Brazil: United Nations Convention On Contracts For The International Sale Of Goods

Last Updated: 14 April 2014
Article by Victor Galante, Guilherme Vieira da Silva and Luciana Sodré

Keywords: United Nations, International Sale of Good, CISG, Brazil,

On April 1st, 2014, the Vienna Convention for the International Sales of Goods (CISG) entered in force in Brazil. It is a result of the Legislative Decree No. 538/2012, enacted by the National Congress in March 2013, which incorporated the CISG into the Brazilian legal framework.

Enacted in 1980 by the United Nations, CISG aims to give effectiveness to the United Nations' resolutions seeking the institution of a new equitable economic order, and mutually advantageous international relationships, eliminating uncertainties in international trade, caused by the diversity of social, economic and legal systems present in international contracts.

The CISG is applicable to contracts for sales of goods, executed between parties located in different countries, provided that such countries are signatories to the CISG. It is also applicable to facilitate conflict resolution whenever the laws of one particular jurisdiction are exclusive of any other law.

While the CISG has been created as a mechanism to standardize international trade practices and drive the contracting parties to a common law, it does face the challenge of being fit in the various signatory countries' legal framework. Such difficulty occurs especially because the rules of CISG are essentially based on principles, whereas specific regulation of the signatory countries may cause a good extent of conflict of regulation.

CISG's rules will apply to international contracts for sales of goods involving Brazilian parties, unless otherwise expressly excluded in the contract. Notwithstanding this particular aspect, CISG's principles will also apply to the parties' pre-contractual actions imposing, therefore, a new duty to the contracting parties making them additionally wary of their actions prior to execution of the contract.

In spite of the commitment of the members of CISG in pursuing the adoption of the Convention - which is considered a decisive elements for the fostering of international trade relations – it is anticipated a good level of resistance in the adoption and recognition of the CISG by the various parties. This is because the CISG will have to be interpreted and fitted into the Brazilian legal system along side with other contractual law rules.

In view of the possible uncertainties in the Brazilian legal system resulting from the application of CISG, the chart below highlights some controversial points or potential risks in the usage of CISG, as well as recommendations to the parties if they do decide to use it.


The convention is not applicable to contracts that provide mainly workmanship and other services by one of the parties. Lack of definition of "mainly" was source of great doubts. In view of that, the Advisory Board of CISG1 established the criteria of economic price of the contract to be considered in the determining if contracts provide "mainly" workmanship and other services. In the event of non-existence of such criteria, the Advisory Board defines that the essential nature of the contract may alternatively2 be used.


CISG stipulated the good faith principle in international negotiations. This principle is already foreseen in the laws of Brazil and is disseminated and used in contract interpretation in the country.

However, in international negotiations, this principle should be interpreted disregarding other internal side laws. Hence, the application and interpretation will be very difficult, and may cause legal insecurity in the event of a dispute being decided in countries governed by Common Law.


The convention establishes that indications and behavior of the parties should be interpreted in accordance with the intention of the parties, considering the negotiation between them and their previous actions. It also establishes that the parties are subject to the uses and practices previously adopted between them and, also, the market practices, which they should be aware of.

Accordingly, the pre-contractual responsibility and the use of parties' behavior in this phase were raised to the condition of extreme importance in the interpretation of the contract, leading to a decreasing importance of the pacta sunt servanda principle.

Therefore, it is important that the parties decide if they will use CISG or if such law will be derogated, in the initial stage of negotiations to avoid major issues in the future.


The convention establishes that when the party receiving a proposal replies to the proponent and the answer contains amendments, limitations or modifications to the proposal, such response is considered as a counter offer. However, if complementary or different elements are presented in such response, but they do not change substantially the terms of the proposal, it shall be understood as an acceptance to the proposal, with the relevant changes.

Thus, it is important that the party that receives the proposal takes due care when sending a response to the proponent, so that it is not accepted or received as counter offer, without that intention.

It might be interesting to include in the contracts governed by CISG some clauses that exclude this article, and consider acceptance of the proposal or counter offer only when the party expressly mentions an opinion in that regard.


The convention does not establish certain terms/deadlines for analyzing the conditions of goods after receiving them and verifying if they have any defects or non-conformities.

Therefore, express reference in the contract to the term for examination of the goods is recommended.


The Convention establishes that when the seller breaches its obligations, the buyer may ask for indemnification for losses and damages, including the interruption of ongoing business. The losses and damages cannot be greater than the loss suffered or the business interruption that the defaulting party foresaw or should have foreseen at the moment of execution of the contract.

This subjectivism regarding the predictable consequences by the defaulting party may cause issues, and it is advisable to establish in the contract a maximum amount of indemnification for losses and damages.


The Convention establishes that if only part of the goods is delivered, the buyer may terminate the contract if the partial breach constitutes an essential violation of the contract. The essential violation of the contract is understood as the losses caused by one party to the other, and prevents such party from receiving the result presumably expected from the contract.

Therefore, it is recommended that buyer establishes in the contract exactly what result is expected from the sale, and that the partial delivery of goods constitutes an essential violation of the contract.


The convention establishes that the buyer shall make the payment of the price on a fixed date, but does not foresee any guarantee for such payment.

Therefore, it is important that the contract establishes the guarantees for the payment, so that the seller is not prevented from receiving the price, even after the conclusion of its obligation.


The convention establishes that if one of the parties does not pay the price, or there is breach of any obligation, the other party, in addition to the possibility of requiring indemnification for losses and damages, may charge interest on the amount that was not actually paid.

It is clear that CISG is really strict in relation to the payment of the price. The buyer when adopting CISG, should avoid including the possibility of charging interest.

Originally published April 11, 2014


1 The Advisory Board of the Vienna Convention is a private initiative by academics from several countries around the world, with the purposes of providing guidance and interpretation of CISG.

2 Opinion No. 4 of the Advisory Board.

Learn more about our Corporate & M&A practice.

Visit us at Tauil & Chequer

Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."

© Copyright 2014. Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions