SALE OF GOODS (VIENNA CONVENTION) ACT 1987
NORTHERN TERRITORY OF AUSTRALIA
SALE OF GOODS (VIENNA CONVENTION) ACT 1987
As in force at 17 May 2007
Table of provisions
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 1
3 Definition.......................................................................................... 1
4 Act binds Crown .............................................................................. 2
5 Convention to have force of law ...................................................... 2
6 Convention to prevail in event of inconsistency ............................... 2
7 Evidence of certain matters ............................................................. 2
Schedule United Nations Convention on Contracts
for the International Sale of Goods
ENDNOTES
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NORTHERN TERRITORY OF AUSTRALIA
____________________
As in force at 17 May 2007
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SALE OF GOODS (VIENNA CONVENTION) ACT 1987
An Act to give effect within the Territory to the United Nations
Convention on Contracts for the International Sale of Goods, and for
other purposes.
WHEREAS:
1. The United Nations Convention on Contracts for the International
Sale of Goods was adopted at Vienna, Austria, on 10 April 1980
and was opened for signature and also for accession on
11 April 1980.
2. It has been agreed between the Commonwealth, the States of the
Commonwealth and the Northern Territory that the provisions of the
Convention should, after it enters into force in respect of Australia,
have the force of law in the States and the Territories by virtue of
legislation of the respective States and Territories:
1 Short title
This Act may be cited as the Sale of Goods (Vienna Convention)
Act 1987.
2 Commencement
(1) Sections 1, 2 and 3 shall come into operation on the date on which
the Administrator's assent to this Act is given.
(2) Except as provided by subsection (1), this Act shall come into
operation on a date, not being earlier than the date on which the
Convention enters into force in respect of Australia, to be fixed by
the Administrator by notice in the Gazette.
3 Definition
In this Act, Convention means the United Nations Convention on
Contracts for the International Sale of Goods adopted at Vienna,
Austria, on 10 April 1980 and opened for signature and also for
accession on 11 April 1980, a copy of which is set out in the
Schedule.
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Sale of Goods (Vienna Convention) Act 1987 2
4 Act binds Crown
This Act binds the Crown not only in right of the Territory but also,
so far as the legislative power of the Legislative Assembly permits,
the Crown in all its capacities.
5 Convention to have force of law
The provisions of the Convention have the force of law in the
Territory.
6 Convention to prevail in event of inconsistency
The provisions of the Convention prevail over any other law in force
in the Territory to the extent of any inconsistency.
7 Evidence of certain matters
A document purporting to be a notice issued by the Minister and
published in the Gazette, or a document purporting to be a notice
issued by a Minister of State for the Commonwealth and published
in the Commonwealth of Australia Gazette, or a document certified
by a lawyer to be a true copy of such a notice, declaring that:
(a) the Convention has entered or will enter into force, with effect
from a specified date, in respect of a specified country;
(b) a specified country has made a declaration under Part IV of
the Convention and specifying details of that declaration,
including the date the declaration took or will take effect; or
(c) a specified country has denounced the Convention or Part II
or III of the Convention and specifying the date the
denunciation took or will take effect,
is evidence of the matters contained in the document.
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Schedule United Nations Convention on Contracts for the International Sale of Goods
Sale of Goods (Vienna Convention) Act 1987 3
Schedule United Nations Convention on Contracts for
the International Sale of Goods
section 3
THE STATES PARTIES TO THIS CONVENTION,
BEARING IN MIND the broad objectives in the resolutions adopted by
the sixth special session of the General Assembly of the United Nations on
the establishment of a New International Economic Order,
CONSIDERING that the development of international trade on the
basis of equality and mutual benefit is an important element in promoting
friendly relations among States,
BEING OF THE OPINION that the adoption of uniform rules which
govern contracts for the international sale of goods and take into account the
different social, economic and legal systems would contribute to the removal
of legal barriers in international trade and promote the development of
international trade,
HAVE AGREED as follows:
PART I – SPHERE OF APPLICATION AND GENERAL PROVISION
Chapter I – Sphere of Application
Article 1
(1) This Convention applies to contracts of sale of goods between
parties whose places of business are in different States –
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the
application of the law of a Contracting State.
(2) The fact that the parties have their places of business in different
States is to be disregarded whenever this fact does not appear
either from the contract or from any dealings between, or from
information disclosed by, the parties at any time before or at the
conclusion of the contract.
(3) Neither the nationality of the parties nor the civil or commercial
character of the parties or of the contract is to be taken into
consideration in determining the application of this Convention.
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Article 2
This Convention does not apply to sales –
(a) of goods bought for personal, family or household use, unless
the seller, at any time before or at the conclusion of the
contract, neither knew nor ought to have known that the goods
were bought for any such use;
(b) by auction;
(c) on execution or otherwise by authority of law;
(d) of stocks, shares, investment securities, negotiable
instruments or money;
(e) of ships, vessels, hovercraft or aircraft;
(f) of electricity.
Article 3
(1) Contracts for the supply of goods to be manufactured or produced
are to be considered sales unless the party who orders the goods
undertakes to supply a substantial part of the materials necessary
for such manufacture or production.
(2) This Convention does not apply to contracts in which the
preponderant part of the obligations of the party who furnishes the
goods consists in the supply of labour or other services.
Article 4
This Convention governs only the formation of the contract of sale
and the rights and obligations of the seller and the buyer arising
from such a contract. In particular, except as otherwise expressly
provided in this Convention, it is not concerned with –
(a) the validity of the contract or of any of its provisions or of any
usage;
(b) the effect which the contract may have on the property in the
goods sold.
Article 5
This Convention does not apply to the liability of the seller for death
or personal injury caused by the goods to any person.
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Article 6
The parties may exclude the application of this Convention or,
subject to article 12, derogate from or vary the effect of any of its
provisions.
Chapter II – General Provisions
Article 7
(1) In the interpretation of this Convention, regard is to be had to its
international character and to the need to promote uniformity in its
application and the observance of good faith in international trade.
(2) Questions concerning matters governed by this Convention which
are not expressly settled in it are to be settled in conformity with the
general principles on which it is based or, in the absence of such
principles, in conformity with the law applicable by virtue of the rules
of private international law.
Article 8
(1) For the purposes of this Convention, statements made by and other
conduct of a party are to be interpreted according to his intent
where the other party knew or could not have been unaware what
that intent was.
(2) If the preceding paragraph is not applicable, statements made by
and other conduct of a party are to be interpreted according to the
understanding that a reasonable person of the same kind as the
other party would have had in the same circumstances.
(3) In determining the intent of a party or the understanding a
reasonable person would have had, due consideration is to be
given to all relevant circumstances of the case including the
negotiations, any practices which the parties have established
between themselves, usage and any subsequent conduct of the
parties.
Article 9
(1) The parties are bound by any usage to which they have agreed and
by any practices which they have established between themselves.
(2) The parties are considered, unless otherwise agreed, to have
impliedly made applicable to their contract or its formation a usage
of which the parties knew or ought to have known and which in
international trade is widely known to, and regularly observed by,
parties to contracts of the type involved in the particular trade
concerned.
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Article 10
For the purposes of this Convention –
(a) if a party has more than one place of business, the 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;
(b) if a party does not have a place of business, reference is to be
made to his habitual residence.
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 12
Any provision of article 11, article 29 or Part II of this Convention
that allows a contract of sale or its modification or termination by
agreement or any offer, acceptance or other indication of intention
to be made in any form other than in writing 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 effect of this article.
Article 13
For the purposes of this Convention, "writing" includes telegram
and telex.
PART II – FORMATION OF CONTRACT
Article 14
(1) A proposal for concluding a contract addressed to one or more
specific persons constitutes an offer if it is sufficiently definite and
indicates the intention of the offeror to be bound in case of
acceptance. A proposal is sufficiently definite if it indicates the
goods and expressly or implicitly fixes or makes provision for
determining the quantity and the price.
(2) A proposal other than one addressed to one or more specific
persons is to be considered merely as an invitation to make offers,
unless the contrary is clearly indicated by the person making the
proposal.
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Article 15
(1) An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal
reaches the offeree before or at the same time as the offer.
Article 16
(1) Until a contract is concluded an offer may be revoked if the
revocation reaches the offeree before he has dispatched an
acceptance.
(2) However, an offer cannot be revoked –
(a) if it indicates, whether by stating a fixed time for acceptance or
otherwise, that it is irrevocable; or
(b) if it was reasonable for the offeree to rely on the offer as being
irrevocable and the offeree has acted in reliance on the offer.
Article 17
An offer, even if it is irrevocable, is terminated when a rejection
reaches the offeror.
Article 18
(1) A statement made by or other conduct of the offeree indicating
assent to an offer is an acceptance. Silence or inactivity does not
in itself amount to acceptance.
(2) An acceptance of an offer becomes effective at the moment the
indication of assent reaches the offeror. An acceptance is not
effective if the indication of assent does not reach the offeror within
the time he has fixed or, if no time is fixed, within a reasonable time,
due account being taken of the circumstances of the transaction,
including the rapidity of the means of communication employed by
the offeror. An oral offer must be accepted immediately unless the
circumstances indicate otherwise.
(3) However, if, by virtue of the offer or as a result of practices which
the parties have established between themselves or of usage, the
offeree may indicate assent by performing an act, such as one
relating to the dispatch of the goods or payment of the price,
without notice to the offeror, the acceptance is effective at the
moment the act is performed, provided that the act is performed
within the period of time laid down in the preceding paragraph.
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Article 19
(1) A reply to an offer which purports to be an acceptance but contains
additions, limitations or other modifications is a rejection of the offer
and constitutes a counter-offer.
(2) However, a reply to an offer which purports to be an acceptance but
contains additional or different terms which do not materially alter
the terms of the offer constitutes an acceptance, unless the offeror,
without undue delay, objects orally to the discrepancy or dispatches
a notice to that effect. If he does not so object, the terms of the
contract are the terms of the offer with the modifications contained
in the acceptance.
(3) Additional or different terms relating, among other things, to the
price, payment, quality and quantity of the goods, place and time of
delivery, extent of one party's liability to the other or the settlement
of disputes are considered to alter the terms of the offer materially.
Article 20
(1) A period of time for acceptance fixed by the offeror in a telegram or
a letter begins to run from the moment the telegram is handed in for
dispatch or from the date shown on the letter or, if no such date is
shown, from the date shown on the envelope. A period of time for
acceptance fixed by the offeror or by telephone, telex or other
means of instantaneous communication, begins to run from the
moment that the offer reaches the offeree.
(2) Official holidays or non-business days occurring during the period
for acceptance are included in calculating the period. However, if a
notice of acceptance cannot be delivered at the address of the
offeror on the last day of the period because that day falls on an
official holiday or a non-business day at the place of business of the
offeror, the period is extended until the first business day which
follows.
Article 21
(1) A late acceptance is nevertheless effective as an acceptance if
without delay the offeror orally so informs the offeree or dispatches
a notice to that effect.
(2) If a letter or other writing containing a late acceptance shows that it
has been sent in such circumstances that if its transmission had
been normal it would have reached the offeror in due time, the late
acceptance is effective as an acceptance unless, without delay, the
offeror orally informs the offeree that he considers his offer as
having lapsed or dispatches a notice to that effect.
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Article 22
An acceptance may be withdrawn if the withdrawal reaches the
offeror before or at the same time as the acceptance would have
become effective.
Article 23
A contract is concluded at the moment when an acceptance of an
offer becomes effective in accordance with the provisions of this
Convention.
Article 24
For the purposes of this Part of the Convention, an offer,
declaration of acceptance or any other indication of intention
"reaches" the addressee when it is made orally to him or delivered
by any other means to him personally, to his place of business or
mailing address or, if he does not have a place of business or
mailing address, to his habitual residence.
PART III – SALE OF GOODS
Chapter I – General Provisions
Article 25
A breach of contract committed by one of the parties is fundamental
if it results in such detriment to the other party as substantially to
deprive him of what he is entitled to expect under the contract,
unless the party in breach did not foresee and a reasonable person
of the same kind in the same circumstances would not have
foreseen such a result.
Article 26
A declaration of avoidance of the contract is effective only if made
by notice to the other party.
Article 27
Unless otherwise expressly provided in this Part of the Convention,
if any notice, request or other communication is given or made by a
party in accordance with this Part and by means appropriate in the
circumstances, a delay or error in the transmission of the
communication or its failure to arrive does not deprive that party of
the right to rely on the communication.
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Article 28
If, in accordance with the provisions of this Convention, one party is
entitled to require performance of any obligation by the other party,
a court is not bound to enter a judgment for specific performance
unless the court would do so under its own law in respect of similar
contracts of sale not governed by this Convention.
Article 29
(1) A contract may be modified or terminated by the mere agreement of
the parties.
(2) A contract in writing which contains a provision requiring any
modification or termination by agreement to be in writing may not
be otherwise modified or terminated by agreement. However, a
party may be precluded by his conduct from asserting such a
provision to the extent that the other party has relied on that
conduct.
Chapter II – Obligations of the Seller
Article 30
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.
Section I – Delivery of the goods and handing over of documents
Article 31
If the seller is not bound to deliver the goods at any other particular
place, his obligation to deliver consists –
(a) if the contract of sale involves carriage of the goods – in
handing the goods over to the first carrier for transmission to
the buyer;
(b) if, in cases not within the preceding subparagraph, the
contract relates to specific goods, or unidentified goods to be
drawn from a specific stock or to be manufactured or
produced, and at the time of the conclusion of the contract the
parties knew that the goods were at, or were to be
manufactured or produced at, a particular place – in placing
the goods at the buyer's disposal at that place;
(c) in other cases – in placing the goods at the buyer's disposal at
the place where the seller had his place of business at the
time of the conclusion of the contract.
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Article 32
(1) If the seller, in accordance with the contract or this Convention,
hands the goods over to a carrier and if the goods are not clearly
identified to the contract by markings on the goods, by shipping
documents or otherwise, the seller must give the buyer notice of the
consignment specifying the goods.
(2) If the seller is bound to arrange for carriage of the goods, he must
make such contracts as are necessary for carriage to the place
fixed by means of transportation appropriate in the circumstances
and according to the usual terms for such transportation.
(3) If the seller is not bound to effect insurance in respect of the
carriage of the goods, he must, at the buyer's request, provide him
with all available information necessary to enable him to effect such
insurance.
Article 33
The seller must deliver the goods –
(a) if a date is fixed by or determinable from the contract, on that
date;
(b) if a period of time is fixed by or determinable from the contract,
at any time within that period unless circumstances indicate
that the buyer is to choose a date; or
(c) in any other case, within a reasonable time after the
conclusion of the contract.
Article 34
If the seller is bound to hand over documents relating to the goods,
he must hand them over at the time and place and in the form
required by the contract. If the seller has handed over documents
before that time, he may,up to that time, cure any lack of conformity
in the documents, if the exercise of this right does not cause the
buyer unreasonable inconvenience or unreasonable expense.
However, the buyer retains any right to claim damages as provided
for in this Convention.
Section II – Conformity of the goods and third party claims
Article 35
(1) The seller must deliver goods which are of the quantity, quality and
description required by the contract and which are contained or
packaged in the manner required by the contract.
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(2) Except where the parties have agreed otherwise, the goods do not
conform with the contract unless they –
(a) are fit for the purposes for which goods of the same
description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made
known to the seller at the time of the conclusion of the
contract, except where the circumstances show that the buyer
did not rely, or that it was unreasonable for him to rely, on the
seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to
the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such
goods or, where there is no such manner, in a manner
adequate to preserve and protect the goods.
(3) The seller is not liable under subparagraphs (a) to (d) of the
preceding paragraph for any lack of conformity of the goods if at the
time of the conclusion of the contract the buyer knew or could not
have been unaware of such lack of conformity.
Article 36
(1) The seller is liable in accordance with the contract and this
Convention for any lack of conformity which exists at the time when
the risk passes to the buyer, even though the lack of conformity
becomes apparent only after that time.
(2) The seller is also liable for any lack of conformity which occurs after
the time indicated in the preceding paragraph and which is due to a
breach of any of his obligations, including a breach of any
guarantee that for a period of time the goods will remain fit for their
ordinary purpose or for some particular purpose or will retain
specified qualities or characteristics.
Article 37
If the seller has delivered goods before the date for delivery, he
may, up to that date, deliver any missing part or make up any
deficiency in the quantity of the goods delivered, or deliver goods in
replacement of any non-conforming goods delivered or remedy any
lack of conformity in the goods delivered, provided that the exercise
of this right does not cause the buyer unreasonable inconvenience
or unreasonable expense. However, the buyer retains any right to
claim damages as provided for in this Convention.
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Article 38
(1) The buyer must examine the goods, or cause them to be examined,
within as short a period as is practicable in the circumstances.
(2) If the contract involves carriage of the goods, examination may be
deferred until after the goods have arrived at their destination.
(3) If the goods are redirected in transit or redispatched by the buyer
without a reasonable opportunity for examination by him and at the
time of the conclusion of the contract the seller knew or ought to
have known of the possibility of such redirection or redispatch,
examination may be deferred until after the goods have arrived at
the new destination.
Article 39
(1) The buyer loses the right to rely on a lack of conformity of the
goods if he does not give notice to the seller specifying the nature
of the lack of conformity within a reasonable time after he has
discovered it or ought to have discovered it.
(2) In any event, the buyer loses the right to rely on a lack of conformity
of the goods if he does not give the seller notice thereof at the latest
within a period of two years from the date on which the goods were
actually handed over to the buyer, unless this time-limit is
inconsistent with a contractual period of guarantee.
Article 40
The seller is not entitled to rely on the provisions of articles 38 and
39 if the lack of conformity relates to facts of which he knew or
could not have been unaware and which he did not disclose to the
buyer.
Article 41
The seller must deliver goods which are free from any right or claim
of a third party, unless the buyer agreed to take the goods subject
to that right or claim. However, if such right or claim is based on
industrial property or other intellectual property, the seller's
obligation is governed by article 42.
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Article 42
(1) The seller must deliver goods which are free from any right or claim
of a third party based on industrial property or other intellectual
property, of which at the time of the conclusion of the contract the
seller knew or could not have been unaware, provided that the right
or claim is based on industrial property or other intellectual
property –
(a) under the law of the State where the goods will be resold or
otherwise used, if it was contemplated by the parties at the
time of the conclusion of the contract that the goods would be
resold or otherwise used in that State; or
(b) in any other case, under the law of the State where the buyer
has his place of business.
(2) The obligation of the seller under the preceding paragraph does not
extend to cases where –
(a) at the time of the conclusion of the contract the buyer knew or
could not have been unaware of the right or claim; or
(b) the right or claim results from the seller's compliance with
technical drawings, designs, formulae or other such
specifications furnished by the buyer.
Article 43
(1) The buyer loses the right to rely on the provisions of article 41 or
article 42 if he does not give notice to the seller specifying the
nature of the right or claim of the third party within a reasonable
time after he has become aware or ought to have become aware of
the right or claim.
(2) The seller is not entitled to rely on the provisions of the preceding
paragraph if he knew of the right or claim of the third party and the
nature of it.
Article 44
Notwithstanding the provisions of paragraph (1) of article 39 and
paragraph (1) of article 43, the buyer may reduce the price in
accordance with article 50 or claim damages, except for loss of
profit, if he has a reasonable excuse for his failure to give the
required notice.
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Section III – Remedies for breach of contract by the seller
Article 45
(1) If the seller fails to perform any of his obligations under the contract
or this Convention, the buyer may –
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
(2) The buyer is not deprived of any right he may have to claim
damages by exercising his right to other remedies.
(3) No period of grace may be granted to the seller by a court or
arbitral tribunal when the buyer resorts to a remedy for breach of
contract.
Article 46
(1) The buyer may require performance by the seller of his obligations
unless the buyer has resorted to a remedy which is inconsistent
with this requirement.
(2) If the goods do not conform with the contract, the buyer may require
delivery of substitute goods only if the lack of conformity constitutes
a fundamental breach of contract and a request for substitute goods
is made either in conjunction with notice given under article 39 or
within a reasonable time thereafter.
(3) If the goods do not conform with the contract, the buyer may require
the seller to remedy the lack of conformity by repair, unless this is
unreasonable having regard to all the circumstances. A request for
repair must be made either in conjunction with notice given under
article 39 or within a reasonable time thereafter.
Article 47
(1) The buyer may fix an additional period of time of reasonable length
for performance by the seller of his obligations.
(2) Unless the buyer has received notice from the seller that he will not
perform within the period so fixed, the buyer may not, during that
period, resort to any remedy for breach of contract. However, the
buyer is not deprived thereby of any right he may have to claim
damages for delay in performance.
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Article 48
(1) Subject to article 49, the seller may, even after the date for delivery,
remedy at his own expense any failure to perform his obligations, if
he can do so without unreasonable delay and without causing the
buyer unreasonable inconvenience or uncertainty of reimbursement
by the seller of expenses advanced by the buyer. However, the
buyer retains any right to claim damages as provided for in this
Convention.
(2) If the seller requests the buyer to make known whether he will
accept performance and the buyer does not comply with the
request within a reasonable time, the seller may perform within the
time indicated in his request. The buyer may not, during that period
of time, resort to any remedy which is inconsistent with
performance by the seller.
(3) A notice by the seller that he will perform within a specified period
of time is assumed to include a request, under the preceding
paragraph, that the buyer make known his decision.
(4) A request or notice by the seller under paragraph (2) or (3) of this
article is not effective unless received by the buyer.
Article 49
(1) The buyer may declare the contract avoided –
(a) if the failure by the seller to perform any of his obligations
under the contract or this Convention amounts to a
fundamental breach of contract; or
(b) in case of non-delivery, if the seller does not deliver the goods
within the additional period of time fixed by the buyer in
accordance with paragraph (1) of article 47 or declares that he
will not deliver within the period so fixed.
(2) However, in cases where the seller has delivered the goods, the
buyer loses the right to declare the contract avoided unless he does
so –
(a) in respect of late delivery, within a reasonable time after he
has become aware that delivery has been made;
(b) in respect of any breach other than late delivery, within a
reasonable time –
(i) after he knew or ought to have known of the breach;
(ii) after the expiration of any additional period of time fixed
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by the buyer in accordance with paragraph (1) of
article 47, or after the seller has declared that he will not
perform his obligations within such an additional period;
or
(iii) after the expiration of any additional period of time
indicated by the seller in accordance with paragraph (2)
of article 48, or after the buyer has declared that he will
not accept performance.
Article 50
If the goods do not conform with the contract and whether or not the
price has already been paid, the buyer may reduce the price in the
same proportion as the value that the goods actually delivered had
at the time of the delivery bears to the value that conforming goods
would have had at that time. However, if the seller remedies any
failure to perform his obligations in accordance with article 37 or
article 48 or if the buyer refuses to accept performance by the seller
in accordance with those articles, the buyer may not reduce the
price.
Article 51
(1) If the seller delivers only a part of the goods or if only a part of the
goods delivered is in conformity with the contract, articles 46 to 50
apply in respect of the part which is missing or which does not
conform.
(2) The buyer may declare the contract avoided in its entirety only if the
failure to make delivery completely or in conformity with the contract
amounts to a fundamental breach of the contract.
Article 52
(1) If the seller delivers the goods before the date fixed, the buyer may
take delivery or refuse to take delivery.
(2) If the seller delivers a quantity of goods greater than that provided
for in the contract, the buyer may take delivery or refuse to take
delivery of the excess quantity. If the buyer takes delivery of all or
part of the excess quantity, he must pay for it at the contract rate.
Chapter III – Obligations of the Buyer
Article 53
The buyer must pay the price for the goods and take delivery of
them as required by the contract and this Convention.
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Section I – Payment of the price
Article 54
The buyer's obligation to pay the price includes taking such steps
and complying with such formalities as may be required under the
contract or any laws and regulations to enable payment to be
made.
Article 55
Where a contract has been validly concluded but does not
expressly or implicitly fix or make provision for determining the
price, the parties are considered, in the absence of any indication to
the contrary, to have impliedly made reference to the price
generally charged at the time of the conclusion of the contract for
such goods sold under comparable circumstances in the trade
concerned.
Article 56
If the price is fixed according to the weight of the goods, in case of
doubt it is to be determined by the net weight.
Article 57
(1) If the buyer is not bound to pay the price at any other particular
place, he must pay it to the seller –
(a) at the seller's place of business; or
(b) if the payment is to be made against the handing over of the
goods or of documents, at the place where the handing over
takes place.
(2) The seller must bear any increase in the expenses incidental to
payment which is caused by a change in his place of business
subsequent to the conclusion of the contract.
Article 58
(1) If the buyer is not bound to pay the price at any other specific time,
he must pay it when the seller places either the goods or
documents controlling their disposition at the buyer's disposal in
accordance with the contract and this Convention. The seller may
make such payment a condition for handing over the goods or
documents.
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(2) If the contract involves carriage of the goods, the seller may
dispatch the goods on terms whereby the goods, or documents
controlling their disposition, will not be handed over to the buyer
except against payment of the price.
(3) The buyer is not bound to pay the price until he has had an
opportunity to examine the goods, unless the procedures for
delivery or payment agreed upon by the parties are inconsistent
with his having such an opportunity.
Article 59
The buyer must pay the price on the date fixed by or determinable
from the contract and this Convention without the need for any
request or compliance with any formality on the part of the seller.
Section II – Taking delivery
Article 60
The buyer's obligation to take delivery consists –
(a) in doing all the acts which could reasonably be expected of
him in order to enable the seller to make delivery; and
(b) in taking over the goods.
Section III – Remedies for breach of contract by the buyer
Article 61
(1) If the buyer fails to perform any of his obligations under the contract
or this Convention, the seller may –
(a) exercise the rights provided in articles 62 to 65;
(b) claim damages as provided in articles 74 to 77.
(2) The seller is not deprived of any right he may have to claim
damages by exercising his right to other remedies.
(3) No period of grace may be granted to the buyer by a court or
arbitral tribunal when the seller resorts to a remedy for breach of
contract.
Article 62
The seller may require the buyer to pay the price, take delivery or
perform his other obligations, unless the seller has resorted to a
remedy which is inconsistent with this requirement.
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Article 63
(1) The seller may fix an additional period of time of reasonable length
for performance by the buyer of his obligations.
(2) Unless the seller has received notice from the buyer that he will not
perform within the period so fixed, the seller may not, during that
period, resort to any remedy for breach of contract. However, the
seller is not deprived thereby of any right he may have to claim
damages for delay in performance.
Article 64
(1) The seller may declare the contract avoided –
(a) if the failure by the buyer to perform any of his obligations
under the contract or this Convention amounts to a
fundamental breach of contract; or
(b) if the buyer does not, within the additional period of time fixed
by the seller in accordance with paragraph (1) of article 63,
perform his obligation to pay the price or take delivery of the
goods, or if he declares that he will not do so within the period
so fixed.
(2) However, in cases where the buyer has paid the price, the seller
loses the right to declare the contract avoided unless he does so –
(a) in respect of late performance by the buyer, before the seller
has become aware that performance has been rendered; or
(b) in respect of any breach other than late performance by the
buyer, within a reasonable time –
(i) after the seller knew or ought to have known of the
breach; or
(ii) after the expiration of any additional period of time fixed
by the seller in accordance with paragraph (1) of
article 63, or after the buyer has declared that he will not
perform his obligations within such an additional period.
Article 65
(1) If under the contract the buyer is to specify the form, measurement
or other features of the goods and he fails to make such
specification either on the date agreed upon or within a reasonable
time after receipt of a request from the seller, the seller may,
without prejudice to any other rights he may have, make the
specification himself in accordance with the requirements of the
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buyer that may be known to him.
(2) If the seller makes the specification himself, he must inform the
buyer of the details thereof and must fix a reasonable time within
which the buyer may make a different specification. If, after receipt
of such a communication, the buyer fails to do so within the time so
fixed, the specification made by the seller is binding.
Chapter IV – Passing of Risk
Article 66
Loss of or damage to the goods after the risk has passed to the
buyer does not discharge him from his obligation to pay the price,
unless the loss or damage is due to an act or omission of the seller.
Article 67
(1) If the contract of sale involves carriage of the goods and the seller
is not bound to hand them over at a particular place, the risk passes
to the buyer when the goods are handed over to the first carrier for
transmission to the buyer in accordance with the contract of sale. If
the seller is bound to hand the goods over to a carrier at a particular
place, the risk does not pass to the buyer until the goods are
handed over to the carrier at that place. The fact that the seller is
authorized to retain documents controlling the disposition of the
goods does not affect the passage of the risk.
(2) Nevertheless, the risk does not pass to the buyer until the goods
are clearly identified to the contract, whether by markings on the
goods, by shipping documents, by notice given to the buyer or
otherwise.
Article 68
The risk in respect of goods sold in transit passes to the buyer from
the time of the conclusion of the contract. However, if the
circumstances so indicate, the risk is assumed by the buyer from
the time the goods were handed over to the carrier who issued the
documents embodying the contract of carriage. Nevertheless, if
at the time of the conclusion of the contract of sale the seller knew
or ought to have known that the goods had been lost or damaged
and did not disclose this to the buyer, the loss or damage is at the
risk of the seller.
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Article 69
(1) In cases not within articles 67 and 68, the risk passes to the buyer
when he takes over the goods or, if he does not do so in due time,
from the time when the goods are placed at his disposal and he
commits a breach of contract by failing to take delivery.
(2) However, if the buyer is bound to take over the goods at a place
other than a place of business of the seller, the risk passes when
delivery is due and the buyer is aware of the fact that the goods are
placed at his disposal at that place.
(3) If the contract relates to goods not then identified, the goods are
considered not to be placed at the disposal of the buyer until they
are clearly identified to the contract.
Article 70
If the seller has committed a fundamental breach of contract,
articles 67, 68 and 69 do not impair the remedies available to the
buyer on account of the breach.
Chapter V – Provisions Common to the Obligations of the Seller and of the
Buyer
Section I – Anticipatory breach and instalment contracts
Article 71
(1) A party may suspend the performance of his obligations if, after the
conclusion of the contract, it becomes apparent that the other party
will not perform a substantial part of his obligations as a result of –
(a) a serious deficiency in his ability to perform or in his
creditworthiness; or
(b) his conduct in preparing to perform or in performing the
contract.
(2) If the seller has already dispatched the goods before the grounds
described in the preceding paragraph become evident, he may
prevent the handing over of the goods to the buyer even though the
buyer holds a document which entitles him to obtain them. The
present paragraph relates only to the rights in the goods as
between the buyer and the seller.
(3) A party suspending performance, whether before or after dispatch
of the goods, must immediately give notice of the suspension to the
other party and must continue with performance if the other party
provides adequate assurance of his performance.
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Article 72
(1) If prior to the date for performance of the contract it is clear that one
of the parties will commit a fundamental breach of contract, the
other party may declare the contract avoided.
(2) If time allows, the party intending to declare the contract avoided
must give reasonable notice to the other party in order to permit him
to provide adequate assurance of his performance.
(3) The requirements of the preceding paragraph do not apply if the
other party has declared that he will not perform his obligations.
Article 73
(1) In the case of a contract for delivery of goods by instalments, if the
failure of one party to perform any of his obligations in respect of
any instalment constitutes a fundamental breach of contract with
respect to that instalment, the other party may declare the contract
avoided with respect to that instalment.
(2) If one party's failure to perform any of his obligations in respect of
any instalment gives the other party good grounds to conclude that
a fundamental breach of contract will occur with respect to future
instalments, he may declare the contract avoided for the future,
provided that he does so within a reasonable time.
(3) A buyer who declares the contract avoided in respect of any
delivery may, at the same time, declare it avoided in respect of
deliveries already made or of future deliveries if, by reason of their
interdependence, those deliveries could not be used for the
purpose contemplated by the parties at the time of the conclusion of
the contract.
Section II – Damages
Article 74
Damages for breach of contract by one party consist of a sum equal
to the loss, including loss of profit, suffered by the other party as a
consequence of the breach. Such damages may not exceed the
loss which the party in breach foresaw or ought to have foreseen at
the time of the conclusion of the contract, in the light of the facts
and matters of which he then knew or ought to have known, as a
possible consequence of the breach of contract.
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Article 75
If the contract is avoided and if, in a reasonable manner and within
a reasonable time after avoidance, the buyer has bought goods in
replacement or the seller has resold the goods, the party claiming
damages may recover the difference between the contract price
and the price in the substitute transaction as well as any further
damages recoverable under article 74.
Article 76
(1) If the contract is avoided and there is a current price for the goods,
the party claiming damages may, if he has not made a purchase or
resale under article 75, recover the difference between the price
fixed by the contract and the current price at the time of avoidance
as well as any further damages recoverable under article 74. If,
however, the party claiming damages has avoided the contract after
taking over the goods, the current price at the time of such taking
over shall be applied instead of the current price at the time of
avoidance.
(2) For the purposes of the preceding paragraph, the current price is
the price prevailing at the place where delivery of the goods should
have been made or, if there is no current price at that place, the
price at such other place as serves as a reasonable substitute,
making due allowance for differences in the cost of transporting the
goods.
Article 77
A party who relies on a breach of contract must take such
measures as are reasonable in the circumstances to mitigate the
loss, including loss of profit, resulting from the breach. If he fails to
take such measures, the party in breach may claim a reduction in
the damages in the amount by which the loss should have been
mitigated.
Section III – Interest
Article 78
If a party fails to pay the price or any other sum that is in arrears,
the other party is entitled to interest on it, without prejudice to any
claim for damages recoverable under article 74.
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Section IV – Exemptions
Article 79
(1) A party is not liable for a failure to perform any of his obligations if
he proves that the failure was due to an impediment beyond his
control and that he could not reasonably be expected to have taken
the impediment into account at the time of the conclusion of the
contract or to have avoided or overcome it or its consequences.
(2) If the party's failure is due to the failure by a third person whom he
has engaged to perform the whole or a part of the contract, that
party is exempt from liability only if –
(a) he is exempt under the preceding paragraph; and
(b) the person whom he has so engaged would be so exempt if
the provisions of that paragraph were applied to him.
(3) The exemption provided by this article has effect for the period
during which the impediment exists.
(4) The party who fails to perform must give notice to the other party of
the impediment and its effect on his ability to perform. If the notice
is not received by the other party within a reasonable time after the
party who fails to perform knew or ought to have known of the
impediment, he is liable for damages resulting from such
non-receipt.
(5) Nothing in this article prevents either party from exercising any right
other than to claim damages under this Convention.
Article 80
A party may not rely on a failure of the other party to perform, to the
extent that such failure was caused by the first party's act or
omission.
Section V – Effects of avoidance
Article 81
(1) Avoidance of the contract releases both parties from their
obligations under it, subject to any damages which may be due.
Avoidance does not affect any provision of the contract for the
settlement of disputes or any other provision of the contract
governing the rights and obligations of the parties consequent upon
the avoidance of the contract.
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(2) A party who has performed the contract either wholly or in part may
claim restitution from the other party of whatever the first party has
supplied or paid under the contract. If both parties are bound to
make restitution, they must do so concurrently.
Article 82
(1) The buyer loses the right to declare the contract avoided or to
require the seller to deliver substitute goods if it is impossible for
him to make restitution of the goods substantially in the condition in
which he received them.
(2) The preceding paragraph does not apply –
(a) if the impossibility of making restitution of the goods or of
making restitution of the goods substantially in the condition in
which the buyer received them is not due to his act or
omission;
(b) if the goods or part of the goods have perished or deteriorated
as a result of the examination provided for in article 38; or
(c) if the goods or part of the goods have been sold in the normal
course of business or have been consumed or transformed by
the buyer in the course of normal use before he discovered or
ought to have discovered the lack of conformity.
Article 83
A buyer who has lost the right to declare the contract avoided or to
require the seller to deliver substitute goods in accordance with
article 82 retains all other remedies under the contract and this
Convention.
Article 84
(1) If the seller is bound to refund the price, he must also pay interest
on it, from the date on which the price was paid.
(2) The buyer must account to the seller for all benefits which he has
derived from the goods or part of them –
(a) if he must make restitution of the goods or part of them; or
(b) if it is impossible for him to make restitution of all or part of the
goods or to make restitution of all or part of the goods
substantially in the condition in which he received them, but he
has nevertheless declared the contract avoided or required
the seller to deliver substitute goods.
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Section VI – Preservation of goods
Article 85
If the buyer is in delay in taking delivery of the goods or, where
payment of the price and delivery of the goods are to be made
concurrently, if he fails to pay the price, and the seller is either in
possession of the goods or otherwise able to control their
disposition, the seller must take such steps as are reasonable in the
circumstances to preserve them. He is entitled to retain them until
he has been reimbursed his reasonable expenses by the buyer.
Article 86
(1) If the buyer has received the goods and intends to exercise any
right under the contract or this Convention to reject them, he must
take such steps to preserve them as are reasonable in the
circumstances. He is entitled to retain them until he has been
reimbursed his reasonable expenses by the seller.
(2) If goods dispatched to the buyer have been placed at his disposal
at their destination and he exercises the right to reject them, he
must take possession of them on behalf of the seller, provided that
this can be done without payment of the price and without
unreasonable inconvenience or unreasonable expense. This
provision does not apply if the seller or a person authorized to take
charge of the goods on his behalf is present at the destination. If
the buyer takes possession of the goods under this paragraph, his
rights and obligations are governed by the preceding paragraph.
Article 87
A party who is bound to take steps to preserve the goods may
deposit them in a warehouse of a third person at the expense of the
other party provided that the expense incurred is not unreasonable.
Article 88
(1) A party who is bound to preserve the goods in accordance with
article 85 or 86 may sell them by any appropriate means if there
has been an unreasonable delay by the other party in taking
possession of the goods or in taking them back or in paying the
price or the cost of preservation, provided that reasonable notice of
the intention to sell has been given to the other party.
(2) If the goods are subject to rapid deterioration or their preservation
would involve unreasonable expense, a party who is bound to
preserve the goods in accordance with article 85 or 86 must take
reasonable measures to sell them. To the extent possible he must
give notice to the other party of his intention to sell.
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(3) A party selling the goods has the right to retain out of the proceeds
of sale an amount equal to the reasonable expenses of preserving
the goods and of selling them. He must account to the other party
for the balance.
PART IV – FINAL PROVISIONS
Article 89
The Secretary-General of the United Nations is hereby designated
as the depositary for this Convention.
Article 90
This Convention does not prevail over any international agreement
which has already been or may be entered into and which contains
provisions concerning the matters governed by this Convention,
provided that the parties have their places of business in States
parties to such agreement.
Article 91
(1) This Convention is open for signature at the concluding meeting of
the United Nations Conference on Contracts for the International
Sale of Goods and will remain open for signature by all States at
the Headquarters of the United Nations, New York until
30 September 1981.
(2) This Convention is subject to ratification, acceptance or approval by
the signatory States.
(3) This 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 are
to be deposited with the Secretary-General of the United Nations.
Article 92
(1) A Contracting State may declare at the time of signature,
ratification, acceptance, approval or accession that it will not be
bound by Part II of this convention or that it will not be bound by
Part III of this Convention.
(2) A Contracting State which makes a declaration in accordance with
the preceding paragraph in respect of Part II or Part III of this
Convention is not to be considered a Contracting State within
paragraph (1) of article 1 of this Convention in respect of matters
governed by the Part to which this declaration applies.
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Article 93
(1) If a Contracting State has two or more territorial units in which,
according to its constitution, different systems of law are applicable
in relation to the matters dealt with in this Convention, it may, at the
time of signature, ratification, acceptance, approval or accession,
declare that this Convention is to extend to all its territorial units or
only to one or more of them, and may amend its declaration by
submitting another declaration at any time.
(2) These declarations are to be notified to the depositary and are to
state expressly the territorial units to which the Convention extends.
(3) If, by virtue of a declaration under this article, this Convention
extends to one or more but not all of the territorial units of a
Contracting State, and if the place of business of a party is located
in that State, this place of business, for the purposes of this
Convention, is considered not to be in a Contracting State, unless it
is in a territorial unit to which the Convention extends.
(4) If a Contracting State makes no declaration under paragraph (1) of
this article, the Convention is to extend to all territorial units of that
State.
Article 94
(1) Two or more Contracting States which have the same or closely
related legal rules on matters governed by this Convention may at
any time declare that the Convention is not to apply to contracts of
sale or to their formation where the parties have their places of
business in those States. Such declarations may be made jointly or
by reciprocal unilateral declarations.
(2) A Contracting State which has the same or closely related legal
rules on matters governed by this Convention as one or more non-
Contracting States may at any time declare that the Convention is
not to apply to contracts of sale or to their formation where the
parties have their places of business in those States.
(3) If a State which is the object of a declaration under the preceding
paragraph subsequently becomes a Contracting State, the
declaration made will, as from the date on which the Convention
enters into force in respect of the new Contracting State, have the
effect of a declaration made under paragraph (1), provided that the
new Contracting State joins in such declaration or makes a
reciprocal unilateral declaration.
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Article 95
Any State may declare at the time of the deposit of its instrument of
ratification, acceptance, approval or accession that it will not be
bound by subparagraph (1)(b) of article 1 of this Convention.
Article 96
A Contracting State whose legislation requires contracts of sale to
be concluded in or evidenced by writing may at any time make a
declaration in accordance with article 12 that any provision of article
11, article 29, or Part II of this Convention, that allows a contract or
sale or its modification or termination by agreement or any offer,
acceptance, or other indication of intention to be made in any form
other than in writing, does not apply where any party has his place
of business in that State.
Article 97
(1) Declarations made under this Convention at the time of signature
are subject to confirmation upon ratification, acceptance or
approval.
(2) Declarations and confirmations of declarations are to be in writing
and be formally notified to the depositary.
(3) A declaration takes effect simultaneously with the entry into force of
this Convention in respect of the State concerned. However, a
declaration of which the depositary receives formal notification after
such entry into force takes effect on the first day of the month
following the expiration of six months after the date of its receipt by
the depositary. Reciprocal unilateral declarations under article 94
take effect on the first day of the month following the expiration of
six months after the receipt of the latest declaration by the
depositary.
(4) Any State which makes a declaration under this Convention may
withdraw it at any time by a formal notification in writing addressed
to the depositary. Such withdrawal is to take effect on the first day
of the month following the expiration of six months after the date of
the receipt of the notification by the depositary.
(5) A withdrawal of a declaration made under article 94 renders
inoperative, as from the date on which the withdrawal takes effect,
any reciprocal declaration made by another State under that article.
Article 98
No reservations are permitted except those expressly authorized in
this Convention.
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Article 99
(1) This Convention enters into force, subject to the provisions of
paragraph (6) of this article, on the first day of the month following
the expiration of twelve months after the date of deposit of the tenth
instrument of ratification, acceptance, approval or accession,
including an instrument which contains a declaration made under
article 92.
(2) When a State ratifies, accepts, approves or accedes to this
Convention after the deposit of the tenth instrument of ratification,
acceptance, approval or accession, this Convention, with the
exception of the Part excluded, enters into force in respect of that
State, subject to the provisions of paragraph (6) of this article, on
the first day of the month following the expiration of twelve months
after the date of the deposit of its instrument of ratification,
acceptance, approval or accession.
(3) A State which ratifies, accepts, approves or accedes to this
Convention and is a party to either or both the Convention relating
to a Uniform Law on the Formation of Contracts for the International
Sale of Goods done at The Hague on 1 July 1964 (1964 Hague
Formation Convention) and the Convention relating to a Uniform
Law on the International Sale of Goods done at The Hague on
1 July 1964 (1964 Hague Sales Convention) shall at the same time
denounce, as the case may be, either or both the 1964 Hague
Sales Convention and the 1964 Hague Formation Convention by
notifying the Government of the Netherlands to that effect.
(4) A State party to the 1964 Hague Sales Convention which ratifies,
accepts, approves or accedes to the present Convention and
declares or has declared under article 92 that it will not be bound by
Part II of this Convention shall at the time of ratification,
acceptance, approval or accession denounce the 1964 Hague
Sales Convention by notifying the Government of the Netherlands
to that effect.
(5) A State party to the 1964 Hague Formation Convention which
ratifies, accepts, approves, or accedes to the present Convention
and declares or has declared under article 92 that it will not be
bound by Part III of this Convention shall at the time of ratification,
acceptance, approval or accession denounce the 1964 Hague
Formation Convention by notifying the Government of the
Netherlands to that effect.
(6) For the purpose of this article, ratifications, acceptances, approvals
and accessions in respect of this Convention by States parties to
the 1964 Hague Formation Convention or to the 1964 Hague Sales
Convention shall not be effective until such denunciations as may
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be required on the part of those States in respect of the latter two
Conventions have themselves become effective. The depositary of
this Convention shall consult with the Government of the
Netherlands, as the depositary of the 1964 Conventions, so as to
ensure necessary co-ordination in this respect.
Article 100
(1) This Convention applies to the formation of a contract only when
the proposal for concluding the contract is made on or after the date
when the Convention enters into force in respect of the Contracting
States referred to in subparagraph (1)(a) or the Contracting States
referred to in subparagraph (1)(b) of article 1.
(2) This Convention applies only to contracts concluded on or after the
date when the Convention enters into force in respect of the
Contracting States referred to in subparagraph (1)(a) or the
Contracting State referred to in paragraph (1)(b) of article 1.
Article 101
(1) A Contracting State may denounce this Convention, or Part II or
Part III of the Convention, by a formal notification in writing
addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following
the expiration of twelve 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.
DONE at Vienna, this eleventh day of April, one thousand nine hundred and
eighty, in a single original, of which the Arabic, Chinese, English, French,
Russian and Spanish texts are equally authentic.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly
authorized by their respective Governments, have signed this Convention.
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ENDNOTES
Sale of Goods (Vienna Convention) Act 1987 33
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
Sale of Goods (Vienna Convention) Act 1987 (Act No. 12, 1987)
Assent date 25 June 1987
Commenced 1 April 1989 (Gaz G41, 12 October 1988, p 4)
Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007)
Assent date 17 May 2007
Commenced s 10: 1 July 2007 (Gaz G26, 27 June 2007, p 3);
rem: 17 May 2007
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table
of amendments to this reprint) are made by the Interpretation Legislation
Amendment Act 2018 (Act No. 22, 2018) to: s 1.
4 LIST OF AMENDMENTS
s 7 amd No. 7, 2007, s 16
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