INTRODUCTION
The Vienna Convention on International Sale of Goods [The Vienna Convention] is by far not the first attempt to harmonize international commercial code – there is a history of efforts to harmonization that goes back to the beginning of the 20th century. In 1930 the International Institute for the Unification of Private Law [UNIDROIT] was created in Europe. It developed its first draft sales law in 1935 and resumed its efforts in 1951 producing a draft commercial code which was circulated until the early 1960’s.
The first successful intermediate stage was reached, when in 1964 The Hague Conference adopted the Uniform Law for the International Sale of Goods [ULIS] and the Uniform Law for the Formation of Contracts [ULF]. High expectations accompanied the signing of the Hague Convention on Sales, but only a small number of countries ratified the Hague Convention and its application was strictly reduced to these member states. “It was especially disappointing that the Hague Conventions were not ratified by some of the signatory states – such as France and the United States – which had exercised considerable influence on the formulation of their rules.”
Despite the partial failure of the Hague Conventions international efforts to harmonization of sales law were still going on. In 1966 the United Nations founded The United Nations Commission on International Trade Law [UNCITRAL] which gave top priority to establishing a uniform international trade law. The efforts of a group comprised of 14 nations lead to the first draft text of the United Nations Convention on Contracts for the International Sale of Goods [CISG] which was “deliberated at the eleventh session of UNCITRAL in 1978 in New York” and then circulated “among the governments of UN member states for their opinions and comments”. In 1980 CISG was concluded at the Vienna Convention and came into force in 1988. Today almost 60 countries have adopted CISG amongst which are most of the member states of the European Union (not the UK), USA, Canada, Australia and others.
Table of Contents
1. INTRODUCTION
2. QUESTION PART 1
3. PRINCIPLES OF CONTRACT LAW AND THEIR APPLICATION IN THE VIENNA CONVENTION
A ARTICLES INFLUENCED BY CIVIL LAW
i. The Notion of Consideration
ii. The Effectiveness of an Acceptance
iii. Specific Performance
iv. Granting of an Additional Time Period (“Nachfrist”)
v. Reduction of Price
vi. Interpretation Rules and Gap-Filling
B ARTICLES INFLUENCED BY COMMON LAW
i. The Revocability of an Offer
ii. The Concept of Delivery
iii. The Breach of Contract
4. CONCLUSION QUESTION PART 1
5. QUESTION PART 2
6. WHY IS TRANSFER OF PROPERTY NOT GOVERNED BY CISG?
7. DIFFERENT APPROACHES TO THE TRANSFER OF PROPERTY
8. CONCLUSION QUESTION PART 2
Objectives and Topics
This research essay evaluates whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excessively influenced by civil law principles over common law traditions. It further explores the rationale behind the exclusion of property transfer rules from the CISG and discusses the potential necessity for future harmonization in this area.
- Comparative analysis of civil law and common law influences within the CISG.
- Evaluation of specific contract law mechanisms like consideration, acceptance, and specific performance.
- Investigation of the jurisdictional reasons for excluding property transfer from the CISG.
- Critical assessment of the interplay between the transfer of risk and the transfer of ownership.
- Discussion on the successful attainment of uniformity in international sales law.
Excerpt from the Book
3. PRINCIPLES OF CONTRACT LAW AND THEIR APPLICATION IN THE VIENNA CONVENTION
The classic common law approach regards a contract to be perfected when the acceptance is dispatched by the offeree which lays the burden of the risk of loss or delay of the acceptance on the offeror. In civil law, the contract is not completed until it reaches the offeror – that places the risk on the offeree. At first sight it seems that CISG strictly follows that receipt-approach (see Article 18 (2) CISG). In fact, Article 16 (1) CISG “provides for the most important consequence of the common law mail-box rule, that is, an offer may not be revoked if the revocation reaches the offeree after it has dispatched an acceptance”. Furthermore Article 18 (3) CISG makes an exclusion to the receipt theory as it allows the possibility of an acceptance to become effective by an act of the offeree that shows his assent (i.e. payment of the price). “Therefore, although the Convention adopts the receipt theory for the most part, a closer look at the practical consequences of the provisions on the formation of contract reveals a well-balanced compromise between civil law and common law principles.”
Summary of Chapters
1. INTRODUCTION: Outlines the history of international efforts to harmonize commercial law, leading to the creation and adoption of the CISG.
2. QUESTION PART 1: Presents the central inquiry regarding whether the CISG is disproportionately influenced by civil law principles.
3. PRINCIPLES OF CONTRACT LAW AND THEIR APPLICATION IN THE VIENNA CONVENTION: Provides a detailed comparative analysis of how civil law and common law concepts were integrated or reconciled within the CISG.
4. CONCLUSION QUESTION PART 1: Summarizes findings, suggesting that the CISG successfully acts as a balanced compromise between different legal and economic traditions.
5. QUESTION PART 2: Introduces the debate on whether the CISG should include specific rules concerning the transfer of property.
6. WHY IS TRANSFER OF PROPERTY NOT GOVERNED BY CISG?: Explains the historical and legal reasons for the exclusion of property transfer rules from the Convention’s scope.
7. DIFFERENT APPROACHES TO THE TRANSFER OF PROPERTY: Examines varying domestic legal traditions regarding when and how ownership is transferred.
8. CONCLUSION QUESTION PART 2: Reflects on the challenges of unifying property transfer rules and advocates for future harmonization efforts.
Keywords
CISG, International Business Law, Contract Law, Civil Law, Common Law, Uniformity, Consideration, Specific Performance, Transfer of Property, Passing of Risk, UNCITRAL, Legal Harmonization, Breach of Contract, Sales Law, Legal Traditions.
Frequently Asked Questions
What is the primary focus of this research essay?
The essay examines the legal composition of the CISG, specifically analyzing how it balances disparate civil law and common law doctrines to facilitate international trade.
What are the core thematic fields addressed?
The core themes include contract formation, remedy structures, the influence of legal traditions on treaty drafting, and the jurisdictional challenges surrounding the transfer of property.
What is the main objective of the research?
The objective is to determine if the CISG is biased toward civil law and to evaluate if the current exclusion of property transfer rules is practical or requires legislative correction.
Which methodology is employed in this study?
The study utilizes a comparative legal analysis, evaluating specific CISG articles against domestic civil and common law principles, supplemented by expert scholarly commentary.
What topics are covered in the main section of the paper?
The main sections cover the evolution of the CISG, detailed breakdowns of contract principles (such as consideration and revocation of offers), and the problematic separation of risk and property transfer.
Which keywords define the scope of this work?
Key terms include CISG, legal harmonization, civil law, common law, contract law, transfer of property, and uniformity.
How does the author view the compromise between legal systems?
The author concludes that the CISG is a successful, well-balanced instrument that effectively reconciles diverse legal and economic ideologies despite its imperfections.
What issue does the author highlight regarding the transfer of risk versus property?
The author points out that because the CISG regulates the transfer of risk but excludes the transfer of property, conflicting outcomes may occur depending on which domestic law is applied to the property aspect of a transaction.
- Citation du texte
- Benjamin Mahr (Auteur), 2004, Is the Vienna Convention on international sale of goods too much influenced by civil law and should it contain a rule on the passing of property?, Munich, GRIN Verlag, https://www.grin.com/document/28078
