Prospects for the Unification of Sales Law at the
Regional or International Level:
A Scandinavian View
Jan Hellner *
I. Regional Unification: Scandinavian Legislation on Sales.
Around 1890 it became evident that the Swedish law of sales,
based mainly on the Swedish Code of 1734, was hopelessly outdated
and a proposal for a sales act was drafted and published in 1894.
In 1898 Professor Julius Lassen, a well-known Danish scholar, raised
the issue of making this draft the basis for a uniform Scandinavian
Sale of Goods Act. He pointed to the need for common Scandinavian
legislation within this important field and, while criticizing a number
of details, expressed the view that on the whole the draft would
serve well as a basis for common legislation. Shortly afterwards
commissions were appointed in Denmark, Norway and Sweden to
continue the work on sales law. This work culminated in 1903 and
1904 with the commissions presenting new drafts which, with few
unimportant changes, were enacted in the respective countries. The
Swedish statute dates from 1905, the Danish one from 1906, and
the Norwegian one from 1907. Discrepancies between the statutes
are slight and are mostly due to differences between the languages
or the drafting traditions of the countries concerned; there are very
few substantial points where the statutes differ.
The time chosen for this legislative work was fortunate; the
Scandinavian legislators could profit from the experience of the
German Civil Code (the Bilrgerliches Gesetzbuch) and the English
Sale of Goods Act. In addition, Scandinavian legal science was at a
peak at the time, and leading scholars –
among whom, besides
Julius Lassen, the Norwegian Fredrick Stang and the Swede Tore
Alm6n may be mentioned –
took part in the work.’
Altogether the Scandinavian Sale of Goods Act is generally con-
sidered to be a highly successful piece of legislation. One reason for
* Professor of Law, University of Stockholm. This paper was presented at the
Conference on Comparative Commercial Law held at McGill University, Sep-
tember 3-5, 1968.
1The general method of uniform legislation employed in Scandinavia is
described in Hellner, Unification of Law in Scandinavia, (1968-69), 16 Am. J.
Comp. L. 88.
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[Vol. 15
its success was that it was soon made the subject of a Swedish
commentary by Alm.n, which was studied in the other Scandinavian
countries. 2 An indication of the unifying influence of this commentary
can be found in the fact that Finland – which at the time of the
enactment of the statutes was not an independent country and there-
fore could not participate in the drafting of the uniform legislation –
has adopted the same principles as the other Scandinavian countries,
and it is often said that Finnish courts follow Alm6n’s commentary
as closely as Swedish courts.
The role of the Scandinavian Sale of Goods Act is somewhat
complex. None of the countries which have enacted it have any “code
of obligations” in the Continental European sense, and legislation on
leases of movable property, contracts for work, building contracts,
and similar contracts, is also deficient. Nor has case law the same
importance as in common law countries, and wherever possible the
courts follow by analogy existing statutes or even the legislative histo-
ry of such statutes.8 Alm6n, Lassen, Stang and other writers generally
treat the rules of the Sale of Goods Act as examples of general
principles, or at least as important solutions of general problems.
The influence of the Act is therefore felt in other branches of the law
as well, and any change made in this statute might affect these
branches, or at least make the position there more uncertain.
At the same time, the Act has the definite aim of providing law
that is acceptable to merchants. At all stages of the preparatory
work, the commissions cooperated with businessmen. The commentary
of Alm6n abounds in references to commercial practice. Most of the
rules apply both to commercial sales (where both parties are mer-
chants who contract in the course of their business) and other
sales; however, in commercial sales the duties of the parties are
sometimes stricter than in other sales. Even so, it has often been
said that the Act requires too much from parties that are not
accustomed to business routine, for example as regards giving notice
of defects in goods.
Formation of contracts is not dealt with in the Sale of Goods Act,
but rules on this subject are found in another uniform statute, the
Contracts Act, enacted between 1915-18,4 which applies to contracts in
general. Much of what can be said of the Sale of Goods Act is true
also of the Contracts Act.
2 0m K6p och Byte av Lis Egendom, 4th ed., R. Eklund ed., (1960).
3 See Hellner, “The -Sanction for Breach of Contract, Including Anticipatory
Breach, in Swedish Law” in Swedish National Reports to the VIIth International
Congress of Comparative Law, Upsala 1966, (1966), p. 23.
4 The Contracts Act was adopted by Finland in 1929.
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UNIFICATION OF SALES LAW
The importance of the Sale of Goods Act at the present time is
not easy to ascertain. In the first place, very few cases concerning
sales now go to the courts. When seller and buyer disagree they
will generally try to settle the dispute by negotiations. If the
negotiations are unsuccessful the issue will probably be referred
to arbitration. Private persons seldom can afford the present
costs of litigation. Further, it is constantly said by businessmen
that coming to a peaceful settlement with a customer, with
whom one deals continuously, is much more important than winning
a law suit. In the second place, the use of standard form contracts
is exceedingly widespread, and to a large extent these contracts
have replaced the rules of the Sale of Goods Act. It is not entirely
clear what kinds of goods the legislators originally had in mind
when they framed the rules, but it is easy to see that the examples
of Alm6n generally refer either to commodities and other goods
that are sold in large quantities, or to that old favourite, the
horse. At present, contracts for the sale of machinery and engineering
equipment are considered to require special attention with regard
to legal regulation; for them great parts of the Sale of Goods Act
are not suitable. 5
On the other hand, the Sale of Goods Act retains its old position
as an important source of influence in the general field of contract
law, and it plays a major part in legal teaching in all the Scan-
dinavian countries. If it is true that taught law is tough law, then
the prospects of the Scandinavian Sale of Goods Act are excellent for
a long time to come.
The unification of sales law in Scandinavia thus works success-
fully, reflecting both the close economic cooperation between the
Scandinavian countries and their common legal tradition. The atti-
tude of these countries towards a proposal of giving up their regional
unification for a wider system of unification would therefore be as
hesitant as their attitude towards a proposal to exchange their basic
principles of contract law for a body of international rules.
The success of the common Scandinavian legislation on sales does
not raise any obstacle towards plans for a reformation of this legis-
lation, to be undertaken jointly and with the aim of maintaining the
unity already gained. As mentioned before, Finland has not adopted
the uniform Scandinavian Act, but it has need for the codification
5 General conditions for the sale of engineering goods, which -are mainly based on
the Commentary of the General Conditions for the Supply of Plant and Machinery
for Export Prepared under the Auspices of the United Nations Economic Com-
mission for Europe, (1956), U.N. Doc. E/ECE/220 (E/ECE/M/WP. 5/16).
McGILL LAW JOURNAL
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of its sales law. Finland, naturally, is not willing to enact a statute
which contains word for word a text that was produced at the
beginning of this century. National commissions, cooperating with
each other, have therefore been set up in Denmark, Finland, Norway
and Sweden for the purpose of preparing a revision of the Scan-
dinavian Sale of Goods Acts. 6 The aim of the revision is limited.
The basic principles and concepts are to remain unchanged; only on
special points, where the present law appears unsatisfactory, are
reforms to be undertaken. Two special aims have been set for the
reform: to provide better protection for the consumer; and, to bring
the law closer to the Uniform Law on the International Sale of Goods.
The latter aim can be justified by several arguments. If the Scan-
dinavian countries are to adopt the Uniform Law, it is obviously
desirable that the law for domestic sales and the law for international
sales agree as far as possible. But even if they do not, the Scan-
dinavian countries should profit from the experience gained in
the Uniform Law and, where suitable, make use of the solutions
found there.7
It is uncertain when any result can be expected from the work
on the revision of the Scandinavian Sale of Goods Act, but the
earliest time by which any final draft can be produced is towards
the end of 1969.
II. International Unification of Sales Law.
The work on the Uniform Law on the International Sale of Goods
began during the latter part of the 1920’s when Ernst Rabel made
the first preparations.8 An international commission was appointed
in 1930 which delivered its first draft in 1935. The work continued,
with interruption only for the Second World War, in drafts published
in 1939, 1956 and 1963. Each draft was submitted to the Govern-
ments interested or, in the case of the 1939 draft, to an international
conference. Finally, in 1964 the Convention relating to a Uniform
Law on the International Sale of Goods was produced by a Diplomatic
Conference working at the Hague.
6 The writer is one of those charged with the task of preparing the revision
in Sweden.
7For a German discussion in the same vein, see Weitnauer, H., “‘Vertragsauf-
hebung und Schadensersatz nach dem Einheitlichen Kaufgesetz und nach
Geltendem Deutschem Recht?’ in Rechtsvergleichung und Rechtsvereinheitlichung,
(1967), p. 71.
8See Rapport sur le droit comparg en matiare de vente par l’Institut fiur
Ausldndisches und Internationales Privatrecht, (Rome, 1.929), reprinted in Rabel,
Gesammelte Aufsdtze, vol. 3, (1967), p. 381.
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UNIFICATION OF SALES LAW
For a long time, the real leader of the work was Rubel, who
devoted much of his enormous capacity towards this important task
of unification.9 Among those who took continuous part in the work
was a Swede, Judge Algot Bagge (who is probably the only person
to have participated during the whole period from 1930 to 1964).
Other Scandinavians also cooperated during shorter periods.
Rabel was familiar with the Scandinavian Sale of Goods Acts,
and in his great comparative work there are numerous references
to Alm6in’s commentary in a German translation. 0 On some points
Scandinavian law has provided the model for the Uniform Law, as
can be seen from the reports accompanying the various drafts. On
other points there is similarity between the Scandinavian Act and
the Uniform Law due to a common influence. Altogether, the structure
and main principles of the Uniform Law make it particularly easy
for Scandinavians to understand the Law. The concept of “delivery
of the goods”, which occupies a central position in the rules regarding
the seller’s obligations, corresponds on the whole to a similar concept
in Scandinavian law, although there are some differences.1 The
remedy which, in the English text, is styled “avoidance”, like the
corresponding remedy in Scandinavian law, is independent of any
right to claim damages. The right to have a contract avoided im-
mediately upon the breach of the other party (i.e. without first
having set a Nachfrist) presupposes that the breach is “fundamental”,
and on this point too there is essential similarity to Scandinavian law.
Another instance where the Scandinavians find the system of the
Uniform Law similar to their own law is that the passing of the
risk is governed without any reference to the passing of property
in the goods.
The Scandinavians have thus had special reason to regard the
various drafts of the Uniform Law in a favourable light, and on
numerous occasions they have expressed their desire that such a law
should come into force. It has always been presupposed that two
conditions would then apply: that the law should be limited to
international sales and have no application to domestic sales; and,
that efforts at regional unification, such as the one existing between
the Scandinavian states, should be respected. These conditions are
‘ See in particular: Rabel, Das Recht des Warenskaufs, vol. 1,
(1936, repr.
1957), vol. 2, (1958) and numerous essays reprinted Rabel, op. cit., supra, n. 8.
‘OAlm~n, Das Skandinavische Kaufrecht, vols. 1 & 2, tr. Neubecker, (Heidel-
berg, 1922).
11To Americans, on the contrary, the Uniform Law’s concept of “delivery”
gives particular trouble; see Honnold, A Uniform Law for International Sales,
(1958-59), 107 U. Pa. L. R., 299, at pp. 317, 824.
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fulfilled by the provisions of the Uniform Law and the International
Convention. 12
After the completion of the Uniform Law at the Hague Confer-
ence, it was submitted to various business organizations
in the
Scandinavian countries, these organizations being invited to express
their opinion on the desirability of adopting the Law. In Denmark,
Finland and Norway the organizations mainly confined themselves
to expressing their favourable attitude towards the prospect of
reaching unification in the law of international sales. These countries
suggested that the adoption of the Law should depend mainly on
the reaction of the countries which constitute the main business
partners of Scandinavia. In Sweden, on the other hand, the business
organizations appointed a special committee, which scrutinized the
Law in detail and returned an unfavourable verdict, 13 In the opinion
of the committee, Sweden should not adopt the Law under present
circumstances. If the situation were to change –
if other countries
with which Sweden has important business relations were to enact
it –
the question of adoption should be taken up again for further
consideration. The criticism of the Swedish committee is based on
a number of interrelated reasons. One is that the Uniform Law
contains some unfortunate rules, the consequences of which cannot
be avoided through suitable contract clauses without great difficulties.
Another is that too many important problems remain virtually un-
solved and that the influence of the Law cannot be predicted when
such problems arise in practice.
Recently the question of unification of sales law by legislation
has been brought up before another forum. The United Nations
has set up the United Nations Commission on International Trade
Law (UNCITRAL), which is specially concerned with the problems
of the underdeveloped countries. One of the two priority subjects
chosen by the Commission is the international sale of goods.’ 4 It is far
too early to form any opinion on what the Commission can do in
this field, but of course its work deserves close attention. On the
initiative of the Commission, a questionnaire has been distributed
12 See also the definition of an international sale in Art. 1 of the Law and
the reservation permitted by Art. 2 of the Convention.
13 The opinion of the committee is expressed in a memorandum dated March 7,
1967 (mimeo.). The basis for the work of the committee was a memorandum
on the Law written for the Swedish Ministry of Justice by the present writer:
P.M. angaende ett vid 1964 ars k6plagskonferens i Haag upprfittat frslag till
enhetlig lag om internationella k6p av 16sa saker, (mimeo. 1966).
14 See U.N. Comm. on Int. Trade Law, Methods of Work for Priority Topics,
(1968), U.N. Doc. A/CN.9/9.
No. 1]
UNIFICATION OF SALES LAW
among the member states and specialised agencies of the United
Nations. States are invited to indicate whether or not they intend
to adhere to the 1964 Hague Conventions and state the reason for
their position. The answers to the questionnaire are not yet known.
HI. Attitudes Toward International Legislation.
From the Scandinavian point of view ‘5 the question of adopting
the Uniform Law on the International Sale of Goods, or any other
similar statute, raises several problems which must be considered
separately. 16
The first question is whether unification on an international
scale brings any advantages which are worth seeking. To this question
the answer is undoubtedly in the affirmative. No hesitation on this
point has been expressed in Scandinavia.
When we ask how widespread international unification must be
to be worthwhile, we face greater difficulties. The regional unifi-
cation achieved by the present Sale of Goods Acts will, because of
the importance of the trade within Scandinavia, make international
unification somewhat less important. Practically speaking, unless
the Common Market countries adopt the Uniform Law on the Inter-
national Sale of Goods, it is unlikely that many Scandinavians will
think it worthwhile to adopt this law. But is this enough? What
about Great Britain and the United States? What about other
countries ? Great Britain has ratified the Hague Convention of 1964
but with the very important reservation allowed by Article V of
the Convention. A state which has made this reservation will apply
the Uniform Law only to those contracts in which the parties have
chosen the Law as the law governing the contract. From the practical
point of view, ratification with this reservation will not at present
be considered an important step toward ensuring that the Law will
apply to business relations between Great Britain and other countries.
But of course the situation may change. The position of the Common-
wealth countries is not known. They were not represented at the
Hague Conference and therefore have had less reason than others
to consider the adoption of the Uniform Law.
The United States is the great question-mark. The Swedish
Export Association, when giving its opinion on the desirability of
15 The Scandinavian point of view is taken here as the only one familiar
to the writer but which is probably in many regards that of other countries.
16 The opinions expressed here are of course entirely the writer’s own and
represent neither the official Swedish attitude nor that of the Swedish business
organizations.
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adopting the Uniform Law, stated expressly that any uniform law
that is to be of sufficient value to Swedish exporters must be
acceptable to the United States. 17 It is not clear whether others will
go so far, but certainly the attitude of the United States is considered
by all to be of the greatest importance. But what will the United
States do? Thus far, there have been few signs that the United
States will adopt the Uniform Law.5
Another important question is how far a uniform law must agree
with the domestic law in order to be acceptable. For reasons already
stated, no great problems arise in this respect in Scandinavia regard-
ing the statute under discussion. On some key points there is close
agreement between the two Acts, and work on revising the Scandi-
navian Sales Acts with the aim of profiting from the experience laid
down in the Uniform Law is already in progress. The importance of
this kind of agreement should, on the other hand, not be exaggerated.
It is not likely that any uniform statute that is acceptable from other
points of view would fail in this respect. Anyone taking part in inter-
national trade must submit to the principles governing such trade.
On most important points either the individual contract, a standard
contract, or the customs of the trade, will decide the issues, and the
role of a statute is therefore limited. Generally speaking a uniform
law is much closer to the domestic law of the adopting country
than are the laws of those countries which, according to the principles
of private international law, might apply to a particular contract.
Turning next to the question whether the Uniform Law deals with
the subjects that are most important for international trade, we must
look at the substance of the provisions of the Law.19 Undoubtedly,
17Letter from the Swedish Export Association to the Swedish Government,
dated March 21, 1067.
18 See in particular, Honnold, The Uniform Law for the International Sale
of Goods: The Hague Convention of 1964, (1965), 30 Law & Contemp. Prob.
326; Berman, The Uniform Law on International Sale of Goods: A Constructive
Critique, ibid., 354; Farnsworth, Some Basic Differences Between the American
Law of Sales and the Draft Uniform Law on the International Sale of Goods,
(1965-66), 14 Am. J. Comp. L. 227; Farnsworth, Book Review,
66
Mich. L.R. 583; Nadelmann, “A plea for Coordination of Movements for the
Unification of Law”
in Akrothinia Petros G. Vallindas, (1966), p. 157. A
slightly more favourable view is taken by Daw, Some Comments from the
Practitioner’s Point of View, (1965-66), 14 Am. J. Comp. L. 242.
(1968),
19An earlier draft (which in this respect did not differ from the final Law)
was criticized by Kahn, La vente commerciale internationale, (1961), at p. 31,
who found that the text was not modern enough and had
