INCOTERMS® 2010 : codified mercantile custom or standard contract terms
Date
2012-01
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Juta
Abstract
INCOTERMS® reflect the most dominant and consistent commercial customs and practices
evident in international commerce. They are regularly updated to keep them in line with changing
mercantile practice. However, over the years, several terms were added to represent practices which
have not yet developed into mercantile usage or custom. In reaction to the latest revision of the
INCOTERMS® rules, which has come into operation on 1 January 2011, one commentator concludes
that INCOTERMS® now function as standard contract terms and no longer as mercantile custom
or usage. This article addresses the legal nature of INCOTERMS®
, with specific reference to the
International Chamber of Commerce’s (“ICC”) revision methodology. In principle, INCOTERMS®
function as contract terms. Whether they enjoy an autonomous existence apart from party agreement
is a question that has not yet been answered conclusively. There is evidence that courts apply them
as international trade usage or custom, especially in the context of article 9 of the United Nations
Convention on Contracts for the International Sale of Goods (“CISG”). Scholars, however, disagree
on whether INCOTERMS® in toto can function as international trade usage, especially when it comes
to recently introduced rules. It is submitted that individual rules should not be evaluated in isolation,
but that their legal nature should be determined with reference to the compilation as a whole. It is
concluded that the more INCOTERMS® are used in a particular trade, they will become known and
observed in that trade. In due course they will acquire the force of mercantile usage or custom which
can apply independent of party agreement.
Description
CITATION: Coetzee, J. 2021. INCOTERMS® 2010 : codified mercantile custom or standard contract terms. Stellenbosch Law Review = Stellenbosch Regstydskrif 23(3):564-582.
The original publication is available at https://journals.co.za/content/journal/jlc_slr
The original publication is available at https://journals.co.za/content/journal/jlc_slr
Keywords
United Nations Convention on Contracts for the International Sale of Goods (1980 April 11), Contracts (International law), Export sales contracts, Foreign trade regulation
Citation
Coetzee, J. 2021. INCOTERMS® 2010 : codified mercantile custom or standard contract terms. Stellenbosch Law Review = Stellenbosch Regstydskrif 23(3):564-582.