Author: Annalisa Clarizio
Publication date: 02.10.2023
International sale of movable property takes place when the contracting parties are established in different states. If these States have acceded to the 1980 Vienna Convention, the latter shall prevail over the rules of domestic private international law. In fact, in this case, the Convention lays down uniform substantive rules conferring them the character of specialities.
1980 Vienna Convention
The Vienna Convention contains rules on the formation of contracts of international sale, rights and obligations of the seller and buyer. What's more, this contains the regulation of liability for default and the right to compensation for damages. For this reason, it is useful to know them to predict the risks arising from the deal and to evaluate whether to insert contractual clauses. As a result, this can represent a very high risk for the seller if he does not consider it at the time of negotiation and drafting the contract.
Scope of the Convention on Contracts for the International Sale of Goods (CISG)
CISG applies to the international sale of goods if the parties to the contract have their place of business in Contracting States. However, they may decide to exclude the application of the Convention by virtue of the principle of contractual autonomy. The scope of the Convention excludes sales for personal, family or domestic use, and the sale of ships, aircraft and electricity.
Among the provisions of the Convention is the requirement for autonomous interpretation in the light of the uniform nature of the Treaty. The interpreter can benefit from a substantial international jurisprudence reported on electronic databases.
One of these is the Case Law on UNCITRAL Texts (UNILEX). The CISG can be integrated "with the general principles on which it is based if the contract, the provisions of the CISG and the uses are not sufficient. Finally, CISG adopts the principle of freedom of form about the contract that can be concluded orally, in writing or electronically.
The formation of the contract
A contractual proposal indicates the properties to be offered and fixes their quantity and price. It may also give indications enabling them to be determined. If the price hasn’t been determined, Article 55 of CISG allows it to apply to the price generally charged for assets of the same type.
In particular the reference is to assets sold in similar circumstances in the commercial sector concerned. Instead if it is made a proposal addressed to indeterminate persons is considered as an invitation to offer. When acceptance in accordance with the proposal reaches the proposer the contract is concluded.
Silence and inertia of the contracting parties do not count as acceptance. Acceptance may contain additional or different clauses that do not alter the terms of the proposal. So, if the tenderer doesn’t object, the contract is concluded with these additional or different clauses. These clauses are considered as counter-proposals.