The Vienna Convention on Contracts for Sale of

Goods 1980
Convention on Contracts for International Sale of Goods was developed by
the United Nations Commission on International Trade Law and was signed in
Vienna in 1980 (here in after referred to as ’the Convention’). It was drafted
with the aim of harmonising the law on cross border trade in goods between
people in different states or better yet to provide certainty and peace of mind
to people who are involved in cross border trade transactions by alienating
uncertainty as to what law governs the contract. The law relating to sale
contracts vary from state to state, and uncertainty as to applicable law would
mean uncertainty also in respect of rights, obligations and remedies of the
parties to the contract. The Convention was meant to provide a solution to
the problem of uncertainty or unpredictability. It sought to harmonise the law
relating to international sales in the form of a uniform set of rules governing
such a transaction1.

The Convention applies to contracts of sale of goods between persons with

places of business in different countries. It governs issues involving the
formation of a contract for sale of goods and the rights and obligations arising
there from. Provisions within the Convention are broad in scope, seeing as
they cover a range of issues from offer and acceptance to remedies for
breach of contract. Although it is self executing in nature, it remains mindful
of the will of parties to the contract and leaves them with autonomy to avoid
application of the Convention or vary from any of its provisions in their
contract should they choose to do so2.

The Sale of Goods Act

The Gambian Sale of Goods Act 1994 derives its origin from the English one.
The latter is known as the Sale of Goods Act 1979. It is an Act of the British
parliament which regulates contracts through which goods are bought and

Indira Carr

The Convention on Contracts for International Sale of Goods: Temporarily

out of “Service”?
sold. The Sale of Goods Act performs several functions. The Act lays down a
small number of compulsory legal rules, but these restrictions are minimal:
the bulk of the Act is concerned with a range of presumptions and implied
terms, which aim to reflect the commercial expectations in the most
commonly agreed sales contracts. In the absence of contrary agreement
these terms will govern a contract within the Act's remit. The benefits in
efficiency and legal certainty have led to many jurisdictions adopting the
legislation wholesale, and versions of the Sale of Goods Act have been
adopted in almost all the former territories of the British Empire and
Commonwealth. This is where the Gambia comes in. Like the British
legislation, the Sale of Goods Act 1994 contains legal rules which consist of;
restrictions, obligations and rights of buyer and seller in a contract for sale of
goods. The rights and obligations operate in the form of implied terms which
are indoctrinated into a contract of sale regardless of whether or not they
were expressly mentioned by the parties to the contract.

Contrasts between the Act and the Convention

The Convention unlike the Act is truly international in character. The former
has been successful in promulgating a set of legal standards used by many to
structure international commercial transactions. It is considered as successful
because; it is widely accepted and has been ratified by multiple countries
around the world. Most members of the European Union are signatories to the
Convention. So also are the World’s largest trading nations namely; the
United States of America and China respectively. A total of seventy six
countries are signatories to the Convention3. On this basis, the Convention
unlike the Act, could be considered as providing a common point of reference
amongst the various jurisdictions that are signatory to it4.

The Convention is a cross border instrument which was formulated to

eliminate problems regarding choice of law. It governs contracts involving
parties in and from different states. The Sale of Goods Act 1994 is an Act of

get a reference for this

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the Gambia National Assembly and is restricted to the Gambia borders in its
scope of application.

The Convention also defers from the Act owing to the neutral nature in which
its provisions are drafted. Some commentators on the subject seem to be of
the view that the primary operative drafting principle was to produce a
document that all would agree to and none would reject5. Because the
drafters of the Convention adopted a vague and compromising approach to
drafting, as opposed to setting out clear and concise universal principles of
sales law, the 1980 Convention is as a result, more susceptible to adoption by
trading nations of the world. To better put it, the Convention was intended as
a truly international instrument for wide acceptance. As such it does not
promote or adopt principles found in any one legal system in preference to
those of another (as would be the case if it’s drafting style was more detailed
and strict), but strives for a compromise that would be acceptable to all
regardless of their respective legal, economic or political backgrounds 6. It is a
blend of socialist, third world, civil and common law principles with the
resulting product being; a neutral set of international trade rules governing
contracts of sale of goods7. The Act on the other hand is more comprehensive
in that it contains detailed rules regulating almost all aspects of the
relationship between buyer and seller. The Act seems to be more detailed
than the Convention and covers aspects of the buyer/seller relationship which
the Convention has ignored. Give examples... First on this list is; consumer
transactions. The latter as the name implies involves goods purchased for
domestic use provided the seller is aware of the use to which the goods in
question are to be put. The reason given for the exclusion of consumer
transactions is; that such transactions are normally protected in varying

The Rossett Article

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The New International Law of Sales: a marriage between socialist, third

world, common and civil law principles by Zwart (1988) 13 North Carolina Journal of
International Law and Commercial Regulation 109
degrees by laws of individual states. It was believed that it would be difficult
if not impossible to achieve a common framework for consumer sales in
absence of a common policy amongst states. Needless to say the provision
leaves a cloud of uncertainty in its wake. The latter comes to light in
situations where an accountant for instance, purchases a laptop for personal
use and occasionally for professional purposes. The question which arises
becomes; will the purchase of the laptop fall within or outside the scope of
the Convention? Also, who bears the burden of proving the seller’s knowledge
of the intended use of the goods? The Convention does not deal with
procedural issues such as burden of proof which inevitably would be left to be
decided by individual national courts applying national laws of their various
jurisdictions8.

In addition, the Convention lacks provisions that govern the validity of the
contract of sale. The latter is specifically excluded by Article 4 of the
Convention. This means that issues such as legal capacity, illegality, mistake,
agency contracts and set off claims would fall to be decided by national
courts applying varying provisions of their respective national laws. Also, the
issue of ‘passing of title or property’ is also left untouched by provisions of
the Convention despite its significance (Article 41 and 45). The reason being;
that it would be difficult to achieve a common framework amongst multiple
countries due to their varying legal systems. What is the Act’s stance on
these issues?

Owing to its international nature, the Convention is likely to fall victim to

varying interpretations amongst courts in different contracting states. The Act
on the other hand is interpreted in accordance with methods of statutory
interpretation adopted in the Gambia and is far less likely to fall prey to lack
of uniform interpretation

Convention enthusiasts argue that the drafting style is lucid, uncluttered and
capable of being grasped on first reading. Accordingly, it is written in plain
business language. The Act on the other hand is a statute drafted by the
National Assembly; it is a highly detailed legal document subject to rules of
interpretation of the Courts.

Article 2 (d) and (e) exclude sale of equities (stocks, shares, investment
securities, negotiable instruments and money from the scope of the
Convention. The sale of ships, vessels, hovercraft or aircraft are also
excluded. No such exclusion is done in the Act.

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