CONVENTION ON THE LAW APPLICABLE TO CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS
(Concluded December 22, 1986)
The States
Parties to the present Convention,
Desiring to
unify the choice of law rules relating to contracts for the international sale
of goods,
Bearing in mind
the United Nations Convention on
contracts for the international sale of goods, concluded at Vienna on 11
April 1980,
Have agreed upon
the following provisions -
chapter i -
scope of the convention
Article 1
This Convention
determines the law applicable to contracts of sale of goods -
a) between
parties having their places of business in different States;
b) in all other cases involving a
choice between the laws of different States, unless such a choice arises solely
from a stipulation by the parties as to the applicable law, even if accompanied
by a choice of court or arbitration.
Article 2
The Convention
does not apply to -
a) sales
by way of execution or otherwise by authority of law;
b) sales of stocks, shares,
investment securities, negotiable instruments or money; it does, however, apply
to the sale of goods based on documents;
c) sales of goods bought for
personal, family or household use; it does, however, apply if the seller at the
time of the conclusion of the contract neither knew nor ought to have known
that the goods were bought for any such use.
Article 3
For the purposes
of the Convention, "goods" includes -
a) ships,
vessels, boats, hovercraft and aircraft;
b) electricity.
Article 4
(1)
Contracts for the supply of goods to be manufactured or produced are to be
considered contracts of sale unless the party who orders the goods undertakes
to supply a substantial part of the materials necessary for such manufacture or
production.
(2) Contracts in which the preponderant part of the obligations of the
party who furnishes goods consists of the supply of labour or other services
are not to be considered contracts of sale.
Article 5
The Convention
does not determine the law applicable to -
a) the
capacity of the parties or the consequences of nullity or invalidity of the
contract resulting from the incapacity of a party;
b) the question whether an agent
is able to bind a principal, or an organ to bind a company or body corporate or
unincorporate;
c) the transfer of ownership;
nevertheless, the issues specifically mentioned in Article 12 are governed by
the law applicable to the contract under the Convention;
d) the effect of the sale in
respect of any person other than the parties;
e) agreements on arbitration or on
choice of court, even if such an agreement is embodied in the contract of sale.
Article 6
The law
determined under the Convention applies whether or not it is the law of a
Contracting State.
chapter ii -
applicable law
Section 1 - Determination of the
applicable law
Article 7
(1) A
contract of sale is governed by the law chosen by the parties. The parties'
agreement on this choice must be express or be clearly demonstrated by the
terms of the contract and the conduct of the parties, viewed in their entirety.
Such a choice may be limited to a part of the contract.
(2) The parties may at any time agree to subject the contract in whole or
in part to a law other than that which previously governed it, whether or not
the law previously governing the contract was chosen by the parties. Any change
by the parties of the applicable law made after the conclusion of the contract
does not prejudice its formal validity or the rights of third parties.
Article 8
(1) To the
extent that the law applicable to a contract of sale has not been chosen by the
parties in accordance with Article 7, the contract is governed by the law of
the State where the seller has his place of business at the time of conclusion
of the contract.
(2) However, the contract is governed by the law of the State where the
buyer has his place of business at the time of conclusion of the contract, if -
a) negotiations were conducted, and
the contract concluded by and in the presence of the parties, in that State; or
b) the contract provides expressly
that the seller must perform his obligation to deliver the goods in that State;
or
c) the contract was concluded on
terms determined mainly by the buyer and in response to an invitation directed
by the buyer to persons invited to bid (a call for tenders).
(3) By way
of exception, where, in the light of the circumstances as a whole, for instance
any business relations between the parties, the contract is manifestly more
closely connected with a law which is not the law which would otherwise be
applicable to the contract under paragraphs 1 or 2 of this Article, the
contract is governed by that other law.
(4) Paragraph 3 does not apply if, at the time of the conclusion of the
contract, the seller and the buyer have their places of business in States
having made the reservation under Article 21, paragraph 1, sub-paragraph b).
(5) Paragraph 3 does not apply in respect of issues regulated in the United Nations Convention on contracts for the
international sale of goods (Vienna, 11 April 1980) where, at the
time of the conclusion of the contract, the seller and the buyer have their
places of business in different States both of which are Parties to that
Convention.
Article 9
A sale by
auction or on a commodity or other exchange is governed by the law chosen by
the parties in accordance with Article 7 to the extent to which the law of the
State where the auction takes place or the exchange is located does not
prohibit such choice. Failing a choice by the parties, or to the extent that
such choice is prohibited, the law of the State where the auction takes place
or the exchange is located shall apply.
Article 10
(1) Issues
concerning the existence and material validity of the consent of the parties as
to the choice of the applicable law are determined, where the choice satisfies
the requirements of Article 7, by the law chosen. If under that law the choice
is invalid, the law governing the contract is determined under Article 8.
(2) The existence and material validity of a contract of sale, or of any
term thereof, are determined by the law which under the Convention would govern
the contract or term if it were valid.
(3) Nevertheless, to establish that he did not consent to the choice of
law, to the contract itself, or to any term thereof, a party may rely on the
law of the State where he has his place of business, if in the circumstances it
is not reasonable to determine that issue under the law specified in the
preceding paragraphs.
Article 11
(1) A
contract of sale concluded between persons who are in the same State is
formally valid if it satisfies the requirements either of the law which governs
it under the Convention or of the law of the State where it is concluded.
(2) A contract of sale concluded between persons who are in different
States is formally valid if it satisfies the requirements either of the law
which governs it under the Convention or of the law of one of those States.
(3) Where the contract is concluded by an agent, the State in which the
agent acts is the relevant State for the purposes of the preceding paragraphs.
(4) An act intended to have legal effect relating to an existing or
contemplated contract of sale is formally valid if it satisfies the
requirements either of the law which under the Convention governs or would
govern the contract, or of the law of the State where the act was done.
(5) The Convention does not apply to the formal validity of a contract of
sale where one of the parties to the contract has, at the time of its
conclusion, his place of business in a State which has made the reservation
provided for in Article 21, paragraph 1, sub-paragraph c).
Section 2 - Scope of the applicable law
Article 12
The law
applicable to a contract of sale by virtue of Articles 7, 8 or 9 governs in
particular -
a) interpretation of the contract;
b) the rights and obligations of
the parties and performance of the contract;
c) the time at which the buyer
becomes entitled to the products, fruits and income deriving from the goods;
d) the time from which the buyer
bears the risk with respect to the goods;
e) the validity and effect as
between the parties of clauses reserving title to the goods;
f) the consequences of
non-performance of the contract, including the categories of loss for which
compensation may be recovered, but without prejudice to the procedural law of
the forum;
g) the various ways of
extinguishing obligations, as well as prescription and limitation of actions;
h) the consequences of nullity or
invalidity of the contract.
Article 13
In the absence
of an express clause to the contrary, the law of the State where inspection of
the goods takes place applies to the modalities and procedural requirements for
such inspection.
chapter iii -
general provisions
Article 14
(1) If a
party has more than one place of business, the relevant place of business is
that which has the closest relationship to the contract and its performance,
having regard to the circumstances known to or contemplated by the parties at
any time before or at the conclusion of the contract.
(2) If a party does not have a place of business, reference is to be made
to his habitual residence.
Article 15
In the
Convention "law" means the law in force in a State other than its
choice of law rules.
Article 16
In the
interpretation of the Convention, regard is to be had to its international
character and to the need to promote uniformity in its application.
Article 17
The Convention
does not prevent the application of those provisions of the law of the forum
that must be applied irrespective of the law that otherwise governs the
contract.
Article 18
The application
of a law determined by the Convention may be refused only where such
application would be manifestly incompatible with public policy (ordre public).
Article 19
For the purpose
of identifying the law applicable under the Convention, where a State comprises
several territorial units each of which has its own system of law or its own
rules of law in respect of contracts for the sale of goods, any reference to
the law of that State is to be construed as referring to the law in force in
the territorial unit in question.
Article 20
A State within
which different territorial units have their own systems of law or their own
rules of law in respect of contracts of sale is not bound to apply the
Convention to conflicts between the laws in force in such units.
Article 21
(1) Any
State may, at the time of signature, ratification, acceptance, approval or
accession make any of the following reservations -
a) that it will not apply the
Convention in the cases covered by sub-paragraph b) of
Article 1;
b) that it will not apply
paragraph 3 of Article 8, except where neither party to the contract has his
place of business in a State which has made a reservation provided for under
this sub-paragraph;
c) that, for cases where its
legislation requires contracts of sale to be concluded in or evidenced by
writing, it will not apply the Convention to the formal validity of the
contract, where any party has his place of business in its territory at the time
of conclusion of the contract;
d) that it will not apply
sub-paragraph g) of Article
12 in so far as that sub-paragraph relates to prescription and limitation of
actions.
(2) No
other reservation shall be permitted.
(3) Any Contracting State may at any time withdraw a reservation which it
has made; the reservation shall cease to have effect on the first day of the
month following the expiration of three months after notification of the
withdrawal.
Article 22
(1) This
Convention does not prevail over any convention or other international
agreement which has been or may be entered into and which contains provisions
determining the law applicable to contracts of sale, provided that such
instrument applies only if the seller and buyer have their places of business
in States Parties to that instrument.
(2) This Convention does not prevail over any international convention to
which a Contracting State is, or becomes, a Party, regulating the choice of law
in regard to any particular category of contracts of sale within the scope of
this Convention.
Article 23
This Convention
does not prejudice the application -
a) of
the United Nations Convention on
contracts for the international sale of goods (Vienna, 11 April 1980);
b) of the Convention on the limitation period in the
international sale of goods (New York, 14 June 1974), or the Protocol amending that Convention
(Vienna, 11 April 1980).
Article 24
The Convention
applies in a Contracting State to contracts of sale concluded after its entry
into force for that State.
chapter iv -
final clauses
Article 25
(1) The
Convention is open for signature by all States.
(2) The Convention is subject to ratification, acceptance or approval by
the signatory States.
(3) The Convention is open for accession by all States which are not
signatory States as from the date it is open for signature.
(4) Instruments of ratification, acceptance, approval and accession shall
be deposited with the Ministry of Foreign Affairs of the Kingdom of the
Netherlands, depositary of the Convention.
Article 26
(1) If a
State has two or more territorial units in which different systems of law are
applicable in relation to matters dealt with in this Convention, it may at the
time of signature, ratification, acceptance, approval or accession declare that
this Convention shall extend to all its territorial units or only to one or
more of them and may modify this declaration by submitting another declaration
at any time.
(2) Any such declaration shall be notified to the depositary and shall
state expressly the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention is
to extend to all territorial units of that State.
Article 27
(1) The
Convention shall enter into force on the first day of the month following the
expiration of three months after the deposit of the fifth instrument of
ratification, acceptance, approval or accession referred to in Article 25.
(2) Thereafter the Convention shall enter into force -
a) for each State ratifying,
accepting, approving or acceding to it subsequently, on the first day of the
month following the expiration of three months after the deposit of its
instrument of ratification, acceptance, approval or accession;
b) for a territorial unit to which
the Convention has been extended in conformity with Article 26 on the first day
of the month following the expiration of three months after the notification
referred to in that Article.
Article 28
For each State
Party to the Convention on the law
applicable to international sales of goods, done at The Hague on 15 June
1955, which has consented to be bound by this Convention and for which this
Convention is in force, this Convention shall replace the said Convention of
1955.
Article 29
Any State which
becomes a Party to this Convention after the entry into force of an instrument
revising it shall be considered to be a Party to the Convention as revised.
Article 30
(1) A
State Party to this Convention may denounce it by a notification in writing
addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following
the expiration of three months after the notification is received by the
depositary. Where a longer period for the denunciation to take effect is
specified in the notification, the denunciation takes effect upon the
expiration of such longer period after the notification is received by the
depositary.
Article 31
The depositary
shall notify the States Members of the Hague Conference on Private
International Law and the States which have signed, ratified, accepted,
approved or acceded in accordance with Article 25, of the following -
a) the
signatures and ratifications, acceptances, approvals and accessions referred to
in Article 25;
b) the date on which the
Convention enters into force in accordance with Article 27;
c) the declarations referred to in
Article 26;
d) the reservations and the
withdrawals of reservations referred to in Article 21;
e) the denunciations referred to
in Article 30.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 22nd day of December, 1986, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Kingdom of the Netherlands, and of
which a certified copy shall be sent, through diplomatic channels, to each of
the States Members of the Hague Conference on Private International Law as of
the date of its Extraordinary Session of October 1985, and to each State which
participated in that Session.
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