What is the applicable form requirement for contractual modifications?
Why do we care what law governs form requirements for contractual modification? Claimant is claiming damages for breach of contract for late delivery. What evidence supports the Claimant’s claim that the Respondent breached the contract by delivering the polo shirts late? The sales contract called for delivery of the polo shirts by 19 February 2011 [p. 7 St. Cl. ¶ 10]. The polo shirts were not delivered until 24 February 2011 What evidence discounts the Claimant’s claim that the Respondent breached the contract by delivering the polo shirts late? Telephone call from Mr. Short and Mr. Long [p. 7 St. Cl. ¶ 13] New shipping contract and the letter of credit both call for delivery on 24 February 2011. [p. 7 St. Cl. ¶ 14].
As Claimant, what do we want as the applicable form requirement for contractual modifications? Claimant prefers that the applicable law would require a valid modification be in writing. Why? Because if all valid modifications had to be in writing, the conversation between Mr. Long and Mr. Short would not fit the requirements and the Claimant could claim late delivery.
Starting Point: Contractual Provisions This contract shall be governed by the CISG without regard to any national reservation, supplemented for matters which are not governed by the CISG, by the UNIDROIT Principles of International Commercial Contracts and these supplemented by the otherwise applicable national law. CISG without regard to national reservation UNIDROIT Principles of International Commercial Contracts National law Question to think about: whose national law? Mediterraneo? Equitoriana? Oceania?
CISG without regard to national reservation What does this mean? CISG including: Article 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. Article 29: (1) A contract may be modified or terminated by the mere agreement of the parties. Has either party made a national reservation? Can the parties contract around national reservations? NO! Article 12: Any provision of article 11, article 29…of this Convention…does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effects of this article. First point of research: how has Article 12 been interpreted?
Are we done? Nope! Article 96: A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may…make a declaration in accordance with article 12…that any provision of article 11, article 29…does not apply where any party has his place of business in that State. Article 96 tells us which law does not apply – but does it tell us what law does apply? Research Point Two: What law applies when a Contracting State makes an article 96 declaration?
Possible Applicable Law UNIDROIT Principles of International Commercial Contracts http: //www. unidroit. org/english/principles/contracts/principles 2010/b lackletter 2010 -english. pdf National Law Mediterraneo: The Supreme Court of Mediterraneo has ruled in three cases that the requirement that the contract is in writing applies to an amendment to the contract. Equatoriana: no mention Lex arbitri Danubia: UNCITRAL Model Law http: //www. uncitral. org/pdf/english/texts/arbitration/ml-arb/0786998_Ebook. pdf Research point two: how do we figure out which law applies?
Policy Arguments Why would Mediterraneo (or any Contracting State) make an Article 96 declaration? Art. 96 declarations are made to protect the Declaring State’s citizens from inadvertent contractual commitment Protect contracting parties steeped in culture of written contracts Protect judicial system that is ill equipped to handle the enforcement of unwritten contracts Legislative History of Article. 96, Article 11 and 12 • Part of allowance of Article 96 declarations was to keep negotiations going forward – many states would not ratify the CISG without the allowance of such a declaration
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