CISG하에서 계약의 형식요건에 관한 규정해석과 판결례에 관한 고찰

Subject to article 12, article 11 provides that a contract of sale need not be concluded in writing and is not subject to any other specific requirement as to form. The provision thus establishes the principle of freedom from form requirements or in other words, as one court has stated, under article 11 CISG, a contract of sale can be concluded informally. According to case law this means that a contract can be concluded orally and through the conduct of the parties. Article 11 has also been invoked in holding that a party’s signature was not required for a valid contract. Furthermore writing includes telegram and telex under CISG. Article 29 addresses modification of an already concluded contract by agreement of the parties. According to article 29 (1), the mere consent of the parties is sufficient to effect such a modification or termination. If, however, the parties have agreed in writing that a modification or termination of their contract must be done in writing, paragraph 2 provides that the contract cannot be otherwise modified or terminated although a party’s conduct may preclude it from asserting such a provision to the extent that the other party has relied on that conduct. Related to the declarations that CISG rules which dispense with requirements of written form do not apply when a party is located in a declaring contracting state as article 96.