We can infer from the entirety of the Article I of the Vienna Convention (CISG) it “compromise” character. This means that the convention provides and gives leeway to the application of other legal system in case the latter is the one more proper to apply. The Vienna Convention (CISG) tries not to be mandatory and universal in its approach towards international transaction but comes into force only upon the proper time and circumstances.
Contrary to other previous conventions and international agreements, “the most important of the changes is the rejection of the “universalist” approach of the uniform laws and its replacement with a compromise text which requires some connection between sale transaction and a contracting state before the UN-CISG is applicable ”. It does not insist to be applied in all situations involving international contracts but preserves the integrity and enforceability of other legal systems as the private international law of states.
It tries not to derogate other legal systems but make its provisions in harmony with others. The intention of the preliminary provisions of the UN-CISG basically is to harmonize its provision with the mandatory rules that have been existing. The very purpose of the provision would be defeated as it will add to the prevailing uncertainty in the rights and obligations of the parties to an international transaction. It is for this reason that the UN-CISG has gained wider and larger acceptability among the states.
“At least one reason for the quick acceptance of the provisions was the desire to avoid conflict between the convention and “mandatory rules” of national law, a concern which also led to the omission of several provisions of the uniform law which refer specifically to mandatory rules ” Contracts must pass first the “internationality test” before it can fall within the purview of the UN-CISG. This test simply means that the contracting parties in the international sales of goods must be those, which have places of business in different states.
It is not necessary that the person binding such business entity as an owner or manager be a citizen of that country, but it is sufficient that the place of business of a firm or entity is undertaken substantially in that country. “The term “place of business” implies some permanency and this implication are reinforced by the use in the French text of the term “establissement” which has even an even stronger connotation of a branch office ”. Interpreting the term to require some permanency should also make it easier for the parties to determine whether or not the convention applies and would lead to more uniform conclusions ”.
“Article 11 establishes one of the basic rules of the Convention: the theory of consensualism, i. e. that a contract is perfected upon the meeting of the night, subject to any specific formal requirements. ” “This principle is widely accepted in the international commercial trade. ” “Although the UN-CISG does not define contracts of sale, it does provide that the seller must “deliver the goods, hand over any documents relating to them and transfer the property in the goods,” while the buyer must “pay the price for the goods and take delivery of them.
” However, certain provision has something to say about the nature and character of a contract of sale within the context of the UN-CISG. Article 30 of the UN-CISG provides that “The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention . ” On the other hand, Article 53 provides that “The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention ”.
This leads us to a conclusion on the reciprocal obligations of the buyer and the seller is well contemplated by the UN-CISG as the main aspects and requisites in a contract of sale. These reciprocal obligations are widely common in the concept of a contract of sale under the domestic laws. Hence it is not surprising that an international contract of sale barring certain aspects can be likely considered as an ordinary contract of sale as that governed by domestic laws.