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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.
Indira Carr
Indirra Carr
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
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?
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.