The Validity of International Sales Contracts: Irrelevance of the 'Validity Exception' in Article 4 Vienna Sales Convention and a Novel Approach to Determining the Convention's Scope

in: Ingeborg Schwenzer and Lisa Spagnolo (eds.), Boundaries and Intersections: The 5th Annual MAA Schlechtriem CISG Conference, The Hague: Eleven International Publishing (2014), pp. 95-117 Throughout the history of uniform law for international sales, the rules governing the validity of cross-border sales contracts have proven particularly difficult to harmonize because they differ greatly between the various domestic laws. This dilemma inter alia resulted in the "validity exception" in Article 4 sentence 2(a) of the United Nations Convention for Contracts for the International Sale of Goods of 11 April 1980 (CISG) being adopted as compromise, a provision that supposedly excludes such matters from the scope of the uniform sales law. The present article attempts to demonstrate that this provision in fact provides little assistance in deciding which validity-related matters are governed by the Convention and which are not, and that the "validity exception" is therefore in truth irrelevant. It continues by outlining a novel two-step approach to determining the CISG's scope with respect to validity issues. According to this approach, a domestic law rule (pertaining to validity matters or other issues) is displaced by the Convention if (1) it is triggered by a factual situation which the Convention also applies to (the "factual" criterion), and (2) it pertains to a matter that is also regulated by the Convention (the "legal" criterion). Only if both criteria are cumulatively fulfilled, the domestic law rule concerned overlaps with the Convention’s sphere of application in a way that will generally result in its preemption. In the last part of the article, three issues that may be viewed as concerning the "validity" of international sales contracts are discussed, each in turn being viewed through the traditional lenses of Article 4 CISG and the alternative two-step approach. These issues are: Mistakes and their effect upon CISG contracts; Consumer rights of withdrawal; The so-called "button solution" under recent e-commerce laws.