Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
B. Interpretation of Statements and Conduct (Article 8)[115b]
As already established in the 1978 Draft Convention, the meaning of the statements or other legally relevant conduct of the parties is to be determined by their actual intent (Article 8(1)). Of course, this intent must have been known by or, in any case, recognizable to the addressee. If this intent is neither known nor recognizable, then the understanding of a reasonable person in the situation of the addressee is the controlling standard (Article 8(2)). The intent of a party or the understanding of a reasonable person depends on all of the facts and circumstances including those specially listed in the Convention, namely, negotiations, established practices between the parties, usages, and any subsequent conduct of [page 39] the parties (Article 8(3)). As Huber has already pointed out, the German jurist is here on the familiar ground of §§ 133 and 157 of the German Civil Code.
The Convention does not regulate the consequences of a discrepancy between the actual but unrecognizable intent of a party on the one hand, and, on the other, either the objective meaning of that party's statement in the sense of Article 8(2) or the other party's response to the first statement where the intent of the parties does not coincide. The regulation of such discrepancies is a question for domestic law. It appears, however, that Article 8(1) and (2) prevents a party's purely subjective intent from being decisive (secret reservations!) and prescribes the solution found in § 117 of the German Civil Code for a sham statement.[116a] As far as these deficiencies in intent are concerned, domestic law is replaced by the Convention.
The usages to be considered when discovering the intended and/or objective meaning of a statement presumably include, in contrast to those mentioned in Article 9(2), usages which are only local, national, or followed by a particular group of business people. It is important to note that the function of Article 8(3) is different from that of Article 9(2): It does not address gap-filling of the contract, but rather the interpretation of a party's statements. For the latter, according to Article 8(3), the particular circumstances are important, including usages that are possibly significant only to a party making the statements or to a reasonable person in the rule of the addressee. For example, a German who remains silent after having received a letter of confirmation can be understood to have expressed approval, regardless of whether Article 9(2) includes the German customs pertaining to letters of confirmation.[page 40]
* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.(...)
115b. See generally Eörsi, General Provisions at 2-13 for an illuminating analysis; see also Réczei, Fields of Application at 182-187.
116. Huber at 429-430. Due to the acceptance of a proposal by the Egyptian delegation (A/Conf. 97/C.1/L.43= O.R. 88), the formulation of Article 8(2) corresponds more than did the Draft to the standpoint of the objective addressee from German law: the person "standing in the shoes of the addressee." See A/Conf. 97/C.1/SR.6 at 4-5 (= O.R. 260) (discussion in the First Committee).
116a. A sham agreement is void, while the contract really intended by the parties and hidden "under" the sham statement may be valid.
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