Harmonizing formal requirements for cross-border sales contracts

Abstract

Legal systems have different traditions about how to “prove” a contract for the sale of personal property. Most legal systems today permit the contract to be proved by any means but some States require that the agreement be concluded in or evidenced by writing. The United Nations Convention on Contracts for the International Sale of Goods adopts a freedom-of-form rule but authorizes a State to declare that the rule does not apply when the seller or buyer has its place of business in that State. This essay studies the consequences of such a declaration. The Convention text does not expressly state the consequences. The Convention’s travaux préparatoires suggest that this silence was deliberate. Doctrine and court opinions are divided on whether the writing formalities of the declaring State always apply or the formalities, if any, of the law applicable by virtue of the rules of private international law govern. In the absence of a consensus, this essay argues that the writing formalities of the declaring State apply. The argument is based on the policies implicit in the decision of non-declaring Contracting States to adhere to a Convention that allows certain Contracting States to opt out of the freedom-of-form rule. The result is consistent with recent private international law treaties that, while providing liberal rules that favor freedom of form, direct application of the fundamental policies not only of the forum but also of other jurisdictions.