Introduction to CISG in Denmark

Act no. 733 of 7 December 1988, the Danish International Sale of Goods Act, gave effect to CISG, which is now part of Danish law. Section 1 of the Act reads:

“1. The provisions of United Nations Convention on the International Sale of Goods shall apply in Denmark, see the Schedule to this Act. Part II of the Convention on the formation of the contract shall not apply, however.”

The Convention was officially ratified by Royal Decree of 27 January 1989. The Convention came into force on 1 March 1990, see Executive Order no. 110 of 22 February 1990 issued by the Danish Minister of Justice.

The following points are important to note concerning the Danish ratification:

1) Denmark has not ratified the Convention in its entirety, cf. the Article 92 declaration

As section 1 of the Danish Act indicates, Denmark has declared that it will not be bound by Part II on the formation of the contract. This is an authorized declaration under Art. 92(1) of the CISG, and Finland, Norway and Sweden have filed similar declarations. This is important when a contract is governed by Danish law, as in such cases, the provisions of the Danish Contracts Act apply. If a contract is governed by the law of another country, the provisions of Part II of the CISG apply provided the other country has ratified the CISG in its entirety.

The reason for the Danish Article 92 declaration is given in the comments by the Danish Ministry of Justice on the Bill on the International Sale of Goods (Lovforslag nr. 35, Folketingstidende 1988-89, 1. samling, tillæg A, sp. 869-1100 [Bill no. 35, Official Report of Parliamentary Proceedings 1988-89, vol. 1, Appendix A, columns 869-1100]):

“The provisions of the Convention – which are influenced by the contract law of the common-law countries – differ from the corresponding provisions of the Danish Contracts Act, in particular the provisions on offers and the revocation of offers. These provisions are unfamiliar to Danish law. Furthermore, the Convention does not regulate the validity of contracts, see Article 4(a) of the Convention. Accordingly, the implementation into Danish law of Part II will make the provisions of the Convention applicable to the formation of the contract, whereas the provisions of the Danish Contracts Act will be applicable to the question concerning the validity of the contract; this will result in legal uncertainty as to whether a valid contract has been concluded.”

The comment fails to note the fact that Danish courts – as mentioned above – must apply Part II of the CISG if the contract is governed by the law of a country that has ratified the CISG in its entirety and therefore bound by the provisions of Part II (see e.g. Joseph Lookofsky & Peter Møgelvang-Hansen: En ny dansk indenlandsk købelov: KBL III? [A New Domestic Danish Sale of Goods Act?], in UfR 1995, p. 240 et seq.). Moreover, it is debatable whether the provisions of Part II of the CISG are truly foreign to Danish law, as indicated in the comments made by the Danish Ministry of Justice (see e.g. Niels Elmelund: Lærebog i dansk og international købsret [Textbook on Danish and International Sales Law] (1996), p. 235, note 5).

2) The Convention does not apply to inter-Nordic trade, cf. the Article 94 declaration

Section 2 of the Danish International Sale of Goods Act provides that the Act does not apply to contracts of sale where one of the parties has his place of business in Denmark, Finland, Iceland, Norway or Sweden and the other party has his place of business in another of these countries. Denmark has filed an authorized declaration to this effect under Articles 94(1) and 94(2) of the CISG, and the other Nordic countries have filed similar declarations. According to the comments by the Ministry of Justice on the Danish International Sale of Goods Act, the reason is that:

“One of the purposes of the Nordic legislative co-operation and the consequent uniformity of law is to facilitate trade between the Nordic countries. Uniform legislation regulating sales reduces the need for a buyer in a Nordic country to make himself familiar with the rules regulating sales in countries other than his own. This is particularly important, as small businesses often do their first international trade in the Nordic market. A small business has generally no access to the expertise required when its contracts are subject to foreign law.

Alternatively, uniform rules regulating trade in the Nordic market may in effect be laid down by making the Convention applicable to contracts of sale where the parties have their places of business in the Nordic countries. However, the result of this will be that different rules will apply to domestic trade and between the Nordic countries. Such a solution will therefore be incompatible with the efforts to make the Nordic market one large domestic market.”

The conditions of making this declaration no longer apply, as Finland, Norway and Sweden have adopted new Sales of Goods Acts that are much influenced by the CISG.

Against this background, it is not surprising that recommendations have been made for the Article 92 and 94 declarations to be withdrawn as soon as possible (see e.g. Lookofsky & Møgelvang-Hansen op. cit; and for a discussion of the Article 92 declaration, see Ketilbjørn Hertz & Joseph Lookofsky: CISG og værneting i UfR 2001.1039H [CISG and Jurisdiction in the Supreme Court Judgment reported in UfR 2001.1039H], in UfR 2001B, p. 558 et seq.).

3) Danish is not an authentic language of the Convention

The Danish Ministry of Justice translated the CISG text into Danish, and this translation is included as a Schedule to the Danish International Sale of Goods Act. However, the Danish text is only an aid to understanding the Convention, as it has only six authentic languages that constitute the only authentic texts of the Convention, see the postamble to the CISG. See also the Danish text of the CISG.

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