International Sales of Goods: The CISG, Incoterms, and the Contract You Did Not Know You Signed

Document type: Article Practice area: Commercial — International Trade Jurisdiction: United States and international Last reviewed: 5 September 2026

The treaty that applies by default

A US manufacturer sells components to a German buyer. The purchase order says "governed by the laws of the State of Ohio." Both parties assume Article 2 of the Uniform Commercial Code governs.

It does not. The United Nations Convention on Contracts for the International Sale of Goods — the CISG — is a treaty ratified by the United States, Germany, and roughly ninety other countries. As a treaty it is federal law and, under the Supremacy Clause, part of the law of Ohio. A choice of Ohio law selects the CISG, because the CISG is the law of Ohio for a contract within its scope.

This surprises people, including lawyers, and it changes outcomes.

When the CISG applies

The Convention applies to contracts for the sale of goods between parties whose places of business are in different States, when:

• Both States are Contracting States; or
• The rules of private international law lead to the application of the law of a Contracting State.

The parties' nationality is irrelevant. What matters is the place of business, and where a party has more than one, the one with the closest relationship to the contract and its performance.

When it does not

Excluded sales:

• Goods bought for personal, family, or household use, unless the seller neither knew nor ought to have known of that purpose
• Sales by auction or on execution or otherwise by authority of law
• Stocks, shares, investment securities, negotiable instruments, and money
• Ships, vessels, hovercraft, and aircraft
• Electricity

Excluded subject matter, within a covered sale:

• The validity of the contract or of any of its provisions, or of any usage — so questions of capacity, illegality, unconscionability, and fraud remain matters of domestic law
• The effect the contract may have on the property in the goods — title passing is domestic law
• Liability for death or personal injury caused by the goods to any person

Mixed contracts: the Convention does not apply where the preponderant part of the seller's obligations consists of the supply of labour or other services, nor where the buyer supplies a substantial part of the materials necessary for manufacture.

How the CISG differs from Article 2

These are the differences that change results, and they are the reason a lawyer must know which body of law applies before advising on a dispute.

No writing requirement

The CISG provides that a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.

There is no statute of frauds. An oral agreement to sell $4 million of goods is enforceable.

The reservation. A Contracting State whose legislation requires contracts of sale to be in writing may declare a reservation preserving that requirement, and some States have done so. The analysis therefore requires checking whether either party's State has made the declaration.

No parol evidence rule

The CISG directs that statements and conduct are interpreted according to a party's intent where the other party knew or could not have been unaware of it, and otherwise according to the understanding of a reasonable person. In determining intent, due consideration is given to all relevant circumstances, including negotiations, practices established between the parties, usages, and subsequent conduct.

The leading US authority is MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova d'Agostino, S.p.A., 144 F.3d 1384 (11th Cir. 1998). The buyer signed a pre-printed Italian form containing terms it had not read and did not understand, and offered evidence that the parties had orally agreed different terms. Under the parol evidence rule that evidence would be excluded. The Eleventh Circuit held that the CISG does not incorporate the parol evidence rule, and that evidence of the parties' subjective intent was admissible.

The practical consequence is large. An integration clause does not have the effect a US lawyer expects. Negotiations, prior drafts, and oral statements are admissible to show intent. The email exchange that a domestic lawyer would consider superseded by the signed agreement is evidence.

A different mirror image rule

The CISG's approach to acceptance with variations sits between the common law's mirror image rule and the UCC's Section 2-207.

A reply purporting to be an acceptance but containing additional or different terms which do not materially alter the offer is an acceptance, unless the offeror objects without undue delay. The terms of the contract are those of the offer with the modifications contained in the acceptance.

But additional or different terms relating to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other, or the settlement of disputes are considered to materially alter the offer. A reply containing those is a counter-offer.

The consequence for the battle of the forms. Because arbitration clauses, forum selection clauses, warranty disclaimers, and limitations of liability are all "material," a purchase order and an acknowledgment containing different such terms do not form a contract on the CISG's acceptance rule. The contract forms, if at all, by performance — and the terms are those of the last document sent before performance, under the "last shot" analysis that the CISG's rules tend to produce.

This is close to the common law and materially different from the UCC's knockout approach.

Chateau des Charmes Wines Ltd. v. Sabaté USA Inc., 328 F.3d 528 (9th Cir. 2003) illustrates the point: forum selection clauses printed on invoices sent after the parties had agreed the sales by telephone were not part of the contract, because they were material additions to which the buyer never assented. Terms on an invoice sent after agreement do not become part of the contract merely because the buyer paid it.

Fundamental breach and avoidance

Under the UCC, a buyer may reject goods that fail in any respect to conform — the perfect tender rule, subject to cure.

The CISG has no perfect tender rule. A buyer may declare the contract avoided only if the seller's failure amounts to a fundamental breach, defined as a breach that results in such detriment to the other party as substantially to deprive it of what it is entitled to expect under the contract, unless the breaching party did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen that result.

This is a high standard. Goods with a defect that can be repaired, or that can be sold at a discount, frequently do not justify avoidance. The buyer's remedy is damages, price reduction, or a demand for repair or substitute goods.

The Nachfrist notice — borrowed from German law — provides a route to avoidance without proving fundamental breach: the buyer may fix an additional period of reasonable length for performance, and if the seller does not deliver within it, the buyer may avoid. This is the practical mechanism, and a buyer that wants out should use it rather than litigating whether a breach was fundamental.

Avoidance requires notice, and the right is lost if not exercised within a reasonable time.

Notice of non-conformity

The buyer must examine the goods within as short a period as is practicable and must give notice to the seller specifying the nature of the lack of conformity within a reasonable time after it discovered or ought to have discovered it. In any event, the buyer loses the right to rely on a lack of conformity if it does not give notice within two years of actual handing over, unless the period is inconsistent with a contractual guarantee.

This provision defeats more claims than any other in the Convention. Buyers who discover a defect, negotiate informally for months, and then assert a claim find the notice requirement raised — and courts applying the CISG have been demanding about specificity and timeliness. A notice that says "the goods have problems" is not a notice specifying the nature of the lack of conformity.

Damages

Damages consist of the loss, including loss of profit, suffered as a consequence of the breach, limited to the loss the breaching party foresaw or ought to have foreseen at the time of conclusion of the contract, in the light of the facts of which it then knew or ought to have known.

Full compensation is the principle, and consequential and lost profit damages are recoverable subject to foreseeability. Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024 (2d Cir. 1995) — the first US appellate decision applying the Convention — awarded the buyer lost profits on sales it could not make because the compressors delivered did not conform, applying the CISG's foreseeability standard rather than domestic rules.

But not attorneys' fees. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 F.3d 385 (7th Cir. 2002) held that "loss" under the Convention does not include attorneys' fees, which are a matter of procedural law governed by the forum's rules. The American rule therefore applies in a US forum, and a party wanting fee recovery must contract for it.

Mitigation is required, and a failure to mitigate reduces damages by the amount of the loss that should have been mitigated.

Interest

The Convention provides that a party is entitled to interest on any sum in arrears, without specifying a rate. That gap has generated substantial disagreement, with courts variously applying the rate at the creditor's place of business, the debtor's, the currency of payment, or a rate under domestic law. Specify the rate in the contract; it is the easiest gap to close and the most reliably litigated.

Price reduction

A remedy unfamiliar to US lawyers: where goods do not conform, the buyer may reduce the price in the same proportion as the value the delivered goods had at the time of delivery bears to the value conforming goods would have had. This is available whether or not the price has been paid, and it operates independently of damages. It is frequently the buyer's most useful remedy for a shipment that is usable but worth less.

Opting out

The Convention permits the parties to exclude its application or, subject to the writing reservation, derogate from or vary any of its provisions.

How to do it properly:

This Agreement shall be governed by the laws of the State of [__], excluding its conflict of laws principles and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods.

How not to do it:

• "Governed by the laws of the State of New York." Does not exclude the CISG; it selects it, because the Convention is part of New York law for a contract within its scope.
• "Governed by the Uniform Commercial Code." Ambiguous; courts have divided on whether selecting the UCC impliedly excludes the Convention. Do not rely on it.
• Silence. The Convention applies.

Should you opt out? Not automatically. The CISG has genuine advantages: it is neutral between the parties, it is available in multiple authentic languages, it is familiar to counterparties worldwide, and its substantive rules — no writing requirement, a flexible interpretive approach, a fundamental breach standard that discourages pretextual rejection — are not obviously worse than Article 2's.

Reasons to opt out: the parol evidence issue, where a party is relying on an integrated writing; the absence of a perfect tender rule, where a buyer wants strict conformity rights; the interest gap; the absence of a fee-shifting mechanism; and, most practically, that the parties' counsel understand Article 2 and do not understand the Convention.

Reasons to keep it: neutrality in a cross-border negotiation where neither side will accept the other's domestic law; predictability across a portfolio of international contracts; and the fact that a party's own counsel in the counterparty's jurisdiction will be more comfortable with it than with Ohio law.

The unacceptable answer is to leave it unaddressed because nobody considered it. Every cross-border sale of goods contract should state expressly whether the Convention applies.

Incoterms

Where the CISG governs the contract's substance, Incoterms govern the delivery mechanics — and they are not law. They are standardized trade terms published by the International Chamber of Commerce, incorporated by reference, that allocate between seller and buyer:

• Who arranges and pays for carriage
• Who arranges and pays for insurance
• Where risk of loss passes
• Who handles export and import clearance and pays duties
• Which documents each must provide

The current framework

The rules divide into two families.

Rules for any mode of transport:

Rules for sea and inland waterway transport only:

The errors that recur

1. Using FOB for containerized goods. FOB is a maritime term whose delivery point is the ship's rail. Containerized cargo is handed to a carrier at a terminal, days before loading, and the seller has no control over it in the interim. Using FOB means risk stays with the seller while the container sits at a terminal it cannot access. The correct term is FCA.

This is probably the single most common error in international sales documentation, and it persists because "FOB" is familiar from domestic practice — where, confusingly, the UCC's FOB has a different meaning.

2. Confusing the cost split with the risk split. Under CPT, CIP, CFR, and CIF, the seller pays freight to the destination but risk passes at origin. Goods lost in transit are the buyer's loss even though the seller arranged and paid for the carriage. Parties routinely assume that whoever pays the freight bears the risk. They do not.

3. Not naming the place precisely. "FCA Rotterdam" is ambiguous — which terminal, which address? The delivery point determines where risk passes and who bears loading costs. Name the place with as much precision as possible.

4. Using DDP without understanding it. DDP puts the seller on the hook for import clearance and duties in the buyer's country, which frequently requires a local presence or registration the seller does not have, and exposes it to tax obligations. Sellers should resist DDP unless they have the local capability.

5. Using EXW for an export sale. EXW puts export clearance on the buyer, who may not be able to act as exporter of record in the seller's country. FCA seller's premises achieves the same commercial result with the seller handling export.

6. Not specifying the version. Incoterms are revised periodically and the rules change. Cite the version: "Incoterms® 2020" or as applicable.

7. Assuming Incoterms cover more than they do. They do not address: transfer of title; price or payment terms; breach and remedies; governing law; dispute resolution; or force majeure. They allocate delivery, risk, cost, and customs — nothing else. A contract consisting of a price and an Incoterm is missing most of a contract.

Incoterms and the CISG together

The CISG provides default rules on risk of loss, and Incoterms displace them. Where the contract says "CIF Hamburg, Incoterms 2020," risk passes when the goods are on board, and the Convention's default rules do not apply to that question.

The Convention supports this: the parties are bound by usages to which they have agreed and by practices established between themselves, and — importantly — by any usage of which they knew or ought to have known and which is widely known to, and regularly observed by, parties to contracts of the type involved in the trade concerned. Incoterms are the paradigm of such a usage.

Documents and payment

International sales run on documents, and the documents interact with the delivery terms.

The bill of lading is a receipt for the goods, evidence of the contract of carriage, and — if negotiable — a document of title whose transfer transfers constructive possession. Under CIF and CFR, the seller's obligation is to ship conforming goods and tender conforming documents; the buyer must pay against documents.

The letter of credit is the payment mechanism in a large share of cross-border sales. It is independent of the sale contract: the bank pays against documents that conform on their face, and disputes about the goods do not excuse payment. The consequence is that a buyer's protection is in the documentary requirements it specifies, not in the goods clause of the sale contract.

Inspection certificates, issued by an independent inspector at loading, are the buyer's practical protection under a documentary credit, and they should be a required document if the buyer wants any.

Carriage law limits recovery. Where goods are damaged in carriage, the carrier's liability is limited by the applicable convention or by contract, and the limits are low relative to cargo values. Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14 (2004) addresses the extension of carriage liability limitations through a chain of contracts to a downstream rail carrier, and illustrates the general point: the party bearing risk of loss under the Incoterm needs cargo insurance, because the carrier's liability will not cover the loss.

Formation in more detail

Because the battle of the forms is where the Convention most often surprises US counsel, the formation rules deserve a closer look.

The offer. A proposal is an offer if it is sufficiently definite and indicates an intention to be bound. It is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. A proposal to an indefinite group is an invitation to make offers unless the contrary is clearly indicated.

The open price question. The Convention contains an apparent tension: formation requires provision for determining the price, but another provision supplies a price — that generally charged at the time of conclusion for such goods sold in comparable circumstances — where a contract has been validly concluded without one. The resolution most courts reach is that a contract may be formed without a stated price where the parties clearly intended to be bound, with the gap filled.

Withdrawal and revocation. An offer may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer, even if irrevocable. An offer may be revoked before acceptance is dispatched, unless it indicates it is irrevocable or the offeree reasonably relied on it as irrevocable and acted accordingly. Note that this is not the common law rule — an offer stated to be irrevocable is irrevocable without consideration, and there is no need for an option contract.

Acceptance. A statement or conduct indicating assent. Silence or inactivity does not in itself amount to acceptance. Acceptance is effective when it reaches the offeror — the receipt rule, not the mailbox rule — which matters for timing disputes.

Acceptance by performance. Where, by virtue of the offer or of practices established between the parties or of usage, the offeree may indicate assent by performing an act — dispatching the goods or paying the price — the acceptance is effective at the moment the act is performed, provided it is within the time for acceptance.

Late acceptance. Effective if the offeror without delay informs the offeree that it is effective. And a late acceptance that would have arrived in time but for a transmission irregularity is effective unless the offeror without delay informs the offeree that it considers the offer to have lapsed.

Modification. A contract may be modified by the mere agreement of the parties — no consideration is required, which removes a familiar US problem. But a written contract containing a provision requiring modifications to be in writing may not be otherwise modified, subject to an estoppel where a party's conduct has been relied on.

The practical drafting responses:

• Do not rely on silence. Confirm acceptances expressly.
• Include a no-oral-modification clause — it is given effect under the Convention, unlike the position under some domestic laws.
• Reject non-conforming acknowledgments in writing, promptly. The Convention gives the offeror this right, and exercising it is the answer to the battle of the forms.
• Do not begin performance while terms are open, because performance is likely to be treated as acceptance of the last document sent.

A worked example: the battle of the forms

The parties. Hallgarten Werke, a German machine tool maker, and Perrin Industrial, an Illinois distributor.

The exchange.

• March 3. Perrin sends a purchase order for 40 machines at €18,000 each, delivery FCA Stuttgart, Incoterms 2020. The reverse contains Perrin's standard terms: Illinois law, exclusive jurisdiction in Cook County, a full warranty, and consequential damages recoverable.
• March 9. Hallgarten sends an order acknowledgment confirming quantity, price, and delivery. Its reverse contains German standard terms: German law, arbitration in Frankfurt, a warranty limited to repair or replacement, and consequential damages excluded.
• April–June. Hallgarten ships; Perrin pays.
• September. Twelve machines fail. Perrin claims €340,000 in lost production and customer credits.

Under the UCC, Section 2-207 would form a contract on the terms on which the writings agree, with the conflicting terms knocked out and gap-fillers supplied. Perrin would likely get consequential damages, because the exclusion would be knocked out.

Under the CISG, the analysis differs.

Step one: does the CISG apply? Germany and the United States are Contracting States; the parties' places of business are in different States; this is a sale of goods; nothing excludes it. Yes — and note that Perrin's "Illinois law" clause selects it rather than excluding it.

Step two: did the acknowledgment accept? No. It contained terms differing as to the extent of one party's liability and the settlement of disputes, both of which the Convention deems material. The acknowledgment was a counter-offer.

Step three: was the counter-offer accepted? Perrin did not object. It accepted delivery and paid. Under the Convention, acceptance may be by conduct indicating assent, and performance in these circumstances is generally treated as acceptance of the counter-offer.

Result: Hallgarten's terms govern. German law, arbitration in Frankfurt, warranty limited to repair or replacement, no consequential damages. Perrin's €340,000 claim is largely gone, and its claim will be heard by a tribunal in Frankfurt.

What Perrin's counsel should have done. Three things, any one of which would have changed the outcome:

1. Objected to the acknowledgment. The Convention gives the offeror the right to object to non-material variations; for material ones, the answer is simply to say no and negotiate.
2. Excluded the CISG in the purchase order, which would have brought Section 2-207's knockout rule into play.
3. Negotiated a single agreement. The battle of the forms is a problem for parties who do not negotiate, and a $720,000 order justifies a contract.

And a fourth, applicable to both. Perrin's September claim raises the notice question independently: did it examine the goods within as short a period as practicable and give notice specifying the nature of the non-conformity within a reasonable time? Machines that failed in September after delivery in June, with no notice until the claim, invite the argument that notice was late.

A worked example: the rejected shipment

The facts. Ottoline Fabrics, a Portuguese textile mill, sells 90,000 metres of coated fabric to Brandt Marine, a US boat builder, CIF Charleston, Incoterms 2020, for $1.14 million. On arrival, Brandt finds the coating thickness averages 0.42 mm against a specified 0.50 mm. The fabric is usable for some applications but not for the hull liners Brandt intended.

Brandt rejects the entire shipment and demands its money back.

The analysis under the CISG.

Is this a fundamental breach? The question is whether the non-conformity substantially deprives Brandt of what it was entitled to expect. Relevant: the fabric is usable, though not for Brandt's intended application; substitute material is available but on a lead time; and Ottoline offered to supply conforming fabric within six weeks. On these facts, avoidance is doubtful. Courts applying the Convention have been reluctant to find fundamental breach where the goods can be used or resold, particularly where the seller offers cure.

What Brandt should have done. Fix an additional period of reasonable length — a Nachfrist notice — for delivery of conforming goods. "You have thirty days to deliver conforming fabric; if you do not, we will avoid the contract." If Ottoline fails, Brandt may avoid without litigating fundamental breach.

What Brandt can do now.

• Price reduction. Reduce the price in the proportion that the value of the delivered fabric at delivery bears to the value of conforming fabric. If the delivered fabric is worth 70% of conforming fabric, Brandt pays $798,000. This is the remedy that fits the facts, and it does not require proving fundamental breach.
• Damages for its additional costs, subject to foreseeability and mitigation.
• Demand for substitute goods, available only if the non-conformity is a fundamental breach — so probably not here.
• Demand for repair, available if reasonable in the circumstances.

The risk of loss point. Under CIF, risk passed when the goods crossed the ship's rail in Lisbon. If the fabric had been damaged in transit, that would be Brandt's loss, notwithstanding that Ottoline arranged and paid for the carriage and the insurance. Brandt's protection is the CIF insurance policy, which Ottoline must procure for Brandt's benefit — and Brandt should confirm it covers the actual value and the actual risks, because CIF requires only minimum cover unless the parties agree more.

The notice point again. Brandt must give notice specifying the nature of the non-conformity within a reasonable time. "The fabric is defective" is not sufficient. The notice should state the measured coating thickness, the specification, the method of measurement, the affected quantity, and the intended use it defeats.

Practice notes

For every cross-border sale of goods contract:

• State expressly whether the CISG applies. Silence selects it; a domestic choice of law clause does not exclude it.
• If excluding, use the full formula: the law of a named State, excluding conflict of laws principles, and expressly excluding the CISG.
• Specify an interest rate. The Convention's gap is the most reliably litigated provision in it.
• Specify the Incoterm and its version, and name the place precisely.
• Use FCA, not FOB, for containerized goods.
• Address what Incoterms do not: title, payment, warranties, remedies, limitation of liability, governing law, dispute resolution, force majeure.
• Include a fee-shifting clause if fee recovery matters; the Convention does not provide it.
• Address notice of non-conformity expressly — the period, the required content, and the consequence of failure — rather than relying on the Convention's standard.

For a party in a dispute:

• Determine which law governs before anything else. The advice differs materially.
• If the CISG governs, check the notice timing immediately. It defeats more claims than any substantive rule.
• Consider the Nachfrist route before litigating fundamental breach.
• Consider price reduction, which US lawyers routinely overlook and which often fits the facts better than damages.
• Remember that negotiations and prior drafts are admissible. The integration clause does not do what you expect, and the counterparty's file may contain helpful material.

The seller's remedies

Practitioners focus on the buyer's remedies, and the Convention's provisions for the seller are equally distinctive.

Requiring performance. The seller may require the buyer to pay the price, take delivery, or perform its other obligations. This is a right to specific performance, and it reflects the civil law tradition. The practical limit: a court is not bound to enter a judgment for specific performance unless it would do so under its own law in respect of similar contracts not governed by the Convention. In a US forum, that means the usual equitable constraints apply.

Fixing an additional period. The seller may fix a Nachfrist period for the buyer to perform, and may avoid if the buyer does not pay or take delivery within it.

Avoidance. Available for fundamental breach, or after a Nachfrist period expires. The seller loses the right to avoid after the buyer has paid the price, unless the seller acts within stated periods relating to late performance or other breaches.

Specifying goods. Where the buyer is to specify the form, measurement, or other features of the goods and fails to do so, the seller may make the specification itself in accordance with the buyer's known requirements, on notice, and it becomes binding if the buyer does not respond.

Damages on the same principles as the buyer's: loss including lost profit, limited by foreseeability, reduced by failure to mitigate.

Substitute transaction and market price. Where the contract is avoided and the seller has resold in a reasonable manner within a reasonable time, damages are the difference between the contract price and the resale price plus further damages. Where there has been no resale but there is a current price, damages are the difference between the contract price and the current price at the time of avoidance.

Preservation of the goods. A seller in possession after the buyer's delay must take reasonable steps to preserve them, at the buyer's expense, and may sell them if the buyer delays unreasonably in taking delivery or paying — with notice, and accounting for the proceeds. Where the goods are perishable or preservation would be unreasonably expensive, the seller must take reasonable measures to sell them.

The provision worth knowing. A party intending to sell preserved goods must give reasonable notice of the intention. Sellers holding goods a buyer will not take should document the notice, because the resale price will become the damages measure and the buyer will attack the process.

Excuse and anticipatory breach

Excuse. A party is not liable for a failure to perform if it proves the failure was due to an impediment beyond its control that it could not reasonably have been expected to have taken into account at the time of conclusion, or to have avoided or overcome.

Three features distinguish this from domestic doctrines:

• It excuses damages only. The other party retains every other remedy, including avoidance, price reduction, and requiring performance. This is a significant difference from the common law, where frustration or impracticability discharges the contract.
• It applies to a third party's failure only where the third party would itself be excused on the same test — so a seller whose supplier fails is not excused unless the supplier's failure meets the standard.
• Notice is required. The party must give notice of the impediment and its effect within a reasonable time, and is liable for damages resulting from the other party's non-receipt.

Temporary impediments excuse only for the period of the impediment.

Anticipatory breach and suspension. A party may suspend performance if it becomes apparent after conclusion that the other will not perform a substantial part, because of a serious deficiency in its ability to perform or its creditworthiness, or its conduct in preparing to perform. A party suspending must immediately give notice and must continue performing if the other provides adequate assurance.

Avoidance for anticipatory breach is available if it is clear before the date for performance that a party will commit a fundamental breach. The avoiding party must give reasonable notice if time allows, unless the other has declared it will not perform.

Installment contracts. Where a failure with respect to one installment is a fundamental breach as to that installment, the other may avoid as to that installment. Where it gives good grounds to conclude that a fundamental breach will occur with respect to future installments, the other may avoid for the future, within a reasonable time. And where installments are interdependent, avoidance may extend to installments already delivered or yet to come.

The drafting response. Because the Convention's excuse provision is narrower than most parties expect — and because it does not discharge the contract — cross-border sale contracts should contain an express force majeure clause stating what events excuse performance, what notice is required, what happens during the event, and when either party may terminate. Relying on the Convention's provision is relying on a rule that excuses damages and leaves the counterparty free to avoid.

Related documents

• Contracting for a cross-border sale of goods: a practical guide
• International sale of goods contract checklist
• Cross-border sales toolkit: CISG opt-outs, Incoterms selection, and shipping documents
• The UCC Article 2 sale of goods: formation, warranties, risk of loss, and remedies
• Using letters of credit in commercial transactions
• Contract manufacturing and hardware supply agreements: tooling, capacity, quality, and exit