The Vienna Convention of 11 April 1980 applies of its own force to sales of goods between businesses established in two different States, without needing to be stipulated, and it now counts ninety-seven Contracting States. The most widespread error is to believe that a clause designating French law excludes it: the clause produces the opposite effect, because the Convention is precisely the French law of the international sale of goods.
A Bordeaux wine merchant sells to an importer established in Hong Kong. The one-page contract states that the parties submit to French law and to the courts of Bordeaux. A dispute arises over the quality of several lots. Before the court, each side argues Articles 1641 and following of the Civil Code on latent defects, and the discussion bogs down on the short time limit. But that is not the law which applies, and the reasoning to be applied to time limits is nothing like it.
The Convention is the French law of international sale
The Convention was published in France by Decree No 87-1034 of 22 December 1987 and has been in force since 1 January 1988. The Court of Cassation drew the consequence, holding that it constitutes the French law of international sale (Cass. 1st Civ., 26 June 2001, No 99-14.844). It is therefore not a foreign body of rules that one chooses, but the ordinary law applicable as soon as its conditions are met.
One practical consequence, which many contracts overlook, follows: a clause designating French law designates the Convention. The Commercial Chamber quashed a judgment that had inferred a tacit exclusion from such a clause and from the fact that the parties had argued the Civil Code, holding that the party had not placed the resolution of its dispute under the regime of French domestic sales law but under that of French substantive law, of which the Convention forms part. Drafting a clause that says French law and expecting the Civil Code is therefore a drafting error, not a choice.
The two routes to application, and the difference between them
Article 1 opens two routes. Under subparagraph (a), the Convention applies where both parties have their places of business in different Contracting States: application is then direct, with no conflict of laws reasoning at all. Under subparagraph (b), it applies where the rules of private international law lead to the law of a Contracting State, which on the contrary requires that reasoning to be carried out first.
The distinction is not theoretical. In the first configuration, arguing about the applicable law is a waste of time: the Convention governs exclusively, as the Court of Cassation recalled in quashing a judgment which, having found the exemption of its Article 79 established, fell back on liability for defective products (Cass. 1st Civ., 17 May 2023, No 22-16.290). In the second, the conflict rule of the forum must be identified, and before a French court that is not the Rome I Regulation but the Hague Convention of 15 June 1955, which Article 25 of Rome I leaves in force.
What the Convention does not govern
Article 4 states that it governs exclusively the formation of the contract and the rights and obligations it creates between seller and buyer, and that it is not concerned with the validity of the contract or of any of its provisions, nor with the effect the contract may have on the property in the goods. Article 5 excludes the seller’s liability for death or personal injury. Article 2 further excludes consumer sales, sales by auction, on execution, of securities, of ships and aircraft, and of electricity.
Outside the scope, and therefore governed by the law designated by the conflict rule, remain limitation, retention of title, capacity and defects of consent. The limitation point is settled: the Court of Cassation holds that the provisions of the Convention lay down no period of limitation or foreclosure (Cass. Com., 26 October 2022, No 20-22.528). Article 78 finally gives a right to interest without fixing the rate, which must be determined elsewhere.
The notice periods, routinely confused with a period for suing
Article 38 requires the buyer to examine the goods within as short a period as is practicable in the circumstances. Article 39 deprives him of the right to rely on a lack of conformity if he does not give notice specifying its nature within a reasonable time after he discovered it or ought to have discovered it, and in any event not later than two years from the date on which the goods were actually handed over.
That two-year period is not a period for bringing an action. The Court of Cassation so held in express terms, observing that it is a period for giving notice of the lack of conformity and not a period for claiming compensation for any loss (Cass. Com., 21 June 2016, No 14-25.359), and confirmed the point in 2022. Article 40 moreover disapplies Articles 38 and 39 where the seller knew of the defect and did not disclose it, a solution the Commercial Chamber applied notably in holding that the buyer is then relieved of any notice requirement (Cass. Com., 1 April 2026, No 24-17.785).
The remedies, more flexible than those of domestic law
The Convention builds a gradation around the fundamental breach of Article 25, defined as one which substantially deprives the creditor of what he was entitled to expect under the contract. Avoidance under Articles 49 and 64 operates by simple declaration, without any intervention by a court, which is a considerable advantage in an international context. Article 47 allows an additional period to be fixed, whose expiry opens avoidance without having to establish a fundamental breach.
Article 50 opens a proportionate reduction of the price, an autonomous remedy independent of any fault, and therefore useful where the exemption of Article 79 bars damages. Article 74 finally caps compensation at what the party in breach foresaw or ought to have foreseen at the time of conclusion, without the exception French law reserves for fraud. For a seller, that objective foreseeability is often more protective than Article 1231-3 of the Civil Code.
How to exclude it, when exclusion is really wanted
Article 6 allows the parties to exclude the application of the Convention, to derogate from any of its provisions or to vary their effect. It still has to be done properly. An effective clause names the Convention by its title and date, states clearly that it is excluded in its entirety including for the formation of the contract, and designates the replacement law, failing which the sale falls back on the law designated by the Hague Convention of 1955, which is not necessarily the one the parties assume.
Tacit exclusion is theoretically admitted, but it should never be relied on. The Court of Cassation has not endorsed an exclusion inferred from the mere fact that the parties argued domestic law, and its case law since 2011 points the other way. A contract which simply designates French law, and nothing more, excludes nothing at all.
Should it really be excluded?
In the majority of sales of goods between businesses, exclusion is a badly founded reflex. The Convention offers a single regime of non-conformity which makes the French litigation about characterisation between latent defect and failure to deliver disappear, avoidance out of court, a built-in cap on liability, and an accessible body of international case law. It is moreover exclusive within its scope, which closes off competing domestic law causes of action to the seller’s benefit.
Exclusion is justified in identifiable cases: contracts with a substantial service component, where the characterisation under Article 3 becomes uncertain; commodity sales governed by professional standard forms built on English law, whose near-automatic right of rejection sits badly with the fundamental breach filter; and contractual chains whose other links are subject to a law that ignores the Convention. Outside those situations, excluding it usually means trading a coherent and predictable regime for a domestic one that was not designed for cross-border sales.
What the firm does
The firm reviews the general terms of sale and standard contracts of exporting companies to determine whether the Convention applies, whether it should be kept or excluded, and, where exclusion is wanted, drafts a clause that actually achieves it together with the replacement law. That review is usually carried out alongside the jurisdiction clause and the Incoterm, since the three decisions interact.
Where a dispute has arisen, the firm conducts it under the Convention: characterising the lack of conformity, establishing that notice was given in time or that Article 40 dispenses with it, exercising avoidance by declaration or price reduction under Article 50, and quantifying damages within the foreseeability cap of Article 74. A first assessment is normally possible within a few days on the strength of the contract, the invoices and the correspondence about the defect.
To see these rules applied to real situations, two pages of the series Exporter disputes start from the case as lived: the foreign buyer who refuses the goods and the buyer who disputes conformity eight months after delivery.
Does your contract designate French law, believing that excludes the Vienna Convention? The firm checks which regime actually governs your sales and drafts the clause that matches your intention.
Frequently asked questions
Does a clause designating French law exclude the Vienna Convention?
No, it does the opposite. The Convention has been in force in France since 1 January 1988 and the Court of Cassation holds that it constitutes the French law of international sale. A clause designating French law therefore designates the Convention for a sale within its scope. Excluding it requires an express clause naming the Convention and stating that it is set aside in its entirety.
Does the Convention apply without being stipulated in the contract?
Yes. Under Article 1(a) it applies of its own force where the parties have their places of business in different Contracting States, with no conflict of laws reasoning. Under Article 1(b) it applies where the rules of private international law lead to the law of a Contracting State. In both cases no stipulation is needed, and there are now ninety-seven Contracting States.
Is the two-year period in Article 39 a period for bringing an action?
No. It is the long-stop period for giving notice of a lack of conformity, not a limitation period for claiming compensation, as the Court of Cassation held expressly in 2016 and confirmed in 2022. Limitation itself falls outside the Convention and is governed by the law designated by the conflict rule. Article 40 also disapplies the notice requirements where the seller knew of the defect and did not disclose it.
Which subjects does the Convention not govern?
Article 4 excludes the validity of the contract and its clauses and the effect of the contract on the property in the goods; Article 5 excludes liability for death or personal injury; Article 2 excludes consumer sales, auctions, execution sales, securities, ships and aircraft and electricity. Limitation, retention of title, capacity and defects of consent therefore remain governed by the law designated by the conflict rule.
Is it better to keep the Convention or exclude it?
For most sales of goods between businesses, keeping it is the better choice: a single regime of non-conformity, avoidance by declaration without going to court, a built-in foreseeability cap on damages, and exclusivity within its scope. Exclusion is justified for contracts with a heavy service component, commodity sales on English-law standard forms, and contractual chains whose other links ignore the Convention.
Further reading: Incoterms 2020 and the transfer of risk, governing law and jurisdiction clauses, recovering an unpaid invoice from a foreign customer.
Written by Hervé Guyader, avocat at the Paris Bar, doctor of law. This content is general information and is no substitute for advice on your own matter.