Go to Database Directory || Go to Bibliography

Reproduced with permission of the author.

Admissibility of Analogy in Gap-filling under the CISG

Gert Brandner
University of Aberdeen
September 1999

I. Introduction

A. The Context of Art. 7(2) CISG
B. The Problem

II. Admissibility of Analogy in Gap-filling under the CISG

A. Interpretation of Art. 7(2) CISG 1. Method of Interpretation of Uniform Law
2. Interpretation of Art. 7(2) CISG
B. Development of Art. 7(2) CISG 1. Development of Uniform Law
2. Development of Art. 7(2) CISG
3. Historical Interpretation of Art. 7(2) CISG a) Legislative History of Art. 7(2) CISG
b) Evaluation of the Legislative History
4. Comparison of "General Principles on which the Convention is based" with "Analogy" a) The General Principles on which the Convention is Based aa) Identification
bb) Specification
b) Comparison between the Means of Gap-filling

III. Conclusion

Bibliography


I. Introduction

A. The Context of Art. 7(2) CISG

Traditionally, an international sale of goods [1] was governed by the law applicable by virtue of the choice of law rules of the forum (the lex causae). Since the choice of law rules are not uniform throughout the world [2], the forum has been sometimes decisive for the law applicable. The dependency on the place where the case is heard made it impossible for the parties to know which law applied when there were several potential jurisdictions. To prevent this dependency on the forum is the raison d'être of uniform law. An additional advantage of uniform law is that it is equally accessible for both parties.

However, it was not possible to unify the entire area of law relevant to a sale. The CISG [3] for example, is not concerned with the effect a sale may have on the property in the goods sold (Art. 4(b) CISG). The Convention does not deal with validity (Art. 4(a) CISG) or with agency either. This fragmentary nature of the CISG makes it necessary to determine the relationship between uniform law and the law which is not unified. One possible solution might have been to resort to the law applicable by virtue of the rules of private international law in the case of all questions which are not expressly settled (i.e. unified) in the Convention. Art. 7(2) CISG adopted a different solution:

"Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

Thus, Art. 7(2) CISG refers in the case of "questions concerning matters governed by this Convention which are not expressly settled in it" in the first instance to "the general principles on which it is based". By stating that there can be matters governed by the Convention but not expressly settled in it, the Convention presupposes gaps in the Convention. A gap is an unintentional incompleteness in a code. A code can only be incomplete if it has the purpose to replace, within a certain area, all pre-existing law [4]. However, Art. 7(2) CISG does not stipulate that all gaps have to be filled autonomously. If a gap cannot be filled by recourse to the general principles on which the Convention is based, the traditional method of determining the law applicable by virtue of the rules of private international law applies.

B. The Problem

When filling the gap autonomously, Art. 7(2) CISG only refers to the general principles on which the Convention is based. Analogy to certain provisions of the Convention is not mentioned as a means of filling gaps. This is both puzzling and curious, not only from a German perspective where analogy to certain provisions is the most important means of filling gaps [5], but also from the perspective of other civil law countries [6]. The question then is: whether or not analogy is admissible as a gap-filler under the CISG?

The answer to this question given by commentaries and articles on Art.7(2) is unanimous [7]: Analogy is admissible. For some authors this is so self-evident that the question is never even raised [8]. Others give their opinions in support rather casually and without any reasons being given [9]. Bonell, Enderlein, and Kramer however deal with the question in a little more detail [10]. The main argument is that because recourse to general principles is allowed analogy must be the more admissible, argumentum a fortiori, since general principles "may be applied on a much wider scale" [11] and are "further away from the text of the Convention itself" [12].

It might be argued that a unanimous academic view prohibits further examination of the matter. However, the answer to this fundamental question is not self-evident, for it appears to me, prima facie, that recourse to general principles does not include analogy to a certain provision. The argumentum a fortiori requires detailed comparison of the two methods of filling gaps which has not yet been done with regard to this question. Thorough examination is further justified by the recognition that uncertainty about the methodology will lead to divergent results in gap-filling. It is hoped that the reasons stated above and the author's interest in methodological questions is sufficient justification for the following examination. Nevertheless the reader must be warned of a shortcoming in it which is obvious to the author himself. The entire examination is undertaken from a German perspective. Unfortunately the author does not profess sufficient competence to undertake a comparative analysis on gap-filling. It is to be hoped that somebody may feel challenged by this dissertation to compare his perspective with the German one.

II. Admissibility of Analogy in Gap-filling under the CISG

A. Interpretation of Art. 7(2) CISG

1. Method of Interpretation of Uniform Law

Before interpreting Art. 7(2) under reference to the question whether or not analogy is admissible, the particular method of interpretation should be identified. The CISG constitutes uniform law. Uniform law is on the one hand public international law, and on the other hand, after its transformation into national law, it becomes private law. This dualist nature of uniform law raises the question of which method of interpretation ought to be used.

Art. 7(1) CISG, though dealing with interpretation, does not lay down a specific method. However, the stated aim to promote uniformity sets the task of developing a uniform method. The need to promote uniformity also implies that courts, at least, take notice of other foreign decisions [13]. The international character emphasized by Art. 7(1) requires autonomous interpretation, i. e. that no court can assume that words used in the Convention have the same meaning as in domestic law. The international context prohibits the application of the English rule to be applied that where a word of doubtful meaning has received clear judicial interpretation, a subsequent statute incorporating the same word in a similar context must be construed so that the word is given the meaning which has previously assigned to it [14]. However, autonomous interpretation need not mean that recourse to national law is forbidden under all circumstances [15]. Recourse to comparative analysis should be allowed as an ultima ratio [16]. A comparative analysis is sometimes the only possibility to give content to a normative concept [17].

The dualist nature of uniform law suggests two methods of interpretation: (a) the method used in public international law; and (b) the method used in domestic law. Mann proposes the rules of interpretation applicable to treaties [18]. This would have the consequence that Arts. 31 and 32 of the Vienna Convention on the Law of Treaties (1969) are applicable. It is also recognised in international public law that because the treaty only has effect on the parties to it, it should be interpreted restrictively since it can be assumed that the parties wish only to limit their freedom minimally [19]. Since the treaty only has effect on the parties, it is suggested that the true intention of the parties should be identified. This represents a rather subjective interpretation. It can be seen that the rules of interpretation are mainly based on the assumption that the treaty only has effect on its parties. However, most of the provisions of the CISG determine rights and obligations of private parties (parties to the contract of sale, not the Convention). The rules of interpretation applicable to treaties are appropriate only with respect to part four of the Convention [20]. Mann's opinion was driven by the fact that he did not want the contemporary (1946), special English rules on domestic statutory interpretation to be applied [21].

One obvious reason against the application of domestic rules of interpretation is that there is not one set of rules which is applied in all countries party to the Convention. The domestic rules of interpretation are not identical, and therefore uniformity in application could not be achieved [22]. Although there is a convergence relating to the rules of statutory interpretation between common law countries and the civil law countries [23], especially with regard to international conventions [24], there still seem to be differences in the weighing up of the elements of interpretation. When reading the case Pepper v. Hart it appears to me, educated in a civil law system, that an English court would not be so easily inclined to go beyond the wording of a statute because of objective-teleological criteria as some German courts do [25]. The objective-teleological criteria are not identical with the true purpose of the legislation of which Lord Griffith speaks [26]. Uniform law also poses additional problems. The text of the Convention, for example, has several official languages. The most important reason for not simply applying domestic rules of interpretation is the task to establish certainty (i. e. uniform application) without having a highest court, without having a constitution or a common system of values (which can help when weighing different principles), and without having a common understanding of basic terms [27].

This leads to the question of which uniform method should be applied. Since the Convention regulates the relationship between sellers and buyers, the method of interpretation should resemble the method used in private law. A uniform method has not yet been established. Indeed, it is questionable whether this is possible at all. What seems to be clear, at least for a civil lawyer however, is that the classical canon of the civil law tradition should be applied [28]. The elements are the wording (grammatical element), the context of the statute (systematic element), the legislative history (historical element), and the purpose of the statute (teleological element) [29].

The reason why the civil law tradition's method of interpretation should be used is that the CISG intends to replace, with respects to matters governed by it, the existing domestic laws by allowing gaps to be filled by the text of the Convention itself. The same is true for civil law codes "which were designed to displace the entire body of pre-existing law" [30]. In common law the statutes do not replace the entire pre-existing case law. If the statute does not govern a question, it is not necessary in common law to settle the question by teleological reasoning since one can settle the question by pre-existing case law.

Art. 7(2) itself implies, by referring to general principles on which the Convention is based, that it is admissible to go beyond the text itself. In order to identify general principles and to go beyond the wording, the context and the legislative history are inalienable [31]. However, to state which elements have to be taken into account does not constitute a method, or at least not the most defined. The relationship of the elements towards each other might differ from the situation when domestic law is interpreted, because of the different circumstances described above. Uniformity which is so hard to establish (no highest court, no common system of values, no common understanding of basic terms) could be best achieved by sticking to the wording [32] and if that is not clear by studying the legislative history [33]. The systematic argument will not help very often since only a small part of law is encompassed by the unified law. The peculiar circumstances of uniform law would lead to the conclusion that the teleological argument, understood in the objective way which most German courts do, should be used only very cautiously [34]. On the other hand, one has to take into account that other peculiarities of uniform law point in another direction. As the CISG took fifty years of preparation to become a success it can hardly be reformed quickly. This favours a teleological argumentation over a historical one and one which sticks to the wording of the Convention. The most decisive question will be where the borderline lies. Is the Rubicon passed when it is clear from the legislative history that although the problem was seen by the delegates they could not agree on a solution? [35] When uniformity and adequacy cannot be achieved at the same time, in my opinion uniformity should be preferred. This opinion I would argue is supported by Art. 7(1), which stresses the value of uniformity. From that basis two propositions on the relationship between the historical element and the teleological element can be extracted. The first is that if the wording is ambiguous and allows for two different interpretations, one of which is supported by the legislative history of the Convention, and the other by objective-teleological reasons, then the former is to be preferred. Secondly, the same may be said in the case of gaps. If incompleteness in the Convention is the result of a deliberate choice by the delegates, then there is no gap; even when there are objective teleological arguments inherent to the Convention for another decision [36]. After identifying the elements of interpretation and some guidance where one element is to be preferred to another, Art. 7(2) can be interpreted with regard to the question whether or not analogy is admissible in gap-filling [37].

2. Interpretation of Art. 7(2) CISG

Art. 7(2) states that gaps should be "settled in conformity with the general principles on which it [the Convention] is based . . .". Does the recourse to general principles on which the Convention is based include analogy to a certain provision or to several provisions?

The term "general principles on which the Convention is based" has to be defined autonomously. The normative nature of that term renders that difficult. The systematic context does not help either. It can only be inferred from Art. 7(2) that those general principles cannot be identical with the provisions of the Convention, since in that case the Convention, which is the sum of its provisions, could not be based on them. The general principles must therefore, in logic, be more general than the provisions of the Convention. Is it sufficient that the principle is a generalization of one or more provisions of the Convention, or is the fulfilment of an additional requirement necessary?

Analogy is based on the recognition that the ratio legis of a certain provision also applies to a case that is not encompassed by the wording of the provision. Analogical application of a certain provision to a similar case not encompassed by the wording of the provision is justified by the principle of equality which requires equal treatment of all things. The two similar cases, one encompassed by the wording of the provision, the other not, must be equal in essential respects. To assess whether similar cases are equal in essential respects, the ratio legis has to be identified [38]. Two cases are only similar, if they have something in common and therefore can be combined in a common generic term.

This shall be illustrated with an example. Art. 57(1) CISG states that if the place of payment is not agreed upon by the parties and if the payment is not to be made against the handing over of the goods or documents, the place of payment of the price is the seller's place of business. The place of payment in the case of damages is not dealt with by a provision of the Convention. Payment of damages is not encompassed by the wording "payment of the price" in Art. 57(1) CISG. Payment of the price and payment of damages are similar since they can be combined in the term "payment". The ratio legis of Art. 57(1) is that the buyer shall bear the costs and the risk of payment (delay, loss) since he controls the risk and the costs by choosing the method of payment [39]. With regard to the ratio legis, payment of the price and payment of damages are equal in essential respects, since there seems to be no reason why both should be treated differently. Therefore it is justified to apply Art. 57(1) to the payment of damages by analogy.

In German methodology two types of analogy are distinguished traditionally [40]: a) "Gesetzesanalogie", analogy to one provision (better referred as "Einzelanalogie") [41]; b) "Rechtsanalogie", analogy to several provisions (better referred as "Gesamtanalogie"). Whereas in the case of "Einzelanalogie" one provision is applied to a case which is not encompassed by the wording but by the ratio legis, in the case of "Gesamtanalogie" a more general rule is derived from several provisions which also applies to other cases not encompassed by the wording of the several provisions. In order to clarify "Gesamtanalogie" it shall be returned to the example given above. If there was another provision stating that in the case of termination of the contract, the seller has to pay back the price at the buyer's place of business, one might derive from Art. 57(1) CISG and the hypothetical provision the more general rule that payments are to be performed at the creditor's place of business if not otherwise agreed on and if the obligations do not have to be fulfilled concurrently. This generalization of several provisions to a more general rule would constitute "Gesamtanalogie" [42].

If the general principles on which the Convention is based were to be understood as mere generalizations of one or more provisions of the Convention, "Gesamtanalogie" would be explicitly admitted since a more general rule is derived from several provisions [43]. If the general principles on which the Convention is based were to be understood as mere generalizations of one or more provisions, one might argue that even "Einzelanalogie" is admitted. Analogy ("Einzelanalogie") is based on the recognition that the ratio legis of a certain provision applies to a case not encompassed by the wording of the provision. Thus, the ratio legis must be more general than the wording and this general thought forms the basis for analogy [44].

If general principles on which the Convention is based were to be understood as mere generalizations of one or more provisions, then the difference between recourse to general principles and analogy would disappear. Such an interpretation would neglect the fact that many civil law countries distinguish between analogy and recourse to general principles [45]. The interpretation of general principles as mere generalizations of one or more provisions neglects the wording of Art. 7(2) CISG itself. Art. 7(2) speaks of "general principles on which it [the Convention] is based". Can it really be said that the rule derived from Art. 57(1) - stating that payments are to be performed at the creditor's place of business, if not otherwise agreed on and if the obligations are not to be performed concurrently - is a general principle on which the Convention is based? [46] Can it really be said that the general rule that can be derived from Art. 20(2) CISG - official holidays or non-business days are to be included in calculating the period of time limit, but if the acceptance, performance, payment etc. is impossible on the last day of the period because this day is an official holiday or non-business day, the period is to be extended until the first business day which follows - is a general principle on which the Convention is based? [47]

It is not sufficient that the rule is more general than the provision because the Convention as a whole must be based on it. It is significant that the supporters of the interpretation, that it is sufficient for a general principle on which the Convention is based to be more general than its provisions, drop the second part "on which it [the Convention] is based" [48]. The Oxford Advanced Learner's Dictionary defines principle as "a basic general truth that is the foundation of something" [49]. One can only speak of a general principle on which the Convention is based if the principle is a pillar of the Convention. The French text expresses that in an even clearer manner:"…seront reglées selon les principes généraux don't elle [la présente Convention] s'inspire…" [50].

The interpretation that the general principles on which the Convention is based have to be pillars of the Convention is supported by the legislative history of Art. 7(2). In the first session of the Working Group, the general principles were identified by one supporter of Art. 17 ULIS as the "general ideas which inspired the Uniform Law" [51]. The rule that can be derived from Art. 20(2) is much too detailed and only related to one specific question (time limits) that it could be said that the Convention is based on it. The same applies to the place of payment.

One pillar, indeed the keystone, of the Convention is party autonomy. Without party autonomy there would be no sale which is a specific form of a contract. Another example of a pillar of the Convention is the principle of favor contractus. This principle underlies the Convention as a whole and can explain several provisions of the Convention dealing with different issues [52]. The many references to the standards of reasonableness show that a reasonableness test constitutes a general principle for evaluating the parties' behaviour [53]. It is difficult sometimes to decide whether a principle is underlying the entire Convention and therefore a pillar of the Convention.

The dispatch rule expressed in Art. 27 CISG is said to be a general principle on which the Convention is based [54]. This is doubtful because it only deals with one particular issue. However, this issue is of greater importance than, for example, Art. 20(2) CISG. Thus, it might be justified to regard it as a general principle on which the Convention is based. The question whether or not the dispatch rule is a general principle need not be decided in this context. It is sufficient to show that there is a grey area whether or not a principle constitutes a pillar of the Convention. However, there are generalizations of thoughts expressed in a provision that certainly are not pillars: the rules that can be derived from Art. 20(2) and Art. 57(1) CISG.

The additional requirement for general principles on which the Convention is based, that the principles must be pillars of the Convention, has the consequence that analogy is not included in the recourse to general principles on which the Convention is based [55]. "Gesamtanalogie"(analogy to more than one provision which leads to a more general rule) is only encompassed by recourse to general principles if the generalization is a pillar of the Convention, and that is not necessarily the case. Generalizations from a single provision, for example, the rule derived from Art. 20(2) CISG, are also not admitted directly in so far as these generalizations do not constitute a pillar of the Convention.

B. Development of Art. 7(2) CISG

1. Development of Uniform Law

In German domestic law the borderline between interpretation and development of the law is the wording of the statute [56]. Everything that goes beyond the wording is development of the law. There are two types of development of law: development beyond the wording but within the teleology of the statute and development beyond the wording and beyond the teleology of the statute [57]. Development within the teleology of the statute requires an unintentional incompleteness in the statute. The standard to judge whether the statute is incomplete is its own teleology. Even development beyond the teleology of the statute is admissible in German domestic law [58]. However it requires the clearance of higher hurdles. Gaps can be filled according to German law by analogy, by recourse to general principles, or according to the nature of things [59].

Art. 7(2) CISG allows development of law within the teleology by, at least, one method: namely recourse to general principles on which the Convention is based. The admissibility of development by analogy is the topic of this examination. Nothing is said if development beyond the teleology of the Convention is admissible. The peculiar situation that uniformity has to be achieved without having a highest court points in the direction of an argumentum e contrario meaning that Art. 7(2), which only allows development within the teleology of the Convention, simultaneously prohibits development beyond the teleology of the Convention. Furthermore, it has to be taken into account that development beyond the teleology of the statute is often justified, if admissible at all, by a change of system of values possibly documented by a new constitution. A common system of values, if it exists at all, is more difficult to find at international level. Thus, development of law beyond the teleology of the Convention is not admitted de lege lata, and should not be admitted de lege ferenda.

2. Development of Art. 7(2) CISG

Is Art. 7(2) CISG itself unintentionally incomplete in so far as it does not admit analogy as a means of filling gaps?

A gap cannot merely be assumed because Art. 7(2) does not explicitly deal with the question whether or not analogy is admissible. The omission of any mention of analogy can carry the negative implication that analogy is not admissible (argumentum e contrario). In order to distinguish a gap (an unintentional incompleteness of the Convention) from a shortcoming de lege ferenda, it has to be examined whether or not the confinement of the methods on gap-filling to recourse to general principles has been a deliberate choice. If the legislative history reveals that the delegates did not mention analogy because they did not want to allow gaps to be filled by analogy, there was not a gap.

3. Historical Interpretation of Art. 7(2) CISG

Gaps arise when the legislator is not aware of a problem. The reason for this is often that the problem did not exist at the time the law was made. The problems arise out of a change in the conditions of life caused by technical progress. It is also possible that the legislator simply overlooked the problem. Gaps are inevitable and it therefore was recognized at the beginning of the nineteenth century that there should be a provision on gap-filling [60]. Analogy as a means of gap-filling was used in Art. 7 of the Austrian Civil Code (1811) and several provisions of later codes [61]. Thus, it seems, prima facie, that the legislator of the Convention was aware of analogy as a means of gap-filling and that the omission of any mention thereof was intentional. The historical interpretation will examine if this assumption is true.

a) Legislative History of Art. 7(2) CISG

The legislative history of the CISG is fifty years old. The CISG had one predecessor in the form of two conventions, the Convention Relating to a Uniform Law of International Sale of Goods (short: ULIS) and the Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods. Each of the conventions was proceeded by various drafts, statements of governments, and conferences.

Art. 7(2) CISG goes back to Art. 11 of the first draft of the Uniform Sales Law of 1935 which read as follows: "if this statute does not expressly settle a question and does not formally provide for application of a national law, the court decides in conformity with the general principles which this Statute follows" [62]. Unlike Art. 7(2), there is no recourse to national law, unless formally provided. The wording resembles Art. 38(1)c of the Statute of the International Court of Justice at The Hague which stated that the court should apply, inter alia, the general principles of law recognized by civilised nations. Rabel, who played a major part in unifying the sales law, understands Art. 11 as referring "to the common features of legal doctrines, which are to be found through comparative analysis, as a source of law" [63]. The general principles therefore could be external. The principles were general in the sense of being common to all or the majority of countries.

The question then arises: why has analogy not been taken as a gap-filler? This is the consequence of regarding, at that time, international conventions unifying private law as primarily falling within the sphere of public international law. Thus, the resemblance to Art. 38(1)c of the Statute of the International Court of Justice at The Hague can be explained. Analogy was prohibited in public international law at that time [64] because of the assumption that the parties to a convention only intend to restrict their sovereignty as minimally as possible. Furthermore there was no set of rules in public international law to which analogy could be used.

Art. 11 of the first draft became Art. 11(2) second part of the sentence of the draft of 1939, then Art. 1 second part of the sentence of the draft in 1956 and 1963 where the part "and does not formally provide for application of a national law" was dropped [65]. There were several statements of governments on this provision. Particularly relevant, with respect to the question whether the omission of any mention of analogy was deliberate, was the statement of the government of Italy proposing analogy to the provisions of the uniform law as appropriate for filling gaps [66]. This proposal was repeated by Hungary in the Diplomatic Conference at The Hague (1-25.4.1964) but was rejected with the argument that analogy as the only possibility of gap-filling would seem to be insufficient and too narrow [67]. Thus Art. 17 ULIS reads as follows: "Questions concerning matters governed by the present Law which are not expressly settled therein, shall be settled in conformity with the general principles on which the present Law is based".

Analogy was held to be admissible according to the academic literature under Art. 17 ULIS [68]. This is understandable since the wording of Art. 17 ULIS prohibited recourse to national law. Another consequence that gaps had to be filled autonomously was that it was proposed that external general principles could be used as a gap-filler [69]. Such external principles had to be identified by comparative analysis. This was justified in that this would resemble the method used to establish the uniform law. But even Dölle points to the difficulties involved with such a method [70].

When it had been clear that the Hague Conventions would not be a success because not enough countries ratified it, UNCITRAL decided to produce a draft on uniform sales law itself (15.2.1968). UNCITRAL established a Working Group. In its first session (5.1 -16.1.1970) Art. 17 ULIS formed the basis for discussion with respect to gap-filling [71]. Art. 17 was criticized by some of the delegates, and approved by others. The former pointed, inter alia, to the uncertainty involved by recourse to general principles for it would be difficult to identify such principles [72]. The latter stressed the fact that a solution that refers to national law would lead to disunity [73]. Two proposals to revise Art. 17 ULIS were made. The first read as follows: "the present law shall be interpreted and applied as to further its underlying principles and purposes, including the promotion of uniformity in the law of international sales" [74]. This proposal dealt with interpretation [75] as well as with gap-filling. It included analogy since analogy is one possibility of furthering the underlying purpose of a provision. The second proposal read: "Private international law shall apply to questions not settled by ULIS" [76]. A compromise between the two proposals was suggested [77]. None of the proposals was supported by a majority of the Working Group [78]. It was therefore decided to refer the matter to the Commission [79]. The discussion and proposals made at the third session of the Commission (19.11.1970) resembled closely those in the Working Group [80]. Again no agreement could be reached and the question was re-referred back to the Working Group [81]. In the second session of the Working Group (7-18.12.1970), the Working Group recommended the deletion of Art. 17 ULIS and the adoption of the following provision: "In interpreting and applying the provisions of this Law, regard shall be had to its international character and to the need to promote uniformity [in its interpretation and application]" [82]. Several representatives argued that a supplementary provision on gap-filling should be added [83]. One proposal was similar to the one made on the first session. It read: "Questions concerning matters governed by the present Law which are not expressly settled by it, shall be settled in conformity with its underlying principles and purposes" [84]. It was explained that "one source of these principles would be generalizations that appear from the examination of various specific provisions of the Law; another source would be the course of evolution of the Law" [85]. Hence, analogy was included. The other proposal referred to private international law. [86] Again, no agreement could be reached and the question was referred, this time as a matter of principle, back to the Commission [87]. The revised text of the Uniform Law only contained the recommended provision on interpretation, quoted above [88]. Art. 17 became Art. 13 of the Geneva Draft (1976) and of the Vienna Draft (1977) [89]. Art. 13 of the Vienna Draft became Art. 6 of the New York Draft (1978). The reference to good faith was included there [90]. Art. 6 of the New York Draft is identical with Art. 7(1) CISG. The New York draft, like its predecessors, did not contain a provision on gap-filling. It is not totally clear, what the consequence of this omission would have been. Probably, gaps would be filled by recourse to national law applicable by virtue of private international law of the forum [91].

It can be seen from this that "Art. 7(2) CISG was born at the latest stage of the preparation of the Convention" [92], in the Diplomatic Conference in Vienna. There, it was felt that a provision dealing with gaps should be added. The representative of Czechoslovakia stated that gaps should be filled by the law applicable by the rules of private international law [93]. The representative of Bulgaria came up with a new proposal. Unsettled questions should be decided according to the law of the seller's place of business [94]. According to Italy (Bonell), gaps should be filled in conformity with general principles or, in the absence of such principles, by taking account of the national law of each of the parties [95]. Bonell explained this proposal that gaps should be filled "on the basis of those principles and criteria which reflect the letter and the spirit of the Convention itself" [96]. It can be inferred from this statement that he believed analogy to be included in the recourse to general principles [97]. Finally, a compromise was reached between autonomous gap-filling and recourse to national law, as proposed by the German Democratic Republic. Seventeen votes were in favour of this proposal which became Art. 7(2) CISG, fourteen votes were against it, eleven delegates abstained [98]. Thus Art. 7(2) reads:

"Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

Though the wording of art. 7(2) CISG is in this respect the same as Art. 17 ULIS ("in conformity with the general principles on which it (the present Law in ULIS) is based"), the unanimous academic view regards recourse to external sources as inadmissible when identifying general principles [99]. It takes account of the fact that it is an impossible task for a court to find general principles through comparative analysis. Another advantage is that a lot of difficult questions are avoided [100]. It is now realized that to identify general principles through comparative analysis would endanger the uniform application more than to further it.

b) Evaluation of the Legislative History

The legislative history of Art. 7(2) CISG can be compared with a swing of a pendulum from one extreme (Art. 17 ULIS - gaps only to be filled autonomously) to another (no provision on gap-filling from the Geneva Draft onwards which meant that gaps should be filled by the national law applicable by virtue of private international law) in order to be stopped in the middle (Art. 7(2) CISG). When UNCITRAL took over, the discussions focused on the two possibilities. The central theme was that agreement could not be reached between the two extreme positions. Thus, Art. 7(2) CISG was a compromise between the two extremes. The delegates must have been aware of that nature of Art. 7(2). Were they also aware that the wording did not include analogy?

It can be argued that they must have been aware of this because a long tradition in continental Europe and in South America distinguished between analogy and the recourse to general principles as a means of filling gaps. Additionally, it can be put forward that at some stages of the long legislative history the problem was identified, notably when the Italian government proposed analogy to the provisions of the uniform law in the case of gaps [101], followed by Hungary at the Diplomatic Conference at The Hague, relating to ULIS [102]. With respect to the CISG there had been a proposal to settle gaps in conformity with its underlying principles and purposes [103]that would have included analogy.

On the other hand, it has to be stated that the discussions when UNCITRAL took over never focused on admissibility of analogy. The word analogy was not even mentioned on one single occasion [104]. The partial use of the wording of Art. 17 ULIS (" in conformity with the general principles on which the present Law [became "it" in Art. 7(2) CISG] is based") has to be seen as recourse to a tried and tested formula standing for autonomous filling of gaps. The supporters of autonomous gap-filling preferred this formula since, because of its tradition, it offered a higher chance that it would be adopted, even though it originated from a totally different understanding of international conventions unifying private law [105]. They also ignored the fact that the general principles had a less significant role, because the identification of general principles in comparative analysis is nowadays regarded as an impossible task for a court. Although it is not decisive what one delegate thought what was meant with the recourse to general principles, the opinion of the delegate who made the proposal should be taken into account. Bonell thought that analogy was included [106]. This can only be explained by the fact that he thought that the traditional formula stood for autonomous gap-filling [107]. This is supported by the fact that under Art. 17 ULIS analogy was regarded admissible.

The argument between the two extreme positions has put the following question in the background: what means should be admissible when gaps are filled autonomously? It therefore must be concluded that no purpose with respect to admissibility of analogy existed. It can neither be stated that the delegates wanted to allow analogy regarding the clear wording, nor that they wanted to prohibit analogy. The legislative history of Art. 7(2) is inconclusive with regard to the question of whether or not analogy is admissible.

4. Comparison of "General Principles on which the Convention is based" with "Analogy"

Since the legislative history did not reveal that the delegates intended to prohibit analogy as a means of filling gaps, the question whether or not analogy is admissible has to be answered by objective-teleological arguments. Thus, the means of filling gaps not mentioned by Art. 7(2) CISG, analogy and generalizations from a single provision, have to be compared with recourse to general principles on which the Convention is based. If equal treatment with regard to the ratio legis is justified, then analogy and generalizations from a single provision, even when not constituting a pillar of the Convention, are admissible.

a) The General Principles on which the Convention is Based

The general principles on which the Convention is based must underlie the Convention as a whole. They must be pillars of the Convention. The principle must be so important that without it the Convention as a whole might crumble. Due to their fundamental character the general principles often have to be further specified in order to offer a solution for a particular case [108].

Filling gaps by recourse to general principles firstly requires that the judge identifies the general principle and then specifies it with regard to the particular question [109]. Since the identified principles (for example favor contractus) often do not have the form of concrete rules, but only argue in a certain direction, the principles relevant to the particular case have to be identified [110], and weighed against each other (if several principles are relevant to the particular case - for example, party autonomy and the principle of good faith). Often the principle uses standards like reasonableness or good faith, which have to be further specified with regard to the question. The different steps involved when filling gaps will be looked at in more detail now.

aa) Indentification of the General Principles on which the Convention is Based

The general principles on which the Convention is based can be expressly provided for [111]. The principle of party autonomy, for example, is mentioned in Art. 6 CISG, though it is expressed incompletely since party autonomy has a wider meaning than that which is expressed in Art. 6 CISG [112]. The rules dealing with formation of contract are based on party autonomy. A general principle can also be deduced from specific provisions of the Convention [113]. The principle of favor contractus can be deduced from Arts. 19(2), 25, 26, 34, 37, 48, 49, 51(1), 64 CISG [114]. Since it is a question of degree whether a principle is so important that one can speak of a pillar of the Convention, the identification is sometimes doubtful [115]. Of utmost importance is the question whether or not good faith is a general principle of the Convention relevant to the parties' behaviour [116].

As set out earlier, the current unanimous academic view regards identification of general principles through comparative analysis as an impossible task for a court and therefore does not allow it [117].

bb) Specification of General principles on which the Convention is Based

The principle relevant to the particular case has to be identified. Art. 78 CISG will be taken as an example to illustrate this. Several general principles are proposed to determine the interest rate in Art. 78 [118]. It has been proposed that there is a trade usage in the sense of Art. 9(2) CISG with regard to the interest rate [119]. However, no such international trade usage exists. Two other general principles have been proposed to determine the interest rate not fixed by Art. 78: Honnold argues that because the underlying rationale for granting interest was to award damages without proof, the general principle of full compensation is applicable [120]. Thus, since the damage occurs in the creditor's place of business, the interest rate of this country applies [121]. Others argue that the principle of unjustified enrichment applies and therefore, since the enrichment occurs in the debtor's place of business, the interest rate of the debtor's place of business applies [122]. The question does not need to be decided in this context [123]. It is sufficient to show that the judge has the task when filling gaps by recourse to general principles to identify the principles relevant to the particular question.

Different principles might argue in different directions. For example, party autonomy and the principle of good faith might argue in different directions. Then the judge has to weigh up the principles [124]. This is particularly difficult in uniform law where no common constitution exists which might indicate the status of a principle.

The general principles on which the Convention is based often refer to standards like reasonableness or good faith. These standards need further specification in order to be applied in a particular case. It is proposed that this specification, i.e. deriving concrete rules from the general principle, has to be undertaken in a comparative analysis [125]. Otherwise the different national understandings of, for example, good faith, would lead to divergent applications of the Convention. Thus, whereas comparative analysis is refused when general principles are identified, it comes back into play when the identified general principles need further specification. However, the difficulty of the task, leading to the recognition that general principles should not be created by comparative analysis, remains the same with regard to the specification of the standards [126].

When undertaking the comparative analysis it is important to start with a state of facts and to compare the solutions adopted by the particular legal systems [127]. It is wrong to look at the institute itself since it could be that the problem is addressed by other provisions. For example, almost the same results are achieved by Art. 1382 Code civil (a provision concerning tort) in France as that which is achieved in Germany by using culpa in contrahendo [128]. This makes it particularly difficult for a judge to undertake such a comparative analysis. To start with a particular problem (a state of facts) makes it necessary to distinguish between different states of facts, even when they all are solved by one certain institute, for example culpa in contrahendo [129].

Another approach to give content to such standards is to develop a common understanding by looking to provisions of the CISG where the general principle is expressed in a concrete rule [130]. At least, the judge has to take into account the specific provisions and must not arrive at a different solution by filling the "gap" (in reality there is no gap) by recourse to general principles. For example, one might argue that the principle of good faith also applies to negotiation and that therefore a party might be liable when breaking off negotiations without any reason [131]. However, it seems more sound that there is not a gap to be filled. Arts. 15, 16 CISG allow an offer to be revoked before a contract is concluded without any liability on part of the offeror. Negotiation is a pre-offer stage. Thus, argumentum a fortiori, it must be possible to break off negotiations without being held liable for the damage that might occur to the other party [132].

Filling gaps by recourse to general principles is particularly difficult in uniform law. Because of the fragmentary nature of uniform law there are less general principles in uniform law than there are in domestic law. Due to the fact that there is no constitution or common system of values that might indicate the status of a principle it is more difficult to prefer one principle to another when there are several relevant principles. Without having a highest court it is difficult to derive concrete rules from the general principles which are recognized by all countries which are parties to the Convention.

b) Comparison between the Means of Gap-filling

After having described both the general principles and analogy, the two means of filling gaps will now be compared with regard to the trains of thought to be undertaken by the judge. The task to identify a general principle has no parallel when analogy is used as a gap-filler since the provision already exists there. Instead, the ratio legis has to be identified in order to find out whether it applies to the particular case and therefore analogy is justified. When a gap is filled by analogy, the provision does not need any further specification since usually the provision has the form of a concrete rule. However, the question which principle is relevant to the particular case which has to be answered when filling gaps by recourse to general principles is parallel to the question which provision is to be applied analogically [133]. The task of weighing up different relevant principles in order to prefer one to another when filling gaps by recourse to general principles is similar to the question which has to be answered when a provision is applied by analogy whether the differences between the cases (one encompassed by the wording, the other not) are essential with regard to the ratio legis.

Therefore it can be concluded that the two means of gap-filling require different but similar trains of thought. A judge has more freedom when gaps are filled by recourse to general principles. In addition to that no further specification through comparative analysis is needed when analogy is used. The same is true when the recourse to general principles is compared with generalizations from one single provision since in the latter case the general rule still has the form of a concrete rule that does not need any further specification.

III. Conclusion

Art. 7(2) CISG refers in the case of gaps in the first instance to the general principles on which the Convention is based. Thus, Art. 7(2) prefers autonomous gap-filling in the form of recourse to general principles to making resort to the law applicable by virtue of the rules of private international law. The reason why autonomous gap-filling has priority over resorting to the law applicable by virtue of private international law is because when the latter method is applied the law applicable sometimes depends on the forum [134]. Autonomous gap-filling preserves the advantages of uniform law: it avoids the dependency on the forum which allows the parties to know which law applies before a claim is filed; the law is equally accessible for both parties.

However, in contrast to its predecessor, Art. 17 ULIS, gaps are not filled autonomously under Art. 7(2) CISG by all means. If general principles on which the Convention is based are absent, Art. 7(2) refers to the law applicable by virtue of the rules of private international law. The experience made under Art. 17 ULIS has shown that it is an impossible task for a judge to fill gaps by comparative analysis. Even under Art. 17 ULIS, the traditional method of determining the law applicable by virtue of choice of law rules was sometimes adopted. When a gap cannot be filled by the teleology of the Convention itself but a solution to it must be invented, uniformity could not be achieved by any method since there is not a highest court to establish uniformity. When a gap cannot be filled by the teleology of the Convention it seems preferable to refer to the law applicable by virtue of the rules of private international law since such a method ensures more certainty for the parties than to oblige the judge to invent a solution. The reason why the traditional method ensures more certainty is that most of the choice of law rules accept a choice by the parties with the consequence that often the law applicable can be determined before a claim is filed.

Thus, the ratio legis of Art. 7(2) is to preserve uniformity as far as possible . With regard to this ratio legis, equal treatment of the means of gap-filling (recourse to general principles on which the Convention is based; analogy; generalizations from a single provision) is justified. Since there is less freedom for a judge when he applies a provision by analogy or derives a more general rule from a single provision, uniformity in gap-filling will be more easily achieved by them. Due to the fact that there are only a few general principles but a lot of provisions to be applied by analogy, uniformity will be more preserved when analogy and generalizations from a single provision are admitted. Thus, the argumentum a fortiori put forward by Kramer and Enderlein is justified. Another argument in favour of equal treatment is that it is sometimes difficult to distinguish between the different methods of gap-filling.

It might be objected that using the argumentum a fortiori is arguing with an argument whose admissibility has yet to be proven. The argumentum a fortiori, like analogy, is based on the recognition that the ratio legis of a certain provision also applies to a case not encompassed by the wording. The argumentum a fortiori can be distinguished from analogy only in so far as that in the former case an additional reason argues in favour of applying the provision to the case not encompassed by the wording. The counterargument against the vicious circle is that such a vicious circle (using an argument whose admissibility has yet to be proven) is inevitable when a provision on interpretation and gap-filling is interpreted.

Therefore it must be concluded that analogy and generalizations from a single provision are admissible under Art. 7(2) CISG. However, it would be better, de lege ferenda, if analogy was explicitly mentioned in the provision on gap-filling. New conventions unifying parts of private law should not adopt the wording of Art. 7(2) CISG [135].

It might be argued that to justify analogy by argumentum a fortiori is unnecessary when a broader interpretation of general principles on which the Convention is based (general principles understood as generalizations of one or more provisions of the Convention) leads to the same result. However, there are two reasons against such a broader interpretation. First of all, such an interpretation goes beyond the wording. Secondly, the difference in the justification has a practical impact. If analogy is not explicitly allowed, but the general principles on which the Convention is based are understood as generalizations of one or more provisions, a court is tempted to assume a general rule where it would have been sufficient and better to be content with analogy. An example may illustrate this. When concerned with the question where the place of performance in the case of damages is, a German court put forward the general principle (better labelled as a rule) that the place of any payment is the creditor's place of business [136]. The German court derived that rule from Art. 57(1)a CISG. The result is convincing concerning damages. The ratio legis of Art. 57(1) is that the buyer shall bear the risk (delay, loss) and the costs of payment since he controls the risk and the costs by choosing the method of payment [137]. This ratio legis also applies in the case of damages since there is no reason pointing in another direction. But does this ratio legis, as proposed by the German court, apply to any payment? Is it justified that the seller bears the risk and the costs in the case of repayment of instalments when the buyer is liable for the termination of the contract? It is arguable that this case is different in essential respects from the situation dealt with by Art. 57(1) CISG. The German court did not consider this case when determining the place of payment of damages. Therefore it would have been better to apply Art. 57(1) CISG by analogy [138] and not to propose a general rule applicable to cases not foreseen by the court. However, the German court did not dare to use the method of analogy since it was not sure whether or not analogy was admissible.


Bibliography

Academic literature

Bayer, F. Wilhelm, "Auslegung und Ergänzung international vereinheitlichter Normen durch staatliche Gerichte", 20 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1955) 603

Behr, Volker, "The Sales Convention in Europe: From Problems in Drafting to Problems in Practice", 17 Journal of Law and Commerce (1998) 263-299 [also available at http://www.cisg.law.pace.edu/cisg/biblio/behr.html]

Bianca, C. Massimo/ Bonell, M. Joachim (eds.), Commentary on the International Sales Law, Milan: Giuffrè, 1987

Bonell, Michael Joachim, "Vertragsverhandlungen und culpa in contrahendo nach dem Wiener Kaufrechtsübereinkommen", RIW (1990) 693-702

Boulanger, Jean, "Principes généraux du droit et droit positif", Le droit privé francais au milieu du Xxe siécle, pp. 51 et seq., Paris, 1950

von Caemmerer, Ernst/ Schlechtriem, Peter, Kommentar zum Einheitlichen UN-Kaufrecht, 2nd ed., München: Beck, 1995

Canaris, Claus-Wilhelm, Die Feststellung von Lücken im Gesetz: eine methodologische Studie über Voraussetzungen und Grenzen der richterlichen

Rechtsfortbildung praeter legem, 2nd ed., Berlin: Duncker und Humblot, 1983

Cheng, Bin, General Principles of Law as Applied by International Courts and Tribunals, London : Stevens, 1953

Dillard, Hardy Cross, "Some Aspects of Law and Diplomacy", Rev. Cours (1957) 449

Dölle, Hans, "Bemerkungen zu Art. 17 des Einheitsgesetzes über den internationalen Kauf dinglicher körperlicher Gegenstände", in Festschrift für Ficker, ed. by Murad Ferid, Frankfurt ; Berlin: Metzner, pp.138 et seq., 1967

Dölle, Hans, Kommentar zum Einheitlichen Kaufrecht, München: Beck, 1976

Dworkin, Ronald, Taking Rights Seriously, 1st ed., London: Duckworth, 1977

Enderlein, "Uniform Law and its Application by Judges and Arbitrators, General Report", pp.329-353 in: UNIDROIT (ed.), International Uniform Law in Practice [Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law (Rome 7-10 September 1987)], Oceana: New York, 1988

Enderlein, F./ Maskov, D./ Stargard, Internationales Kaufrecht, Berlin: Haufe, 1991

Engisch, Karl, Einfuehrung in das juristische Denken, 8th ed., Stuttgart; Berlin; Köln; Mainz: Kohlhammer, 1983

Ferrari, Franco, "Das Verhältnis zwischen UNIDROIT-Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonvention", JuristenZeitung 53 (1998) 9 et seq.

(Cited as "Verhältnis")

Ferrari, Franco, "Uniform Interpretation of the 1980 Uniform Sales Law", 24 Georgia Journal of International and Comparative Law (1994) 183-228 [also available at http://www.cisg.law.pace.edu/cisg/biblio/franco.html]

(Cited as "Uniform Interpretation")

Galston, Nina M./ Smit, Hans (ed.), International Sales: The United Nations Convention on Contracts for the International Sale of Goods, New York: Matthew Bender, 1984

Hellner, Jan, "Gap-filling by Analogy: Art. 7 of the U. N. Sales Convention in its Historical Context", in: Ramberg (ed.), Studies in International Law: Festskrift till Lars Hjerner, 219-233, Stockholm: Norstedts, 1990 [also available at http://www.cisg.law.pace.edu/cisg/text/hellner.html]

Herber, Rolf, Wiener UNCITRAL- Übereinkommen über internationale Warenkaufverträge vom 11 April 1980, 3rd ed.,Cologne: Bundesstelle für Aussenhandelsinformation,1988

Herber, Rolf/ Czerwenka, Beate, Internationales Kaufrecht, Kommentar zu dem Übereinkommen der Vereinten Nationen vom 11. April 1980 über

Verträge über den internationalen Warenkauf, Munich: Beck, 1991

Honnold, John O., Uniform Law for International Sales Under the 1980 United Nations Convention, 2nd ed, Deventer: Kluwer Law International, 1991

Honnold, John O., Documentary History of the Uniform Law for International Sales. The Studies, Deliberations and Decisions that led to the 1980 United Nations Convention with Introductions and Explanations, Deventer: Kluwer Law International, 1989

(Cited as Documentary History)

Keinath, Steffen, Der gute Glauben im UN-Kaufrecht, Thesis Konstanz, Hartung-Gorre: Konstanzer Schriften zur Rechtswissenschaft, 1997

Koneru, Phanesh, "The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles", 6 Minnesota Journal of Global Trade (1997) 105-152 [also available at http://www.cisg.law.pace.edu/cisg/biblio/koneru.html]

Koniger, Die Bestimmung der gesetzlichen Ziushöhe nach dem deutschen Internationalen Privatrecht, Berlin: Duncker & Humblot, 1997

Kramer, Ernst A., "Uniforme Interpretation von Einheitsprivatrecht -mit besonderer Berücksichtigung von Art. 7 UNKR", Juristische Blätter (1996) 137-151

Kropholler, Jan, Internationales Einheitsrecht, Allgemeine Lehren, Tübingen: Mohr, 1975

Larenz, Karl, Methodenlehre der Rechtswissenschaft, 6th ed., Berlin: Springer, 1991

Magnus, Ulrich, "Währungsfragen im Einheitlichen Kaufrecht. Zugleich ein Beitrag zu seiner Lückenfüllung und Auslegung", 53 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1989) 116-143

(cited as "Währungsfragen")

Magnus, Ulrich, "Die Allgemeinen Grundsätze im UN-Kaufrecht", 59 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1995) 469-494 [English text also available at http://www.cisg.law.pace.edu/cisg/biblio/magnus.html]

(cited as "General Principles")

Mann, F. A., "The Interpretation of Uniform Statutes", 62 Law Quaterly Review (1946) 279-291

(cited as "Interpretation")

Mann, F. A., "Einheitliches Kaufgesetz und Internationales Privatrecht", Juristen Zeitung (1975) 248

(cited as "Einheitliches Kaufgesetz")

Mann, F. A., "Uniform Statutes in English Law", 99 Law Quaterly Review (1983) 376-406

(cited as "Uniform Statutes")

Neumayer, Karl H./ Ming, Catherine, Convention de Vienne sur les contrats de vente internationale de marchandises. Commentaire, Lausanne: CEDIDAC, 1993

Povrzenic, Nives, "Interpretation and Gap-filling under the United Nations Convention on Contracts for the International Sale of Goods", available at http://www.cisg.law.pace.edu/cisg/text/gap-fill.html, 1997

Rabel, Ernst, "Der Entwurf eines inheitlichen Kaufgesetzes", 9 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1935) 1 et seq.

Reinhart, Gert, "Fälligkeitszinsen und UN-Kaufrecht", Praxis des internationalen Privat - und Verfahrensrechts, (1991) 376-379

(cited as "Fälligkeitszinsen")

Reinhart, Gert, UN-Kaufrecht, Kommentar zum Übereinkommen der Vereinten Nationen vom 11.April 1980 über Verträge über den internationalen Warenkauf, Heidelberg: C.F. Müller, 1991

(cited as "UN-Kaufrecht")

Riese, Otto, "Die Haager Konferenz über die internationale Vereinheitlichung des Kaufrechts vom 2. bis 25.April", 29 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1965) 1 et seq.

Rosenberg, Mark N., "The Vienna Convention: Uniformity in Interpretation for Gap-Filling - An Analysis and Application", 20 Australian Bus. L. Rev. (1992) 442-459

Schlechtriem, Peter, Internationales UN-Kaufrecht. Ein Studien- und Erläuterungsbuch zum Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG), Tübingen: Mohr, 1996

(cited as "UN-Kaufrecht")

Schlechtriem, Peter, "Good faith in German Law and in International Uniform Laws", Centro di studi e ricerche di diritto comparato e straniero(Rome, 1997) 1-21, available on the Internet courtesy of the Centre for Comparative and Foreign Law Studies (http://soi.cnr.it/~crdcs/crdcs/frames24.htm)

Schlechtriem, Peter, ed., Commentary on the UN Convention on the International Sale of Goods (CISG), Oxford, 1998

Schütz, Markus, UN-Kaufrecht und Culpa in contrahendo, (Thesis Heidelberg 1995), Frankfurt a.M.: Lang (1996)

von Staudinger, J., Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen ,2. Buch, Recht der Schuldverhältnisse: Wiener UN-Kaufrecht (CISG) U. Magnus; H. Honsell (ed.), 12th ed., Berlin: Sellier: de Gruyter, 1994


Table of Cases

Arbitration Award no. 6653/93 of the International Chamber of Commerce (1993), Journal du Droit 1993, p. 1040

Buchanan & Co. Ltd. V. Babco Forwarding and Shipping Ltd. [1977] 1 Q. B. 208 (C. A.)

ex parte Campell (1870) L. R. 5 Ch. 703

Carter v. Bradbeer [1975] 1 W.L.R. 1204, 1206 et seq.

Custom Made Commercial v. Stawa Metallbau case 288/92 [1994] ECR 2913

Fothergill v. Monarch Airlines [1980] 2 All. E. R. 696 (H.L.)

Lister v. Forth Dry Dock Co. Ltd. [1990]1 A. C. 546

Oberlandesgericht Düsseldorf, 17. Zivilsenat (02.07.1993) 17 U 73/93 (available at http://www.cisg-online.ch/cisg/urteile/74.htm)

Pepper v. Hart [1993] A. C. 593

Pickstone v. Freeman Plc. [1989] A. C. 66

Saficia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo Commercial (20.05.1991) (Argentina)


FOOTNOTES

1. According to the CISG a sale is international when its parties have their place of business in different countries, Art. 1(1) CISG.

2. However, a choice by the parties is accepted by private international laws of most of the countries.

3. United Nations Convention on Contracts for the International Sale of Goods (1980)

4. This can be said for the civil law codes.

5. Larenz, p.381; Kramer, p.148.

6. See for example Art.12(2) Diposizionni preliminarie al Codice civile (Italy, 1942): "Whenever a case cannot be decided on the basis of a precise provision of the written law, recourse shall be had to provisions governing similar or analogous cases or matters. If the case still remains doubtful, it shall be decided according to the general principles of the juridical order of the State." (translation by Cheng, p.407).

First in this way Art.7 of the Austrian Civil Code (1811): "If a case cannot be solved either by the text or the natural sense of a written provision, recourse shall be had to similar cases expressly provided for in other provisions of the law and to principles of analogous provisions. If the case still remains in doubt, it shall be decided according to the principles of natural law, taking into careful consideration all the circumstances of the case." (translation by Cheng, p.401).

Differently Art.6(2) of the Spanish Civil Code (1888): "When there is no provision exactly applicable to the point at issue, the custom of the place shall be applied, and, in the absence thereof, the general principles of law." (translation by Cheng, p.403).

7. There is no decision of a court dealing explicitly with this question. Eörsi in Galston/ Smit does not explicitly deal with the problem. From the list of general principles (2-12) it might be assumed that they regard analogy as not admissible. Koneru also does not deal with the question.

8. Hellner equates the method of filling gaps by analogy with the recourse to general principles, see the title "gap-filling by analogy" which shall characterise Art.7(2) CISG as a whole. This is the more surprising because he puts Art.7(2) in its historical context, quoting provisions (for example the first draft of the Bürgerliches Gesetzbuch) which explicitly distinguish between analogy and general principles. Honnold (marginal no. 102) also equates analogy with the recourse to general principles.

9. Herber/Czerwenka Art.7 marginal no. 7; Herber in Schlechtriem Art.7 marginal no. 34; Povrezenic, p. 8 of the print-out; Ferrari, Verhältnis, p. 11. They all distinguish between analogy and general principles.

10. Bonell (in Bianca/ Bonell, pp.78 et seq.) was the first to bring up the question. This is not astonishing with regard to Art.12 of the Italian code (see footnote ); Enderlein/Maskov , p. 64; Kramer, p. 148.

11. Bonell in Bianca/ Bonell, p. 80.

12. Enderlein/ Maskov, p. 64. Similar Kramer, p. 148.

13. This will not be discussed in greater detail because it is not relevant to the further examination. See Honnold, marginal no. 92.

14. First stated by James L.J. in ex parte Campell (1870) L.R. 5 Ch. 703,706.

15. Different opinion Ferrari, Uniform Interpretation, p. 4 of the print-out.

16. Schütz, p. 37; Diedrich RIW 93, p. 444; Kropholler, p. 278. Different opinion Herber Art. 7 marginal no. 9; Herber in von Caemmerer/ Schlechtriem Art.7 marginal no.26; Ferrari, Uniform Interpretation p.4 of the print-out.

17. The Convention was drafted in a manner to avoid normative concepts and use descriptive concepts instead, as far as possible; see Enderlein, p.339.

18. Mann, Interpretation, p. 290.

19. Bayer, pp.620,1; the principle of restrictive interpretation is nowadays attacked by the principle of "effet utile" which is very much used in the European Community (now European Union)

20. Honnold marginal no. 103.

21. However it must be noted that Mann has not changed his opinion with the change of statutory interpretation in England.

22. Bonell in Bianca/ Bonell, pp. 72,73.

23. On the English development see the statement of Lord Diplock Carter v. Bradbeer [1975] 1 W.L.R. 1204, 1206 et seq. that there is a trend away from the purely literal towards the purposive construction of statutory provisions. See also the evaluation by Forte, p. 100.

24. Advocated most elegantly by Lord Denning in Buchanan & Co. Ltd. v. Babco Forwarding and Shipping Ltd. [1977] 1 Q. B. 208 (C.A.), gaining ground in Pickstone v. Freeman Plc. [1989] A.C. 66, Lister v. Forth Dry Dock Co. Ltd. [1990] 1 A.C. 546 which led in the most recent case Pepper v. Hart [1993] A.C. 593 to the abandonment of the prohibition to consult the legislative history. See also Fothergill v. Monarch Airlines [1980] 2 All. E. R. 696 (H.L.).

25. Even in Germany there is not one method of interpretation.

26. Pepper v. Hart, p. 617.

27. On the last drawback see Kropholler, p. 304.

28. Kropholler, p. 260; Magnus in Staudinger Art. 7 marginal no. 30; Herber in Schlechtriem Art. 7 marginal no. 19.

29. Others distinguish only between three elements (the wording, the context, the legislative history) that all help to identify the ratio legis, meaning more or less the same. According to my view the last is the better description.

30. Honnold marginal no. 96.

31. Enderlein, p. 332.

32. Herber marginal no. 10; Magnus, Währungsfragen, p. 125.

33. Honnold marginal no. 88: "the only international setting".

34. Magnus, Währungsfragen, p. 125; Kropholler, p. 261.

35. The most famous case is the fact that the delegates could not agree on interest rates. See on the legislative history Honnold marginal no. 420. Schlechtriem states that in that case there is no gap; (Schlechtriem, UN-Kaufrecht, marginal no. 318.

36. If a common law lawyer strikes that as trivial, he is assured that German courts sometimes did go beyond the historical purpose.

37. The same lawyer who might argue that the method is by no means clear may take comfort in the fact that according to the prevailing view in German methodology no order between the elements exists (see Larenz, p. 345 with reference to other opinions). According to Esser's pessimistic view, German courts justify their decisions after having found the result by choosing the element which leads to a result they think is fair.

38. Engisch, footnote 166c.

39. Hager in von Caemmerer/ Schlechtriem Art. 57 marginal no. 4,11. It is difficult to determine the ratio legis of Art. 57(1) as the place of performance is not only relevant to the costs and the risk of payment, but also to jurisdiction. Art. 5(1) of the Brussels Convention on Jurisdiction and Enforcement in Civil and Commercial Matters in connection with Art. 57(1) CISG has the consequence that the seller can sue the buyer in the seller's country; confirmed by Custom Made Commercial v. Stawa Metallbau case 288/92 [1994] ECR 2913. Since the CISG does not deal with procedural questions, the effect that the place of performance is decisive with regard to jurisdiction, is not encompassed by the ratio legis of Art. 57(1) CISG.

40. Larenz, pp. 383 et seq.

41. ibid.

42. Whereas Engisch stresses that the difference between "Einzelanalogie" and "Gesamtanalogie" is only a matter of degree (p. 155), Canaris does not regard "Gesamtanalogie" as analogy, but as "induction"(p. 98). Canaris points out that analogy is logical reasoning from a particular provision to another particular rule (the rule which is created), whereas in the case of "Gesamtanalogie" a general rule is derived from more specific provisions (ibid.). However, Canaris admits that also "Einzelanalogie" can be construed as induction from a particular provision to a general thought (the ratio legis) and back to a mere particular rule (ibid.). The difference is that when the method "Einzelanalogie" is applied the more general thought is not expressed as a rule, but merely forms the basis for analogy.

43. In this sense: Enderlein/ Maskov, p.64; Kropholler regards "Gesamtanalogie" as one method to induce general principles, p. 298. Magnus points out that "single provisions might include legal thoughts which are subject to generalization and are to be applied in similar situations" (Magnus, General Principles, p. 6 of the print-out).

44. Hellner equates recourse to general principles with gap-filing by analogy because the general principles form the basis for analogy (p. 5 of the print-out).

45. German methodology distinguishes between analogy and the recourse to general principles (Larenz, p.381). So does Art. 12 of the Italian Code. Boulanger (France) distinguishes between "règles juridiques" and "principes généraux"(pp. 55f). Dworkin distinguishes between rules which "are applicable in an all-or-nothing fashion" and principles which are not (p. 24).

46. Magnus answers this question in the affirmative (Magnus, General Principles, pp. 10, 11 of the print-out).

47. Magnus answers this question in the affirmative (Magnus, General Principles, p. 10 of the print-out).

48. ibid., p. 5 of the print-out.

49. p. 919; Thus, the word "general" is tautologous.

50. The French version is similar to § 1 of the draft of the First Commission of the Bürgerliches Gesetzbuch which read: "If the code does not set forth a provision in respect of a certain legal relationship, the provisions laid down for analogous relationships shall be applied accordingly. In the absence of such a provision, the principles derived from the spirit of the legal order shall prevail."(translation from Hellner).

51. Yearbook I, p.182, no. 59 (Documentary History, p. 20). The proposal of Hungary in the Diplomatic Conference at The Hague with regard to ULIS to refer to analogy in the case of gaps makes only sense on the premise that general principles do not include analogy. The legislative history of Art. 7(2) CISG will be discussed in much greater detail later.

52. Arts. 19(2), 25,26, 34, 37, 48, 49, 51(1), 64 CISG; see Bonell in Bianca/ Bonell, p. 81.

53. Honnold marginal no. 95; Bonell in Bianca/ Bonell, pp. 80 et seq.

54. Bonell, p. 80; Magnus follows Bonell (Staudinger Art. 7 marginal no. 51); Ferrari, Uniform Interpretation, p. 10 of the print-out; not mentioned by Herber in von Caemmerer/ Schlechtriem Art. 7 marginal no. 36 et seq.

55. Bonell is ambiguous (Bianca/Bonell, p. 78). On the one hand he distinguishes between the two means of gap-filling (analogical application of a specific provisions of the Convention, general principles underlying the Convention as a whole). On the other hand he says that "the formula used in Art. 7(2) is to be understood in a broad sense to cover not only recourse to general principles but also reasoning from specific provisions by analogy" (ibid.). In the next sentence he continues: "The two approaches should however not be confused . . .".

The following authors distinguish between analogy and the recourse to general principles but they do not give a definition of general principles: Wahl in Dölle on Art. 17 ULIS marginal no. 51 et seq.; Reinhart Art. 7 marginal no. 6; Rosenberg, pp. 450 et seq.; Ferrari, Unifom Interpretation, p. 9 of the print-out; Kramer, p. 149 (distinction only possible in theory); Herber in Schlechtriem Art. 7 marginal no. 34.

No distinction: Honnold marginal no. 102; Magnus, General Principles, p. 6 of the print-out (it is interesting that in an earlier article on gap-filling Magnus justified analogy by the argumentum a fortiori: Währungsfragen, p.124); Hellner, p. 5 of the print-out. Enderlein/ Maskov, p. 64 regard "Gesamtanalogie" as directly admitted.

56. Larenz, p.343 (This is the standard textbook on German methodology of law); this is the prevailing view in Germany; different opinion Esser stating that there is no difference between gap-filling and interpretation , p. 259. It is admitted that interpretation and development are similar in respect of the trains of thought, but the distinction is still useful because of the special requirements for development of law.

57. Larenz, p.366.

58. There is no provision allowing this, but it has been practiced by the courts. Examples are: culpa in contrahendo, Sicherungsübereignung (transfer of movable property without traditio).

59. Larenz, p.381

60. See Art. 7 of the Austrian civil code from 1811.

61. See the list in Cheng, appendix II.

62. RabelsZ 9, p. 12 (my translation; the translation of Magnus is slightly different:… on which this Statute is based, Magnus (General principles), p.3 of the print-out; the French version is "…dont s'inspire la presente loi."

63. Rabel, p. 54 (translated by Magnus, General Princples, p. 3 of the print-out).

64. Bayer, p. 621.

65. Riese, p. 30.

66. Wahl in Dölle Art.17 marginal no. 9 with reference to the documents I could not get hold of.

67. Riese, p. 30; Wahl in Dölle Art. 17 marginal no. 9.

68. Dölle, pp. 139, 140; Wahl in Dölle Art. 17 marginal no. 72, 73.

69. Dölle, p. 141

70. Criticized by Mann: "How shall an average judge, who works at an average court with an average library identify the general principles?" (translated).

71. Yearbook I (YB), pp. 181-183 no. 56 -72 = Documentary History (Doc. Hist.), pp. 19-21.

72. YB I, p.182 No. 57 (= Doc. Hist., p.20).

73. ibid no. 59

74. ibid. no.63

75. There was no such provision under ULIS. It was felt necessary to include one.

76. YB I, p. 182 no.66.

77. ibid. no 70

78. ibid. p. 183, no. 72

79. ibid.

80. YB II, p.49 No. 85-88 (= Doc. Hist., p. 54).

81. ibid. no. 86

82. YB II, p.62 no. 127 (= Doc. Hist. p. 68).

83. ibid. no.131

84. ibid.

85. ibid. no. 132

86. ibid. no. 133

87. ibid. no. 137

88. YB III, p.92 (= Doc. Hist. p. 109); YB V, p. 53 (= Doc. Hist. p. 199) the brackets indicating that no final decision by the Working Group was reached.

89. YB VIII, p. 35 no. 146,147 (= Doc,. Hist. pp. 327, 328).

90. YB IX, p. 36 no. 60 (= Doc. Hist., p. 370).

91. The same opinion, in the Diplomatic conference: Löwe (chairman), Official Records (O. R.), p. 256 no. 20; Reishofer (Austria) ibid. no 23; Boggiano (Argentina) ibid. no. 27. Different opinion Gorbanov (Bulgaria) ibid. p. 255 no. 7

92. Galston / Smit (Eörsi) 2-10

93. O. R., p. 255 no. 10, 11 (Doc. Hist. p. 476)

94. ibid. no. 7-9. This is a uniform choice of law rule concerning gaps.

95. ibid. no 17

96. ibid. no. 16

97. Bonell holds the same opinion in his commentary (Bianca/ Bonell, p. 78).

98. O. R., p. 257, no. 35.

99. Schlechtriem, UN-Kaufrecht, p. 34, footnote 80; Enderlein / Maskov, p. 65, no. 9.2; Magnus in Staudinger Art. 7 marginal no. 40; Herber in Schlechtriem Art. 7 marginal no. 35. Honnold does not mention that method. It can be inferred from that that it is not admitted. Ferrari, Uniform Interpretation, p. 10 of the print-out, footnote 230.

100. Which countries have to be considered? - only the countries which were present when the Convention was drafted? - only the countries which ratified it? Has the interpretation to be changed when countries accede to it? The numbers that have ratified the Convention render these questions to be completely unrealistic. There is also the question whether a solution must be common to all countries, or whether a majority is sufficient, or whether the best solution should be adopted.

101. See Wahl in Dölle Art. 17 marginal no. 9

102. ibid.

103. See YB II, p. 62 no. 131 (= Doc. Hist., p. 68)

104. in the summaries available in the Yearbooks and Official Records which do not record word by word what has been said.

105. It was primarily regarded as public international law; nowadays the prevailing view is that it is primarily private law (see footnote)

106. See O. R. , p. 255 no. 17.

107. Nobody should see the problem better than the Italian delegate considering the clear distinction in the Italian code

108. Bonell in Bianca/ Bonell, p. 81. He distinguishes between principles which can be directly be applied and those which need further specification. According to him the principle of party autonomy can be directly applied (ibid.). I do not agree in that respect because the concrete rule that parties are able to determine their obligations and rights suffers exceptions, for example in the cases of incapacity, gross disparity (it does not matter that these questions are excluded from the scope of the Convention; they still constitute matters concerning a sale). Thus, the principle of party autonomy is not a rule in the sense that "a definite, detailed consequence…[is attached]…to a definite, detailed state of facts" (Pound, quoted in Dillard, pp. 477, 478). On the other hand there might be principles constituting a pillar of a statute which have the quality of rules (an example taken from a totally different area of law is the principle of nullum crimen, nulla poena sine lege). Therefore I do not agree with Dworkin either, who distinguishes rules which are applicable in an all-or-nothing fashion and principles which are not (p. 24). There are fundamental principles that do not suffer exceptions. Larenz calls them "rechtssatzförmige Prinzipien" (p. 480).

109. Whereas the identification of the principle is often discussed in detail, the specification is often neglected.

110. Not to be confused with the identification that the general principle is a pillar of the Convention.

111. Ferrari, Uniform Interretation, p. 10 of the print-out.

112. A sale only comes into existence when there is a contract.

113. Ferrari, Uniform Interpretation, p. 10 of the print-out.

114. See Bonell in Bianca/ Bonell, p.81.

115. See ante, p. 12 on the dispatch rule.

116. This controversial issue cannot be dealt with any further since it goes beyond the scope of this dissertation. For a god overview over the judgements and the academic view see Schlechtriem, footnote 2; exhaustive reference in Keinath, footnotes 517, 539, 546. The most convincing argument supporting the prevailing view that good faith is a principle relevant to the parties' behaviour is put forward by Koneru (pp. 12, 13 of the print-out): "…how else can a judge promote good faith in trade other than by requiring the parties to behave in good faith?"

117. See ante, p. 19, footnote 99.

118. It is arguable that there is no gap that can be filled according to Art. 7(2) CISG since it is clear from the legislative history that the delegates have seen the problem but could not agree on an interest rate (Reinhart, pp. 177, 178). In this sense Schlechtriem (UN-Kaufrecht), p. 179; Behr, p. 295; Herber in von Caemmerer/ Schlechtriem Art. 7 marginal no. 42. For the sake of illustration of the problems of which principle is relevant to a particular question, this problem shall be left out.

119. Arbitration award no. 6653/93 of the International Chamber of Commerce (1993), Journal du Droit International 1993, p. 1040: There it was stated that LIBOR (London Interbank Offered Rate) was currently used in international trade. A rate at which banks in the London market offer dollar deposits to each other (Thiele, p. 9 of the print-out).

Sacifia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo Commercial (20.05.1991), (Argentina). There it was stated that under international trading customs in Argentina (a contradiction in terms!) the interest for payments to be made in US currency was the Prime Rate (at that time 10 %)

120. Honnold, marginal no. 421.

121. The systematic order argues against the application of the principle of full compensation: Art. 78 is not under the section II (damages) but has a different section (III)(see Reinhart, Fälligkeitszinsen, p. 376). Furthermore, Art. 78 expressly stipulates to be independent from damages.

122. Neumayer/ Ming Art. 78 comment 2.

123. Against both proposed solutions it can be put forward that they do not provide a uniform substantial solution but are hidden choice of law rules (Behr, p. 296; Königer, p. 96).

124. Dworkin distinguishes principles from rules. According to him the former have the dimension of weight, which the later have not.

125. Bonell in Bianca/ Bonell, p. 81: "using standards which are accepted at a comparative level". Herber in von Caemmerer/ Schlechtriem Art. 7 marginal no. 18; Magnus in Staudinger Art. 7 marginal no. 24.

126. In addition to that the questions in footnote 100 (what legal systems shall be taken into account? Must the solution be common to all legal systems?) have to be answered now. Schütz argues in favour of a limitation to the major legal systems (p. 50). This is understandable since otherwise the task would be completely unrealistic; however, such a limitation is difficult to justify by theoretical arguments.

Bonell points out with regard to the question whether the solution must be common to all legal systems that a compromise between two extreme positions should be adopted (culpa in contrahendo, p. 701)

127. This is called "Funktionale Rechtsvergleichung" in German.

128. Schütz, p. 284. "Funktionale Rechtsvergleichung" is particularly important with regard to the principle of good faith. If Schlechtriem's tentative theses (his expression) are true that "there is no common stock of concrete rules and applications of the principle" because "it is mainly the shortcomings and gaps of a legal system or of a particular contract that require the employment of the principle of good faith and fair dealing", then it is particularly difficult to give content to that principle through comparative analysis. The theses seem to be true from a German perspective.

129. In German law the institute of culpa in contrahendo solves several problems. One problem is that a person is injured during the negotiations (the most famous case is that somebody slipped on a banana skin). This problem is not governed by the Convention since it is not typical of a sale (Schütz, p. 204). Another problem is the breaking-off of negotiations. Here it is arguable that this problem falls in the scope of the Convention because the Convention deals with formation of contract (Schütz, p. 221).

130. See for this approach Keinath, pp. 214ff.

131. Bonell, p. 701

132. Schütz, p. 287.

133. Nevertheless, there is often only one provision that might be applied by analogy. The content of the rule often suggests analogical application. See for example Art. 20(2) CISG.

134. See ante p. 1.

135. However, Art. 4(2) Convention on International Factoring, and Art. 6(2) Convention on International Financial Leasing adopted the wording of Art. 7(2) CISG.

136. Oberlandesgericht Düsseldorf, 17. Zivilsenat (02.07.1993) 17 U 73/93 (http://www.jura.uni-freiburg.de/ipr1/cisg/urteile/text/74.htr)

137. See ante p. 9.

138. The liability of the person owing damages is an additional reason that he should bear the risk and the costs.


Pace Law School Institute of International Commercial Law - Last updated December 21, 1999
Comments/Contributions

Go to Database Directory || Go to Bibliography