In a 1992 decision of the Canadian Supreme Court, even as the strong glow of an unfolding and revolutionary Internet was piercing over the horizon, these prescient words were used:
"Legal systems and rules are a reflection and expression of the fundamental values of a society, so to respect diversity of societies it is important to respect differences in legal systems. But if this is to work in our era where numerous transactions and interactions spill over the borders defining legal communities in our decentralized world legal order, there must also be a workable method of coordinating this diversity. Otherwise, the anarchic system's worst attributes emerge, and individual litigants will pay the inevitable price of unfairness."
In 1989, the UN published the Convention on Contracts for the International Sale of Goods. It allows parties to international e-commerce to contract-out. The Convention replaced an earlier, mostly ignored document, the Hague Convention on the Law Applicable to the International Sale of Goods.
In many jurisdictions, the Convention has picked-up the acronym of CISG, while others call it the Vienna Convention, as it was formally adopted at a UN conference hosted in Vienna in March and April of 1980.
Article 11 of the CISG states:
"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"
In recognizing the varying international standards in regards to the need for contracts to be in writing, the Convention allows for states to opt-out of §11 and to make written contracts mandatory in order for the Convention to apply as the default regime in any international sale of goods contract.
Perhaps the mist significant feature of the Convention is embedded in its name: it applies only to the sale of goods and has no application to the international sale of services.
Also, §2 further reduces its reach:
"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."
At the same time, the Convention does not define the term goods.
But it does neatly codify contract law, using few words to describe a process that transforms most contract law professors into babbling idiots. To wit, from §18 and §25:
"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.
"An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror.
"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."
REFERENCES:
- Guide To Computer Law, Volume 1, Chapter 11, "International Aspects" (Chicago: Commerce Clearing House (CCH) Inc., 2002) ¶11,160
- Halsbury's Laws of England, Volume 41, Sale of Goods
- Hunt v T&N 1993 4 SCR 289
- International Sale of Goods Contracts Convention Act, Statutes of Canada 1991, Chapter 13
- Pace Law School, Institute of International Commercial Law , White Plains, New York