeror to revoke an offer until the offeree has dispatched his acceptance. The revocation must have entered the offeree’s server before the offeree has dispatched his acceptance. 16.2. For restrictions on the effectiveness of “reaches”, see comments in Article 15. For the concept of “dispatch” see the comment 21.3 See also UNCITRAL Model Law on Electronic Commerce Art. 15 E. CISG Art. 17   An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.  [*462]  OPINION   The term “reaches” corresponds to the point in time when an electronic message has entered the offeror’s server. An offer is terminated when a rejection enters the offeror’s server. A prerequisite is that the offeror has consented expressly or impliedly to receiving electronic communications of that type, in that format, and to that address. COMMENT   17.1. An offer is terminated when rejection reaches the offeror. In electronic environments the exact time of “reaches the offeror” can be determined. The offeree can no longer create a contract by dispatching an indication of assent. If the offeree changes his mind after having dispatched a rejection of the offer and wishes to conclude a contract, the indication of assent must enter the offeror’s server before the rejection enters the offeror’s server 17.2. For restrictions on the effectiveness of “reaches” see comments in Article 15. See also UNCITRAL Model Law on Electronic Commerce Art. 15 F. CISG Art. 18(2)   (2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed, or, if no time is fixed, within a reasonable time, due to account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. OPINION   An acceptance becomes effective when an electronic indication of assent has entered the offeror’s server, provided that the offeror has consented, expressly or  [*463]  impliedly, to receiving electronic communications of that type, in that format, and to that address. The term “oral” includes electronically transmitted sound in real time and electronic communications in real time. An offer that is transmitted electronically in real time communication must be accepted immediately unless the circumstances indicate otherwise provided that the addressee consented expressly or impliedly to receiving communications of that type, in that format, and to that address. COMMENT   18.1. The underlying purpose of this article is to ensure that the offeror has an opportunity to read the indication of assent if he so chooses. It is not required that the offeror actually have read the indication of assent, but rather that such indication of assent become accessible for reading (the distinction between “reach the mind” and “reach the desk” or “reach the legal entity”). Accordingly, when an indication of assent has entered the offeror’s sphere of control, it must be assumed to have reached the offeror. 18.2. The proposition that an indication of assent only needs to be accessible and not actually read is designed to facilitate evidence. It is possible (more or less easily, but at least conceptually) to prove when a message becomes accessible; it is very difficult to prove when someone actually addressed his mind to it. 18.3. For restrictions on the effectiveness of “reaches” see comments in Article 15. 18.4. The requirement that an oral offer must be accepted immediately indicates that oral offers are only binding during the immediate negotiations. When negotiations are carried out in real time, whether by sound or by typed letters, the situation is similar to oral negotiations and the presumption is that the offers must be accepted on the spot, in immediate connection to the negotiations and in real time. The relevant factor is that the other party is aware of the offer and has a possibility to respond immediately. An offer that is communicated electronically  [*464]  in real time not by sound but in writing by typed letters must also be accepted immediately unless the circumstances indicate otherwise. Offers in chat rooms and other types of real time communication must be accepted immediately. See also UNCITRAL Model Law on Electronic Commerce Art. 15. G. CISG Art 19(2)   (2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. OPINION   The term “oral” includes electronically transmitted sound provided that the addressee expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address. The term “notice” includes electronic communications provided that the addressee expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address. COMMENT   19.1. The purpose of this article is to make a message that does not constitute an acceptance effective as an acceptance unless the offeror provides a quick notice that the purported acceptance is not an acceptance. Such information by the offeror could be conveyed by electronic sound or by other electronic messages. 19.2. For restrictions on the effectiveness of “reaches” see comments in Article 15. See also UNCITRAL Model Law on Electronic Commerce Art. 5.  [*465]  H. CISG Art. 20(1)   (1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. OPINION   A period of time for acceptance fixed by the offeror in electronic real time communication begins to run from the moment the offer enters the offeree’s server. A period of time for acceptance fixed by the offeror in e-mail communication begins to run from the time of dispatch of the e-mail communication. “Means of instantaneous communications” includes electronic real time communication. The term “reaches” is to be interpreted to correspond to the point in time when an electronic communication has entered the offeree’s server. COMMENT   20.1. CISG Art. 20(1) provides a help to the interpreter of ambiguously stated periods for acceptance. When a period of, for instance, four days is stated in an offer without any indication from when this four-day period starts to run, CISG Art. 20(1) provides a different starting point depending on the medium the offer was sent. For telegrams the period starts from the time it is handed in for dispatch. If it is sent in a letter, from the date shown on the letter, or if no such date is shown, from the date on the envelope. For telephone, telex or other means of instantaneous communication the period begins to run from the moment that the offer reaches the offeree. 20.2. The problem now in consideration is how to determine when the period starts to run in case the offer is made by electronic means. We can envisage three main types of electronic  [*466]  messages, (1) offers in e-mail, (2) offers at passive web sites, and (3) offers at chat sites where communication occurs in real time. E-mail 20.3. E-mail is not instantaneous communication and, with respect to dating, it is not wholly equivalent to letters sent in envelopes. CISG does not provide any interpretative help with respect to e-mails and uncertain situations must be solved by ordinary means of interpretation taking into account that the party being unilaterally bound (the offeror) normally deserves more protection. E-mails normally produce information about when they were sent and when they were received. CISG provides no direct guidance as to whether the time span starts to run from the time of sending or receiving. A period of time for acceptance fixed by the offeror in e-mail communication begins to run from the time of dispatch of the e-mail communication. This is so because this time can be easily ascertained and e-mails can be seen as functional equivalents of letters. Passive Web Sites 20.4. When offers are contained in web sites it is often uncertain whether they constitute offers in the legal sense. However, the web site holder may explicitly state that his offer is binding during a certain period of time. No guidance can be found in CISG where the web site holder has provided a time limit of three days without specifying from when the time limit starts to run. Uncertain situations must be solved by ordinary means of interpretation taking into account that the party being unilaterally bound (the offeror) normally deserves more protection. This opinion does not cover non-real time communication over passive websites. Chatting in Real Time 20.5. Parties may communicate over the Internet by real-time communication (this is common for chat-programs). The technique is such that if the sender writes an “a” the letter “a” immediately appears on the addressee’s screen. The parties are both present at the same time and they may talk orally or write to each other just as if they were present in the same room or were talking over the phone. This type of communication qualifies as “instantaneous”. CISG Art. 20(1) applies also to electronic  [*467]  communication in real time. If the sender sends an offer and stipulates that it is binding for two hours, the period starts to run from the point in time when the message reaches the addressee, i.e. immediately. For real-time communication it is assumed that the addressee has indicated his willingness to receive electronic messages of the relevant type. See also UNCITRAL Model Law on Electronic Commerce Art. 5. I. CISG Art. 21(1)   (1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. OPINION   The term “oral” includes electronically transmitted sound provided that the offeree expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address. The term “notice” includes electronic communications provided that the offeree expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address. COMMENT   21.1. Information to the offeree about the late acceptance can be given in an electronic message. The important factor is that the information be conveyed to the offeree, not in what form it was conveyed. 21.2. For the effectiveness of electronic communication see comments in Art. 15 See also UNCITRAL Model Law on Electronic Commerce Art. 5. J. CISG Art. 21(2)   (2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers  [*468]  his offer as having lapsed or dispatches a notice to that effect. OPINION   The term “writing” covers any type of electronic communication that is retrievable in perceivable form. A late acceptance in electronic form may thus be effective according to this article. The term “oral” includes electronically transmitted sound and communications in real time provided that the offeree expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address. The term “notice” includes electronic communications provided that the offeree expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address. The term “dispatch” corresponds to the point in time when the notice has left the offeree’s server. A prerequisite is that the offeree has consented expressly or impliedly to receiving electronic messages of that type, in that format, and to that address. COMMENT   21.3. The purpose of this Article is to make a delayed acceptance effective when the offeror does not inform the other party that the acceptance has been delayed and the acceptance has reached the offeror too late. A typical situation is when an electronic acceptance is delayed and does not reach the offeror within the normal time-span. The article is only applicable if the acceptance is sent in a letter or other writing. The article applies also when the acceptance is sent by an electronic message as long as this electronic message fulfils the two functions of writing, i.e. that it can be understood and saved. 21.4. When the offeror provides a quick notice that that the acceptance has arrived too late, the acceptance is not effective. Information to the offeree about the late acceptance can be given in an electronic message. The important factor is that the  [*469]  information be conveyed to the offeree, not in what form it is conveyed. According to this Article such notice shall be communicated orally or by a [written] notice. The offeror may provide the information by electronically conveyed sound or by an electronic message under the precondition that the sender of the late acceptance has indicated that he is willing to receive such electronic messages. 21.5. It is enough that the notice has been dispatched; it does not have to reach the addressee. However, it must have been dispatched correctly. This means that the address must be correctly stated and that the sender uses a computer program that the addressee has indicated he is willing to accept. 21.6. The offeror should inform the offeree about a late acceptance by dispatching a notice. Dispatch occurs when the notice leaves the offeror’s server. If, however, the offeree does not use the kind of electronic communication that the notice is sent in, the offeror is not considered to have dispatched the notice. The offeree must have indicated that he is willing to receive electronic acceptances of the type and format used by the offeror. CISG Arts. 8 and 9 may be of assistance in determining whether the offeree has impliedly indicated his willingness to receive such messages. See also UNCITRAL Model Law on Electronic Commerce Arts. 5 and 6. K. CISG Art. 22   An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. OPINION   The term “reaches” corresponds to the point in time when an electronic communication has entered the offeror’s server, provided that the offeror expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.  [*470]  COMMENT   22.1. This article intends to provide a last time for withdrawal of an acceptance. In traditional means of communication this rule enables the sender of an acceptance to withdraw his acceptance by a faster means of communication. He may, for instance, send an acceptance by ordinary mail (snail mail) and later withdraw it by sending a fax that reaches the offeror before the mail. The problem in relation to electronic means of communication is that there are rarely any practical means of faster communication than electronic messages sent by e-mail or communicated over websites or other EDI-arrangements. However, the question becomes of practical importance in situations where the acceptance is sent by traditional paper mail and the withdrawal is sent electronically. 22.2. The underlying purpose of this article is to ensure that the offeror has an opportunity to read the withdrawal if he so chooses. It is not required that the offeror actually read the withdrawal, but rather that the withdrawal becomes accessible for reading (the distinction between ‘reach the mind’ and “reach the desk” or “reach the legal entity”). Therefore, when a withdrawal of assent has entered the offeror’s sphere of control, it must be assumed to have reached the offeror. 22.3. The proposition that a withdrawal only needs to be accessible and not actually read is designed to facilitate evidence. It is possible (more or less easily, but at least conceptually) to prove when a message becomes accessible; it is very difficult to prove when someone actually addressed his mind to it. See also UNCITRAL Model Law on Electronic Commerce Art. 15 L. CISG Art. 24   For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention “reaches” the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.  [*471]  OPINION   The term “reaches” corresponds to the point in time when an electronic communication has entered the addressee’s server, provided that the addressee expressly or impliedly has consented to receiving electronic communications of that type, in that format, and to that address. The term “orally” includes electronically transmitted sound and other communications in real time provided that the addressee expressly or impliedly has consented to receive electronic communications of that type, in that format, and to that address. COMMENT   No comment since the issues are covered under the relevant articles concerning “reaches” in articles 15, 16(1), 17, 18(2), 20(1), 21(2), 22 and “oral” in articles 18(2) and 2(2) M. CISG Art. 26   A declaration of avoidance of the contract is effective only if made by notice to the other party. OPINION   The term “notice” includes electronic communications, provided that the addressee expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address. COMMENT   26.1. Information to the other party that the contract is avoided can be given in an electronic message. The important factor is that the information be conveyed to the offeree, not in what form it is conveyed. 26.2. For the effectiveness of electronic notices see comments in Article 15. See also UNCITRAL Model Law on Electronic Commerce Art. 5  [*472]  N. CISG Art. 27   Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication. OPINION   A notice, request or other communication may be given or made electronically whenever the addressee expressly of impliedly has consented to receiving electronic messages of this type, in that format, and to that address. COMMENT   27.1. Notices, requests or other communication to a party can be given in an electronic message. The important factor is that the information be conveyed to the other party, not in what form it is conveyed. 27.2. For the effectiveness of electronic notices, requests or other communication see comments in Article 15. See also UNCITRAL Model Law on Electronic Commerce Art. 5. O. CISG Art. 32(1)   (1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods. OPINION   The term “notice” includes electronic communications, provided that the buyer expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.  [*473]  COMMENT   32.1. Information to the buyer about consignment of the goods can be given in an electronic message. The important factor is that the information be conveyed to the buyer, not in what form it is conveyed. 32.2. For the effectiveness of information to the buyer see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5 P. CISG Art. 39   (1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. OPINION   The term “notice” includes electronic communications provided that the seller expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address. COMMENT   39.1. Information to the seller about lack of conformity of the goods can be given in an electronic message. The important factor is that the information be conveyed to the seller, not in what form it is conveyed. 39.2. For the effectiveness of notice to the seller see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5 Q. CISG Art. 43   (1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim.  [*474]  (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. OPINION   The term “notice” includes electronic communications provided that the seller expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address. COMMENT   43.1. Information to the seller about the nature of a right or claim of a third party can be given in an electronic message. The important factor is that the information be conveyed to the seller, not in what form it is conveyed. 43.2. Even when the seller has not indicated his willingness to receive electronic messages of the relevant type, it may be nevertheless established that he was aware of the claim in accordance with CISG Art. 43(2). 43.3. For the effectiveness of notice to the seller see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5. R. CISG Art. 47   (1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations. (2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance. OPINION   The term “notice” includes electronic communications.  [*475]  COMMENT   47.1. Information to the buyer from the seller that the seller will not perform within the fixed period can be conveyed by an electronic message. When the buyer has received such electronic notice, he may choose to resort to a remedy for breach of contract. S. CISG Art. 63   (1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations. (2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance. OPINION   The term “notice” includes electronic communications. COMMENT   63.1. Information to the seller from the buyer that the buyer will not perform within the fixed period can be conveyed by an electronic message. When the seller has received such electronic notice, he may resort to any relevant remedy for the breach of contract. T. CISG Art. 65   (1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. (2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails  [*476]  to do so within the time so fixed, the specification made by the seller is binding. OPINION   Specifications and communications may be electronic provided that the addressee expressly or impliedly consented to receiving such communications. COMMENT   65.1. Information to the other party about specifications or communications about specifications can be given in an electronic message. The important factor is that the information be conveyed to the other party, not in what form it is conveyed. 65.2. For the effectiveness of specifications and communications to the other party see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5. U. CISG Art. 67   (1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. (2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise. OPINION   The term “notice” includes electronic communications provided that the buyer expressly or impliedly has consented to receiving electronic communications of that type, in that format and to that address.  [*477]  COMMENT   67.1. Information to the buyer about the goods being clearly identified to the contract can be given in an electronic message. The important factor is that the information be conveyed to the buyer, not in what form it is conveyed. 67.2 The buyer need not have consented to electronic communication in order to make an electronic notice under article 67(2) effective. The reason is that the buyer’s consent is not needed for other modes of identification such as markings of the goods. 67.3. For the effectiveness of communications to the buyer about identification see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5. V. CISG Art. 71   (1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of: (a) a serious deficiency in his ability of perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract. (2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. (3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance. OPINION   The term “notice” includes electronic communications, provided that the addressee expressly or impliedly has consented to receiving electronic communications of that type, in that format, and to that address.  [*478]  COMMENT   71.1. Information to the other party about suspending performance can be given in an electronic message. The important factor is that the information be conveyed to the addressee, not in what form it is conveyed. 71.2. For the effectiveness of communications to the other party about suspending performance see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5. W. CISG Art. 72   (1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. (2) If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance. (3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations. OPINION   The term “notice” includes electronic communications, provided that the addressee expressly or impliedly has consented to receive electronic communications of that type, in that format, and to that address. COMMENT   72.1. Information to the other party about an intention to declare a contract avoided can be given in an electronic message. The important factor is that the information was conveyed to the addressee, not in what form it was conveyed. 72.2. For the effectiveness of communications to the other party about an intention to declare a contract avoided see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5  [*479]  X. CISG Art. 79   (1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. (2) If the party’s failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. (3) The exemption provided by this article has effect for the period during which the impediment exists. (4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt. (5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention. OPINION   The term “notice” includes electronic communications, provided that the addressee expressly or impliedly has consented to receiving electronic communications of that type, in that format, and to that address. COMMENT   79.1. Information to the other party about an impediment can be given in an electronic message. The important factor is that the information be conveyed to the addressee, not in what form it is conveyed. 79.2. For the effectiveness of information to the other party about an impediment see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art.5  [*480]  Y. CISG Art. 88(1) and (2)   (1) A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party. (2) If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with article 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell. OPINION   The term “notice” includes electronic communications, provided that the addressee expressly or impliedly has consented that he is willing to receive electronic communications of that type, in that format, and to address. COMMENT   88.1. Information to the other party about an intention to sell the goods can be given in an electronic message. The important factor is that the information be conveyed to the addressee, not in what form it is conveyed. 88.2. For the effectiveness of communications to the other party about an intention to sell the goods see comments in Articles 15 and 27. See also UNCITRAL Model Law on Electronic Commerce Art. 5   Credit:ivythesis.typepad.com

Pace International Law Review

OPINION: CISG-AC PUBLISHES FIRST OPINION+ SEC-NOTE-1: + The following Introductory Note and Opinion were provided by Professor Albe...

Scholarship Amok: Excesses in Pursuit of Truth and Tenure

EXCESS IN PURSUIT OF TRUTH AND TENURE (AN ANALYSIS)         The Journal article of Yale Law Professor Fred Rodell during the early 1937’s created a worldwide sensation in the practice of law and law students about his judgment and criticism about the writings of legal scholars and its literary relevance to scholarship in which he thought obscure and unnecessary but only done mostly for the purpose of promotion and tenure. According to Fred the journal and law review of scholars met the following criteria that are significant, analytical, maybe well written and disinterested. He claims that there are two things that are wrong with almost all legal writings. The first is its style and the second is its content.       He believed that reviewing the journal is just a waste of time and it may even be irrelevant since it can be the same in meaning only different in words, scholars my exert their effort only to be misjudged because they cannot or in any way change or alter but can only give reviews to such law in the form of journal. He even insisted that the journals are just legislation reviews of garbage in the sense that repetitive and redundancy abound, long winding, boring but still the same review hiding in plagiarism and reviews should be spent on a more progressive manner. He concluded that the law is just reviewing the same law for the purpose of printing so that they can earn from pages to pages.       The review of scholars are never practical in his eyes knowing that there are over 800 periodicals to review or 5000 journals yearly and it would take forever that there are possibilities always everyday there will be a published reviews because of the newsprint media. He thought about the numbers how it would be published. He has challenge the scholars why there is a need to review the obscure law review of manure or why there is a need to review 141 several articles of solid waste management? What about the potato law? In his mind he knew that the only purpose of the review is maybe to correct its ideas and its wrong literacy rather than the scholars would be deceive and treat this activity as their chosen God.           The words or Rodell arouse the emotion of anger of most of his colleague when he himself is a scholar as if he self denounce his own profession and mostly rebel against his journal and critical against his words. According to lawyer professor Kenneth Lasson; Lawyers are all intelligent and honorable in their advocacy, fair and ethical and their journals are published in a well edited manner. Scholars exert their effort to review and research the journal of law although it may seem conventional but it’s all rewarding for the purpose of their effort they should not be disregarded nor belittled in their own rights. The research of scholars is comprehensive, engaging and rightful to be published, that is why every law school has their own review of the law and they have their own reputation to depend.       Schools of law defended their curriculum to be just and binding and students are proud without violence and they permeate the fate that they have joined and they were contented to do it only for the purpose of their new found profession and they succeed. Lawyers must learn to sip the fruit of their labor before they can benefit, they are tested and trained so they can be strong rather be decisive and rebellious about their works. They must be servant before they can be master and they must learn to follow before they command and it is just right to do things that has been concluded as effective the curriculum of such law and the generation of such journals are just enough for the scholars.       Their Journals are their possession even if they are not published in the original content or maybe comparative to other scholars they toil day and night and they are willing to suffer the consequence of their own course only to depend that they are worthy and they should be praised. In today’s practice the advent version of review is much easier because of the use of the internet and computer technology that can type and read words that they need to review but review of scholars is always a practice and published in the form of journal publication of law students who want have a degree of law.  They are never unwilling and their desire rise up to the occasion their commitment is always strong to follow such advocacy, some will succeed and some will fail some of their research can even be a part of the publication or it can be a part of history but whatever criticism they have had the scholars and their journals still remains the same practice as they have hundred years ago. (Like waters for the law review: An introduction to the language of law by: Ross E. Davies)   Credit:ivythesis.typepad.com

Scholarship Amok: Excesses in Pursuit of Truth and Tenure

EXCESS IN PURSUIT OF TRUTH AND TENURE (AN ANALYSIS) The Journal article of Yale Law Professor Fred Rodell during the early 1937’s...

ARTICLE: MISSING SPECIFICATIONS IN INTERNATIONAL SALES: ARTICLE 65 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS

color:black">  BIO:   Lecturer in “private law aspects of international trade”, at The Law Faculty of the University of Troms<sl o>, Norway. Editor of the International Trade Law Monitor – <http://itl.irv.uit. no/trade law/>. SUMMARY:   … (1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. … In the latter case, the rule that the seller can only make the specification unilaterally in accordance with the requirements of the buyer that “may be known to.” … The setting of specifications can also have a bearing on the seller’s right to obtain specific performance under Article 62, or to avoid the contract under Article 64. … The buyer’s non-compliance can have a bearing on a seller’s right to suspend performance and to determine whether there has been an anticipatory breach of contract. … Where the breach is “fundamental,” it gives the seller the right to avoid the contract. …   TEXT:  [*239]  A fundamental principle of the United Nations Convention on Contracts for the International Sale of Goods 1 is the recognition of the international character 2 of the transaction it regulates. Cancellation of an international contract can impose greater burdens than the typical domestic transaction. Accordingly, the Convention contains a number of provisions designed to help preserve the bargain the parties have made. 3 Article 65 is one such provision. It states:  [*240]    (1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. 4 (2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding. 5   Since the discussion over its retention at the Vienna Conference, 6 Article 65 has generated little academic debate beyond the commentaries in which it appears 7 and even less “litigation.” 8 This paper examines the workings of the provision through analysis of its key words. 9 It seeks to develop and supplement an understanding of their meaning by reference to the legislative history of this provision, scholarly writings on it and, where possible, by analogy 10 to other parts of the Convention.  [*241]  An attempt has been made to place Article 65 within the context of the Convention as a whole. Article 65 applies in circumstances where not all the details related to the characteristics of the goods are fixed in the agreement. It is agreed or assumed from the Article that the buyer should specify the missing details later. The Article leaves no doubt that the contract is formed without the details, which are yet to be provided by the buyer. Where the buyer fails to provide these specifications, the Article facilitates the seller’s ability to perform, providing a convenient mechanism for the seller to keep the contract alive by laying down a procedure whereby the seller can ultimately supply the seller’s own specifications. 11 This enables the seller to perform a contract that would otherwise have been too vague. The Article protects the buyer by the obligations it places on the seller who chooses to use the provision. 12 It also gives the buyer every opportunity to make its own specifications, even after the time that the buyer should have done so. 13 By allowing the fixing of the goods in a specification sale, Article 65 may assist in the determination of damages under Articles 74 to 77. 14 Under The Contract   The buyer’s obligation to set the specifications may be expressly stated in the contract or may arise under the contract pursuant to Article 8 (interpretation of statements or other conduct of a party) 15 or Article 9 (usages and practices applicable to the contract). 16 The Secretariat Commentary appears to distinguish between a buyer’s contract right to set the specifications and contract obligation to set the specifications. 17 Other commentators do not so distinguish. Instead, they hold that a right  [*242]  to specify should be interpreted as an obligation to specify. 18 The latter is the preferred view. Article 65 only applies when a contract of sale has been concluded. Under the Convention, for a proposal to be capable of ripening into a contract, it must be “sufficiently definite.” 19 A prerequisite to a proposal ripening into a contract is that the proposal must indicate the goods. 20 A general agreement that the buyer should specify the goods required would be too broad to qualify under Article65 and “would have no legal effect.” 21 However, an indication of the goods without specifying their “form, measurement or other features,” 22 can be regarded as sufficient. 23 Form, measurement or other features   Intent 24 is the key to determining the scope of the phrase “form, measurement or other features.” 25 Where the requisite intent is present, this phrase is sufficiently wide to cover most characteristics of the goods, including such matters as dimensions, size, shape, style, version, model, aspects of design, color, texture, hardness, quality, and technical details of the goods. One commentator is of the view that:   When the contract states a fixed price, rather than a ‘cost plus’ or similar formula, the parties probably would not intend that the buyer’s specifications should substantially affect the cost. Similarly, the parties probably would not intend that the seller could have wide discretion to decide the characteristics of the buyer’s goods. Consequently, references in the contract and in Article 65 to ‘the form, measurements or other features of the goods’ should be construed with sufficient strictness to avoid these problems. 26    [*243]  “Reasonable Time”   The phrase “reasonable time” appears in Article 65(1) and (2). 27 Article 65 provides that where the contract does not set the date on which the buyer is to make the specification, the seller may request him to make the specification within a “reasonable time.” 28 If the seller proceeds to fix the specification pursuant to Article 65(2), the buyer must be given a “reasonable time” within which to make a different specification. 29 In either instance, what is “reasonable” will vary depending on the circumstances of the case, including such factors as the location of the parties and their known requirements. No time is indicated by which the seller is to make his Article 65(1) request, or by which the seller is to inform the buyer of the details of a specification fixed by the seller pursuant to Article 65(2). In either case it should be early enough, with respect to the other obligations under the contract, to give the buyer reasonable time within which to comply (or to make a different specification), and for the seller subsequently to make delivery. 30 It has been said, with respect to the seller’s Article 65(1) request:   Where the seller invites the buyer only when the contract is nearing his performance, the period will be a short one for the buyer could adapt himself to the specification ever since the conclusion of the contract; and the mechanism regulated here cannot be abused so as to grant him additional options for observing the market situation to the detriment of the seller. 31   With respect to the seller’s Article 65(2) notice, it has been said that the reasonable time “will be a short time in general because the buyer is already in breach of contract and he is only required to make a decision.” 32 With respect to the time in which the seller is to act, “the seller should specify early enough to leave the buyer a reasonable time to react before  [*244]  manufacture must commence. Where this is no longer possible, the seller will reflect on whether he exercises his right at all.” 33 Receipt   The word “receipt” also appears in Article 65(1) and (2). 34 The general rule under Part III of the Convention states that “if any notice, request or other communication is given or made by a party … by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication.” 35 This rule does not apply to either a request under Article 65(1) or a notice of specification made by the seller pursuant to Article 65(2). In either case, to be effective, the communication must be received by the buyer. 36 This places an added burden on the seller 37 who must be assured that the communication has been received. 38  [*245]  Although the general rule on communications does not apply to the seller’s communications made pursuant to Article 65, it does apply to the buyer’s responses to such communications. A delay or error in the transmission of the response, or its failure to arrive, does not deprive the buyer of the right to rely on it, as long as the response was made by means appropriate in the circumstances. 39 May Be Known To   The right to request the buyer to make the specification is beneficial to the seller because it has “teeth.” If the buyer fails to make the specification, the seller may do so. 40 However, whether it will be prudent for the seller to take advantage of this right will depend on the circumstances. In the normal situation, the request alone should produce the response desired. When it does not, the reasons may range from the buyer who does not care as to the unspecified form, measurement or other features of the goods that he has ordered to the recalcitrant buyer who no longer desires to consummate the contract. In the latter case, the rule that the seller can only make the specification unilaterally in accordance with the requirements of the buyer that “may be known to.” the seller can present difficulties. These difficulties stem from the meaning of the phrase “may be known to.” Controversy can be associated with the dimensions of this phrase and what the seller knows or may be presumed to know. Elsewhere within the Convention there are several references to knowledge and awareness which express different gradations of the requirement. 41 The words “may be known to,” and the circumstances in which they are used, allow appropri [*246]  ate application of the tests provided by Article 8 (intent) 42 and Article 9 (usages) 43 in defining the scope of this phrase: The requirements of the buyer that the seller may be presumed to know and take into account with respect to the setting of specifications include the intent of the buyer that the seller is expected to have understood, as determined through application of Article 8, and any relevant usages that the seller should have taken into account as defined by Article 9. Articles 8 and 9 are contained in Part I, General Provisions, and permeate the Convention. An argument may be made that they should be applied directly to what the seller may be presumed to know when making the specifications. In any event, the circumstances in which “may be known to” is used within Article 65 make appropriate a closely analogous understanding to Articles 8 and 9, with much the same result: a uniform interpretation of Article 65 that is in accordance with the general principles on which the Convention is based. 44 Article 8 applies to pre-contract and post-contract communications and actions, which communications are similarly relevant under Article 65. Both the subjective and objective tests provided by Article 8 are relevant. Under Article 8(1) what the seller is asked is whether the seller “knew or could not have been unaware” of information which impacts upon the specification the seller is to make. 45 There are two parts to this standard. The first is “Could not have been unaware.” Of what a party “could not have been unaware,” it has been suggested that this “does not [impose] an express obligation to conduct relevant research.” 46 The second is “What may be known.” Similarly, what “may be known to” the seller, has been said to require knowledge or a strong assumption of knowledge on the part of the seller, so that a seller “may have known” requirements of the buyer that the seller is presumed to know, having been in a good position to learn them. 47 It is said that although this “does  [*247]  not require the seller … to make efforts to obtain such knowledge … [the seller] must not ignore clues.” 48 The objective tests in Article 8(2) and (3) offer further assistance in defining the scope of what the seller is to be regarded as having known or understood from communications with the buyer (providing a measure of the comprehension objectively expected of the seller with regard to any “clues”). 49 Article 8(2) applies whenever it is not possible to apply Article 8(1). This suggests that, based on the buyer’s communication to the seller, the seller should have the understanding of “a reasonable person of the same kind [as the seller] … in the same circumstances.” 50 Article 8(3) states that in determining the degree of “understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties. 51 Where there is a usage of which the seller should take account in making his specification, the formulation in Article 9 which uses the words “knew or ought to have known” 52 should be applied. Distinguishing the formulations in Article 8 and 9, it has been commented that “‘Could not have been unaware’ appears close to actual knowledge. It can be contrasted with ‘ought to have known’ or ‘discovered’ which is used in several other provisions of the Convention … While the latter formula appears to impose a duty to investigate the former may not ….” 53 It has also been suggested that in accordance with the principle of good faith, the seller is obligated to take into consideration “probable or presumed needs of the buyer;” and that the seller cannot, for example, take the chance of specifying non-stylish goods “when he is aware of fashion trends in the buyer’s coun [*248]  try, even when he is not informed of the concrete needs of the buyer.” 54 That a party in the sale of goods has responsibility for the acts or omissions of his “employees” 55 may be stated to be a tenet of the Convention and perhaps further as lex mercatoria 56 for international sales. This may be assumed from the discussion of the formulation of the text for Article 80 of the words “by his own act or omission” 57 where it was concluded that no additional provision was necessary to include “persons whom that party may employ in the performance of the contract” as it was universally accepted that such “employees” would be included by reference to the party. 58 This must also apply to the knowledge of such employee or agent, either:   1. By an analogous presumption applied to the knowledge of employees. The seller and his relevant employees being regarded as a single entity. Such employees being understood to be covered within the meaning of the word “seller”. Thereby imputing upon the seller all the knowledge of his employees who are part of the transaction; or [*249]  2. By direct application of the principle – of the seller having responsibility for the acts and omissions of employees involved in the transaction. Where the seller is unaware of relevant knowledge possessed by his “employees” this can be regarded as an omission on the part of the seller for which the seller is responsible. The seller should thus act to ensure that he possesses relevant information known to his “employees” before making the specification himself.   The former imposes a more strict responsibility. The seller cannot excuse itself from failure to discover some obscure item of information provided by the buyer to the seller’s employee, which may not on its own appear to be significant, and, of which, on the latter formulation, the seller may be able to avail itself in some circumstances. This could be unduly harsh on a long drawn-out transaction involving several individuals on both sides, or the seller’s side. Given the safeguards provided the buyer within Article 65, the latter interpretation should be sufficient. In either event, it is clear that, with respect to “employees”, 59 the seller is under an obligation at the very least, to investigate what they know about the buyer’s requirements that is relevant to the specification the seller makes. However, the seller who did not actually know and could not have known the buyer’s requirements, is not bound to consider them. Determination of what “may be known to” the seller is a question of evidence and appraisal of the circumstances. 60 If the seller avails himself of Article 65, on failure to make specifications in accordance with the provisions of Article 65, the seller is himself in breach of contract. 61 The remedies available to the buyer are all those that may be relevant in the circumstances as resulting from the seller’s breach. 62 Where the seller does not take into account requirements which “may be  [*250]  known to” him, and subsequently delivers goods, such goods would be regarded as non-conforming goods. 63 Also, in considering evidentiary issues, the seller must be mindful of the Convention’s “informality principle,” pursuant to which evidence of such knowledge need not be confined to written communications. 64 Seller may   The seller’s right to use the remedy prescribed by Article 65 is a discretionary one, the seller is under no obligation to do so. However, whether the seller does or does not use the remedy, the seller must take into account the consequences for mitigation of loss. 65 Several factors will influence the seller’s decision as to whether to utilize the provision. Practical considerations will be important, including: the time available for performance under the contract; the seller’s appraisal of the buyer’s commitment to the contract; the certainty of payment under the contract; and any implications for future business relations. Without prejudice   Action under Article 65 is “without prejudice” to other remedies available to the seller. Damages are the typical remedy sought for breach of contract. For the seller to assert his right to damages 66 he “must take such measures as are reasonable in the circumstances to mitigate the loss.” 67  [*251]  The setting of specifications can also have a bearing on the seller’s right to obtain specific performance under Article 62, 68 or to avoid the contract under Article 64. 69 In the case of specific performance, Article 65 is designed to assist in the prevention of the buyer escaping its obligations by refusing to supply missing specifications when contractually bound to do so. However, an attempt to use Article 65 as a device for making the buyer perform his part of the contract in circumstances in which he is reluctant or refuses to do so, will in practice seldom be the most beneficial legal solution for the seller. In these circumstances, Article 65 leaves room for the buyer to raise complicated questions of evidence and appraisal. The fact pattern that leads to examination of Article 65 (buyer’s non-compliance with his obligation to specify the form, measurement or other features of the goods) can also be cross-referenced to Article 80 as such a non-compliance by the buyer can be a defense to allegations of non-performance on the part of the seller. Other cross-references to consider are Articles 71 and 72. The buyer’s non-compliance can have a bearing on a seller’s right to suspend performance and to determine whether there has been an anticipatory breach of contract. Binding – Article 65 and its interaction with the right to avoid. Special issues   Article 65 confers an optional right 70 on the seller to make his own specifications and keep the contract alive. 71 Furthermore, Article 65 is to operate without prejudice to the seller’s other rights. 72 Where the seller chooses not to perform by making his own specifications, but instead makes a request that the buyer should perform, under Article 62, the breach may eventu [*252]  ally become fundamental, if the buyer refuses to perform. 73 The “without prejudice” language of Article 65 appears to indicate that it is not intended to affect any other available remedies, including the right to avoid the contract. Despite this, taking the Convention as a whole and the integral working of its provisions, it would appear that exercise of seller’s rights under Article 65 can affect the seller’s right to avoid the contract. This area is complicated because Article 65 is designed to assist performance of the contract, not its avoidance. Put simply, the ability for the seller to make a binding specification in Article 65 is not synonymous with performance, nor is it necessarily regarded by the seller as making an election to perform. 74 Yet, prior to use of Article 65, the seller may be entitled to avoid the contract should the buyer not supply the missing specifications; and after application of the Article, this right to avoid may be lost. 75 One caveat is that the phrase “without prejudice to any other rights” does not necessarily mean that a failure to exercise this optional remedy will not prejudice a party’s ability to exercise still another right. As an example, like Article 65, Article 63 provides an optional remedy 76 (in that case, the CISG’s “Nachfrist”-type remedy). 77 In that setting, a court has indi [*253]  cated that failure to exercise this optional remedy prejudiced a buyer’s ability to avoid the contract. 78 There can be circumstances in which a similar logic may be applied to a seller’s failure to exercise the optional remedy provided under Article 65. Fundamental breach and avoidance of contract under Article 64(1)(a) or Article 72   The problem concerns the relationship between the provisions of Article 65 being “without prejudice to any other rights” and those defining fundamental breach 79 and the consequentially available remedies. 80 Where the breach is “fundamental,” it gives the seller the right to avoid the contract. 81 The buyer’s initial failure to make a specification will not amount to a fundamental breach unless the seller is deprived of what he is entitled to expect under the contract. 82 This can only happen where time is, for whatever reason, essential to the seller. On their natural meaning, the words “without prejudice to any other rights” in Article 65(1) might seem to apply to the whole of Article 65 and the remedy it provides. For this to be true, the seller would have to be entitled to avoid even after the seller’s specification has become binding under the Article. Whether this is possible, will depend on the way in which Article 65 operates in relation to a fundamental breach as defined in the Convention. 83 If the effect of the breach is to be looked at in the light of the seller’s specifications having become binding, and, thus, enabling the seller to perform, the breach will not be fundamental. 84 The result is that “without prejudice” to the seller’s other rights, as used in Article 65 with respect to avoid [*254]  ance of the contract, is confined to the seller putting into motion the apparatus for making a binding specification, and no longer applies once these specifications have become binding. 85 Avoidance of contract under Articles 63 and 64(1)(b)   The Secretariat Commentary suggests, with respect to factual circumstances to which Article 65 would apply, that one of the alternatives includes that under Article 63 the seller may “fix an additional period of reasonable length for the buyer to perform his obligation,” 86 and on his subsequent non-performance, the seller may avoid under Article 64(1)(b). 87 The obligation to which Article 64(1)(b) refers is restricted to the buyer’s obligation to “perform his obligation to pay the price or take delivery of the goods.” 88 To extend it to the buyer’s obligation to provide specifications as part of the buyer’s “obligation to … take delivery of the goods” 89 would put a strained construction on the wording of Article 64(1)(b), which singles out and limits its scope to the two primary obligations of the buyer, namely, payment and delivery. 90 Indeed several authors regard the Commentary to be in error on this point. 91 Clearly, an argument against the right to avoid after the fixing of an additional time is that a minor breach of contract should not be made fundamental by the setting of a deadline. However, without Article 65 it is likely that a similar effect will  [*255]  eventually result (the seller being entitled to avoid for fundamental breach), unless it is possible for the seller also to perform without the aid of Article 65, as argued above. FOOTNOTES: href=”#r1″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1025″>n1. U.N. Convention on Contracts for the International Sale of Goods, U.N. Doc. A/Conf. 97/18 (1980), reprinted in 19 Int’l Legal Mats. 668 1980 [hereinafter CISG or Convention]. Official Records of the United Nations Conference on Contracts for the International Sale of Goods, 10 March 11 April, 1980 A/Conf. 97/19 [hereinafter Official Records]. The UN-certified English text is published in 52 Fed. Reg. 6262, 6264-6280 (Mar. 2, 1987). href=”#r2″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1026″>n2. As of February 1997, the international sales law consists of 47 Contracting States: Argentina, Australia, Austria, Belarus, Belgium, Bosnia-and-Herzegovina, Bulgaria, Canada, Chile, China, Cuba, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Finland, France, Georgia, Germany, Guinea, Hungary, Iraq, Italy, Lesotho, Lithuania, Mexico, Netherlands, New Zealand, Norway, Poland, Republic of Moldova, Romania, Russian Federation, Singapore, Slovak Republic, Slovania, Spain, Sweden, Switzerland, Syrian Arab Republic, Uganda, Ukraine, United States of America, Uzbekistan, Yugoslavia, and Zambia. href=”#r3″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1027″>n3. Illustrated by the gap filling for price where none is agreed Article 55. Also by the restricted grounds for avoidance of contract Articles 49, 64 and 73. Further by such Articles providing remedies as 46, 47, 48, 50, 51, 52(2), and 65. Beyond these Articles it may be described as pervasive throughout the Convention and manifested in the Convention’s implied terms which provide the parties with an agreement in the absence of their agreeing express terms. href=”#r4″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1028″>n4. CISG, supra note1, art. 65. Italicization of keywords added by author. href=”#r5″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1029″>n5. CISG, supra note 1, art. 65. href=”#r6″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1030″>n6. The text of the Vienna Conference appears in Annex I of the Final Act of the 1980 Vienna Conference, U.N. Doc. A/Conf. 97/19 (1980) [hereinafter Vienna Conference]. href=”#r7″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1031″>n7. Article 65 is historically tied to Article 67 of the Uniform Law for International Sales (ULIS) under the 1964 Hague Sales Convention and was Article 61 in the 1978 UNCITRAL Draft Convention. There was considerable discussion in the Vienna Conference as to whether Article 61 of the Draft Convention should be retained. See Vienna Conference, supra note 6. Suggestions included that it gave the seller a privilege for which the buyer had no equivalent; that it was not in line with existing trading practice, which gave adequate protection in the provisions related to fundamental breach. For a comparison with the earlier ULIS text, see V. Knapp, Specification by Seller, in Commentary on the International Sales Law: The 1980 Vienna Sales Convention 476 (C. M. Bianca & M. J. Bonell eds., 1987). href=”#r8″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1032″>n8. The word “litigation” encompasses reported arbitral proceedings as well. href=”#r9″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1033″>n9. The key statutory words are: “under the contract”; “form, measurement or other features”; “reasonable time”; “receipt”; “may be known to”; “seller may”; “without prejudice”; and “binding”. href=”#r10″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1034″>n10. For further reading on this subject see J. Hellner, Gap Filling by Analogy – Article 7 of the U.N. Sales Convention in its Historical Context, in Festskrift till Lars Hjerner, Studies in International Law 219 (Norstedts Forlag, et al. eds., 1990). href=”#r11″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1035″>n11. See CISG, supra note 1, art. 65(1). href=”#r12″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1036″>n12. See id. art. 65(2). href=”#r13″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1037″>n13. See id. href=”#r14″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1038″>n14. See CISG, supra note 1, arts. 74 to 77. For other reference to the role of Article 65 in the context of its antecedent, Article 67 of the ULIS, see Hans Dolle, Kommentar zum Einheitlichen Kaufrecht 394 (1976). For specific references to CISG Articles 74 and 75, see J. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention 447 (2d ed. 1991). href=”#r15″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1039″>n15. CISG, supra note 1, art. 8. href=”#r16″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1040″>n16. See id. art. 9. href=”#r17″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1041″>n17. Secretariat Commentary, CISG Ann. art. 65, P5 (1993). href=”#r18″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1042″>n18. Knapp, supra note 7, at 482. See also Fritz Enderlein & Dietrich Maskow, International Sales Law 249 (1992). href=”#r19″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1043″>n19. CISG, supra note 1, art. 14. href=”#r20″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1044″>n20. Knapp, supra note 7, at 477. href=”#r21″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1045″>n21. See id. href=”#r22″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1046″>n22. See CISG, supra note 1, art. 65. href=”#r23″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1047″>n23. Secretariat Commentary, supra note 17, P4. href=”#r24″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1048″>n24. For a definition of intent, see CISG, supra note 1, art. 8. href=”#r25″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1049″>n25. CISG, supra note 1, art. 65(1). href=”#r26″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1050″>n26. Honnold, supra note 14, at 447-48. href=”#r27″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1051″>n27. CISG, supra note 1, art. 65. href=”#r28″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1052″>n28. See id. art. 65(1). href=”#r29″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1053″>n29. See id. art. 65(2). href=”#r30″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1054″>n30. See Enderlein & Maskow, supra note 18, at 250. href=”#r31″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1055″>n31. See id. href=”#r32″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1056″>n32. See id. at 252. href=”#r33″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1057″>n33. See id. at 251. href=”#r34″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1058″>n34. CISG, supra note 1, art. 65. href=”#r35″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1059″>n35. See id. art. 27. href=”#r36″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1060″>n36. The two general rules on effective communications relate to dispatch (Part II, CISG, supra note 1, art. 24) and to receipt (Part III, CISG, supra note 1, art. 27). Receipt as used here is regarded as analogous to its definition and use in Part II. Article 24 which applies to Part II of the Convention determines for that Part when a communication “reaches” the person to whom it is addressed. See Honnold, supra note 14, at 249. It is persuasively argued that it should be applied by analogy to the exceptions to the dispatch rule applied in Part III of the Convention. See Honnold, supra note 14, at 250. This results in a consistent solution for the definition of receipt within the Convention and means that the much greater detail existing on receipt in relation to Article 24 can be applied here. See, e.g., the Official Records of the prior uniform law, ULIS, p. 26.   Because a communication that ‘reaches’ the addressee when it is delivered to his place of business or mailing address … will have legal effect even though some time may pass before the addressee … knows of it … even thought the addressee may not know of its delivery. (Secretariat Commentary, paragraphs 3 and 4), a prudent response to application of Article 24 concepts to Part III of the Convention is the use of a contract clause which identifies by position title, parties to whom notices or other communications must be sent.   A. Kritzer, 1 Int. Contract Man., 193 (1994). href=”#r37″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1061″>n37. Burden of proof and other procedural issues are traditionally for the determination of the domestic court; further discussion is outside the scope of this paper. href=”#r38″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1062″>n38. A German court has added a further definition to the Convention’s term “reaches.” See Amstergericht Kehl 6 October 1995 (3C 925/93) Wirtschaftsrechtliche Beratung (Munchen) 1996, 398. There, the court held that to “reach” the addressee, the communication should be in the addressee’s language. Id. href=”#r39″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1063″>n39. See CISG, supra note 1, art. 27. href=”#r40″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1064″>n40. See id. art. 65. href=”#r41″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1065″>n41. Provisions on anticipatory breach and installment contracts contain three gradations of knowledge: “is clear that” (CISG, supra note 1, art. 72); “gives good grounds to conclude” (Id. art. 73); and “becomes apparent that” (see id. art. 71). Elsewhere, the Convention contains other gradations of knowledge: “knew” (see id. at arts. 31(b) and 43(2)); “known to” (see id. at arts. 9(2), 10(a), and 35(2)(b)); “is aware of” (CISG, supra note 1, art. 69(2)); “knew or could not have been unaware of” (see id. at arts. 8(1), 35(3), 40, 42(1) and 42(2)(a)); “knew or ought to have known” (see id. at arts. 9(2), 38(3), 49(2)(b)(i), 64(2)(b)(i), 68, 74 and 79(4)); “has become aware or ought to have become aware of” (see id. art. 43(1)); and “discovered or ought to have discovered” (see id. art. 82(2)(c)). href=”#r42″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1066″>n42. CISG, supra note 1, art. 8. href=”#r43″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1067″>n43. See id. art. 9. href=”#r44″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1068″>n44. See id. art. 7. href=”#r45″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1069″>n45. See id. art. 8(1). href=”#r46″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1070″>n46. Enderlein & Maskow, supra note 18, at 170. href=”#r47″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1071″>n47. See id. at 251. href=”#r48″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1072″>n48. See id. href=”#r49″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1073″>n49. See CISG, supra note 1, art. 8. href=”#r50″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1074″>n50. See id. art. 8(2). href=”#r51″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1075″>n51. See id. art. 8(3). As of particular interest, and beyond the scope of this paper, other commentaries on the Convention should be examined for further elucidation with respect to the scope of Article 8. href=”#r52″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1076″>n52. CISG, supra note 1, art. 9. href=”#r53″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1077″>n53. The United Nations Convention on Contracts for the International Sale of Goods: New Zealand’s Proposed Acceptance, Report No. 23 of the Law Commission 40 (1992). For the text of this report, see Introductions to the CISG, supra note 38. href=”#r54″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1078″>n54. CISG, supra note 1, art. 7. This Article is concerned with the interpretation of the Convention. To apply here, the principle of good faith would be used in the interpretation of the scope that should be attributed to the words “known to” as used in Article 65. In addition to this there is a growing use of good faith and loyalty principles in relation to the Convention and international sales. Id. For references to building a good faith requirement into international sales contracts and loyalty to the other party to the contract as a general principle of the Convention, see, for the former, J.A. Manwaring, Reforming Domestic Sales Law: Lessons to be learned from the International Sale of Goods in Actes du colloque sur la vente internationale 146 (Peret and Lacasse eds., 1989); and, for the latter, Leif Sevon reported in J. Honnold, Einheitliches Kaufrecht und Nationales Obligationenrecht, in Uniform Words and Uniform Application. The 1980 Sales Convention and International Juridical Practice 139-40 (Peter Schlechtriem ed., 1987). href=”#r55″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1079″>n55. Employees, as used in this article, refers to persons engaged by the party in the performance of the contract. href=”#r56″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1080″>n56. Lex mercatoria is defined as the law merchant; commercial law. See Black’s Law Dictionary 911 (6th ed. 1990). href=”#r57″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1081″>n57. CISG, supra note 1, art. 80. href=”#r58″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1082″>n58. Exchange between Professors Rognlien (Norway – who raised the question), Maskow (German Democratic Republic), Michida (Japan), Khoo (Singapore), Loewe (Austria – Chairman), Shafik (Egypt). Summary Records of the First Comm., U.N. Conf. on Contracts for the Int’l Sale of Goods, 37th mtg., Agenda Items 87 and 88, at 430, U.N. Doc. A/Conf.97/C.1/SR.37 (1980). href=”#r59″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1083″>n59. Supra note 55. href=”#r60″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1084″>n60. See supra text accompanying note 37. href=”#r61″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1085″>n61. This includes in addition to the setting of specifications, the provision of notices and giving of reasonable time. It has been suggested that where the seller fails to take into account the requirements of the buyer the specification made will not be binding. Knapp, supra note 7, at 479. F. Enderlein & D. Maskow conclude otherwise and are consistent with the view expressed here. See Enderlein & Maskow, supra note 18. href=”#r62″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1086″>n62. See CISG, supra note 1, art. 45(1). Avoidance, as a remedy, is only available in the limited circumstances provided by the Convention. href=”#r63″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1087″>n63. See CISG, supra note 1, art. 35 (especially (1)and (2)(b)). href=”#r64″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1088″>n64. The informality principle provides that “sales contracts are not subject to any formal requirements” as applied to Articles 8(3), 11 and 29. See J. Rajski Form of Contracts, in Commentary on the International Sales Law: The 1980 Vienna Sales Convention 121 (C. M. Bianca & M. J. Bonell eds., 1987). href=”#r65″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1089″>n65. Literally, the sole consequence Article 77 imposes for non-mitigation of loss is the reduction of an otherwise applicable claim for damages. See CISG, supra note1, art. 77. On the other hand, resort to Article 7(2), general principles of the Convention, can likely lead to an expanded obligation to mitigate one’s loss. Id. art. 7(2). A basis for such a broader obligation would be the reading into the Convention of a general principle of “loyalty to the other party to the contract.” See Sevon supra note 54. For a further reference to the principle of loyalty to the other party, see Peter Schlechtriem, Recent Developments in International Sales Law, 18 Israel L. Rev. 309, 320-21 (1983). href=”#r66″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1090″>n66. CISG, supra note1, arts. 61 and 74, 75 or 76. href=”#r67″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1091″>n67. See id. art. 77. The Secretariat Commentary makes it clear that specifying a vessel can be a mitigation obligation of the seller in cases of delivery of the goods FOB INCOTERMS (free on board in compliance with terms) when the buyer defaults on his obligation to name the vessel. Secretariat Commentary, supra note 17, art. 62, P 9. The same principle would apply to specifications as to the nature of the goods under fact patterns encompassed by Article 65. href=”#r68″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1092″>n68. See CISG, supra note 1, art. 62. href=”#r69″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1093″>n69. Id. art. 64. For a fuller discussion of such matters and of “Nachfrist” issues under Article 63 see Enderlein & Maskow, supra note 18, at 240-41, and A. Kritzer, supra note 36, at 499-507. href=”#r70″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1094″>n70. The optional right is indicated by use of the word “may”. See CISG, supra note 1, art. 65(1). href=”#r71″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1095″>n71. See id. art. 65(1). href=”#r72″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1096″>n72. See id. art. 65. href=”#r73″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1097″>n73. See id. art. 62. An exception to this is where, looking to the intent of the parties (Article 8), it is clear that the selection is of no importance to the buyer. See id. art. 8. In this circumstance, the seller is obliged to supply the goods as required under Article 35 of the Convention. See id. art. 35. href=”#r74″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1098″>n74. The remedy in Article 65 provides the mechanism for supplying missing specifications consequently making performance possible. This is distinct from performance. The language used appears to indicate that Article 65 is not meant to be inconsistent or to interfere with the right to avoid. Specifically, one might assume (mistakenly as it turns out) that no election is being made at the time of using Article 65 to perform (i.e., not to avoid) and that the words within the Article “without prejudice to any other rights” include the remedy of avoidance of contract if then available. href=”#r75″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1099″>n75. For example, see Official Records supra note 1, at 51-52. Other commentaries, however, point out the incompatibility of the two remedies. Enderlein & Maskow conclude “the seller has no obligation to make the specification himself …if he specifies, nevertheless, he insofar removes for himself the right to avoid the contract.” Enderlein & Maskow, supra note 18, at 251. href=”#r76″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1100″>n76. CISG, supra note 1, art. 63. href=”#r77″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1101″>n77. Involving the fixing of an additional period within which to perform an obligation that is due. In the case of payment of the price and taking delivery, failure to perform after this additional time permits the seller to avoid the contract, under Article 64(1)(b). For a discussion of “Nachfrist” issues under Article 63, see Enderlein & Maskow, supra note 18, at 240-241. For a detailed analysis of Article 63, see A. Kritzer supra note 36, at 499-507. href=”#r78″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1102″>n78. Amtsgericht Oldenburg in Holstein (Germany) 24 April 1990, IPRax (1991) 336. See UNCITRAL abstract reported in A/CN.9/SER.C/Abstracts 1 (19 May 1993) [CLOUT abstract no. 7]. For related data on this case, see Case Presentation dated April 1997 <http://www.cisg.law.pace.edu>. href=”#r79″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1103″>n79. See CISG, supra note 1, art. 25, for a definition of fundamental breach. href=”#r80″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1104″>n80. See id. art. 61 for available remedies. href=”#r81″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1105″>n81. See id. arts. 64(1)(a) and 72. href=”#r82″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1106″>n82. See id. art. 25. href=”#r83″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1107″>n83. See id. href=”#r84″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1108″>n84. In the case of the reluctant buyer (not unlikely, given his refusal to co-operate), it may be regarded as an element of anticipatory breach under Article 72. See CISG, supra note 1, art. 72. href=”#r85″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1109″>n85. An alternative interpretation of “without prejudice to any other rights he may have”, as used in Article 65, is that it applies to the seller’s use of those specifications even after they become binding. This interpretation must be incorrect. At this stage where the seller is in a position to perform a binding contract, he must do so or be in breach of contract. The exception is where, along with other factors, the buyer’s non-co-operation can be taken to indicate that the buyer “will not perform a substantial part of his obligations” or as amounting to an anticipatory fundamental breach of contract. On making a specification under Article 65, the seller will similarly be bound to perform should the buyer provide an alternative specification under paragraph 2 sentence 1. For more on the above reasoning, see Enderlein & Maskow, supra note 18, at 251. href=”#r86″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1110″>n86. Secretariat Commentary, supra note 17, art. 63 P 1. href=”#r87″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1111″>n87. See id. P 7. href=”#r88″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1112″>n88. CISG, supra note 1, art. 64(1)(b). href=”#r89″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1113″>n89. See id. href=”#r90″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1114″>n90. Secretariat Commentary, supra note 17, art. 64 P 6. href=”#r91″> alt=”Click here to return to the footnote reference.” v:shapes=”_x0000_s1115″>n91. See, e.g., Knapp, supra note 7, at 478 and Enderlein & Maskow, supra note 18, at 251 (the reference to Article 64(1) in the Secretariat Commentary is inaccurate). But see J. Honnold, supra note 14, at 440 and 448. </div> Credit:ivythesis.typepad.com

ARTICLE: MISSING SPECIFICATIONS IN INTERNATIONAL SALES: ARTICLE 65 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS

BIO: Lecturer in “private law aspects of international trade”, at The Law Faculty of the University of Troms<sl o>, Norway....