CISG Article 6 and Issues of Formation: The Problem of Circularity

3 Belgrade L. Rev. 124 (Int’l ed. 2011)

15 Vindobona J. 105 (2011)

Touro Law Center Legal Studies Research Paper

16 Pages Posted: 15 Nov 2013

See all articles by Jack Graves

Jack Graves

Touro University - Jacob D. Fuchsberg Law Center

Date Written: 2011

Abstract

CISG Article 6 broadly allows parties to exclude the application of the CISG or derogate from its provisions. The application of Article 6 is relatively straightforward when addressing the rights and obligations of the parties, but encounters a challenge of circularity when addressing issues of contract formation. How can the parties agree to exclude or derogate from the application of the CISG if it is not yet clear whether they have agreed to anything at all? This article explores this narrow, but important question. Can the parties effectively exclude the application of the CISG or derogate from its provisions (i.e., “opt out”) on contract formation within the agreement for which contract formation is at issue? The article begins with a brief elaboration on the nature of the problem, suggests a means of resolving this issue by looking to the general principles underlying the CISG, and then applies those principles to a series of hypothetical formation problems.

Keywords: Article 6, Opt Out, Formation, Separability, CISG

Suggested Citation

Graves, Jack Michael, CISG Article 6 and Issues of Formation: The Problem of Circularity (2011). 3 Belgrade L. Rev. 124 (Int’l ed. 2011), 15 Vindobona J. 105 (2011), Touro Law Center Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=2350225

Jack Michael Graves (Contact Author)

Touro University - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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