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Art. 6 CISG–PECL, by Ulrich G. Schroeter [Germany]

Published online by Cambridge University Press:  20 October 2009

Ulrich G. Schroeter
Affiliation:
Assistant Professor, Institute for Foreign and International Private Law, University of Freiburg (Germany)
John Felemegas
Affiliation:
University of Technology, Sydney
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Summary

INTRODUCTION

CISG Article 6 lays down the general rule that the Convention applies to international contracts of sale of goods, subject to a contrary agreement by the parties. Its counterparts in PECL Articles 1:102 and 1:103 likewise address the principle of freedom of contract and its limitations, but differ from CISG Article 6 in several respects. These differences primarily follow from the different legal nature of the two sets of rules – whereas the CISG in its Contracting States forms part of the substantive law that the courts have to apply (lex fori), the applicability of the PECL in general requires an agreement of the parties to submit their contract to the Principles (PECL 1:101). However, these differences also reflect the different approaches adopted by the drafters of the CISG and the PECL to the limitations to the freedom of contract, in particular those limitations arising from so-called mandatory rules of law. As a consequence, the use of PECL Articles 1:102 and 1:103 as an aid to interpret CISG Article 6 is subject to several important caveats discussed below.

FREEDOM OF CONTRACT UNDER THE CISG AND THE PECL

The principle of freedom of contract, one of the basic principles underlying the international law of contracts in general, has been recognized by both the drafters of the CISG and of the PECL. The wording of CISG Article 6 and PECL Article 1:102(2) is in fact quite similar, and the prominent position of both provisions among the first articles in the Convention and the PECL illustrates the important role of the parties' autonomy.

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  • Art. 6 CISG–PECL, by Ulrich G. Schroeter [Germany]
    • By Ulrich G. Schroeter, Assistant Professor, Institute for Foreign and International Private Law, University of Freiburg (Germany)
  • Edited by John Felemegas, University of Technology, Sydney
  • Book: An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
  • Online publication: 20 October 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511511417.038
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  • Art. 6 CISG–PECL, by Ulrich G. Schroeter [Germany]
    • By Ulrich G. Schroeter, Assistant Professor, Institute for Foreign and International Private Law, University of Freiburg (Germany)
  • Edited by John Felemegas, University of Technology, Sydney
  • Book: An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
  • Online publication: 20 October 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511511417.038
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Art. 6 CISG–PECL, by Ulrich G. Schroeter [Germany]
    • By Ulrich G. Schroeter, Assistant Professor, Institute for Foreign and International Private Law, University of Freiburg (Germany)
  • Edited by John Felemegas, University of Technology, Sydney
  • Book: An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
  • Online publication: 20 October 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511511417.038
Available formats
×