As discussed above, declaration of avoidance of the contract is effective only if made by notice to the other party. Nonetheless, the rule that notice of termination must be given does not require that the notice be in a particular form or by a specific means of transmission. By virtue of the Convention's "informality principle", "[t]he notice can be oral or written and can be transmitted by any means." 563
It is to be noted, however, that eight States, including China, made declarations under Art. 96 rejecting provisions of CISG that allowed effective notification in form other than in writing -- e.g., Arts. 11, 12, 96. 564 Nonetheless, even when Contracting States make use of the reservation in Art. 96, domestic requirements on form are only to be regarded as far as they relate to the formation of the contract, its modification or consensual termination. The precise formulation contained in Arts. 12, 29 and 96 "its modification or termination by agreement" makes it clear that a one-sided declaration to terminate a contract does not fall within the scope of the reservation and the corresponding domestic regulations on form. 565 Moreover, this informality principle does not apply (to the transmission) if the contract, usages or practices provide otherwise (Arts. 6 and 9), nor does it apply to the content of the notice. 566
Thus, it may be said that generally there is no formal procedure for avoidance other than a mere notice. However, it would not be consistent with good faith and fair dealing for a party to rely on, for instance, a purely casual remark made to the other party. For notices of major importance written form may be appropriate. 567 Particular care will have to be taken when choosing the means for communication of such an important decision like avoidance. Therefore, both the UNIDROIT Principles and the PECL add the wording "appropriate to the circumstances" when they lay down the principle that any notice required are not subject to any particular requirements as to form, but may be given by any means. 568 In fact, as to be discussed below, it is where the notice of termination is made with the means appropriate under the circumstances that the dispatch theory is decisive as to the notice.
However, a means of communication which is appropriate in one set of circumstances may not be appropriate in another set of circumstances. For example, even though a particular form of notice may normally be sent by airmail, in a given case the need for speed may make only electronic communication, telegram, telex, or telephone, a means appropriate "in the circumstances". 569 In other words, "[w]hich means are appropriate will depend on the actual circumstances of the case, in particular on the availability and the reliability of the various modes of communication, and the importance and/or urgency of the message to be delivered. Thus, if the postal service is unreliable, it might be more appropriate to use fax, telex or other forms of electronic communication for a communication which has to be made in writing, or the telephone if an oral communication is sufficient. In choosing the means of communication the sender must as a rule take into account the situation which exists both in its own and in the addressee's country." 570
In short, notices may be made in any form - orally, in writing, by telex, by fax or by electronic mail, for example - provided that the form of notice used is appropriate to the circumstances. A communication is appropriate to the circumstances, if it is appropriate to the situation of the parties. 571 And there may be more than one means of communication which is appropriate in the circumstances. In such a case the sender may use the one which is the most convenient for him. 572
563. Supra. note 4, Comment 4.
564. See John O. Honnold, Uniform Law for International Sales, 3rd ed., Kluwer (1999); p. 215. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/e-text-26.html› It is also to be noted that the "informality principle" has been clearly adopted by the new China Contract Law (e.g. Art. 10).
565. See Peter Schlechtriem, Uniform Sales Law, Manz (1986); p. 45. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/e-text-26.html›
566. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/e-text-26.html›
567. See Comment and Notes to the PECL: Art. 1:303. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp27.html›
568. See Secretariat Commentary on Art. 25 of the 1978 Draft [counterpart of CISG Art. 27], Comment 3. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-27.html›
569. See Comment 1 on Art. 1.9 UPICC.
570. Supra. note 20.
571. Supra. note 20, Comment 2.
572. Supra. note 15.
Eric von Hippel
Erik S. Raymond