number
[...]
| CISG number |
|
Art. 9 |
80. The text of article 8, as adopted by the Working Group on the International Sale of Goods, is as follows:
"(1) The parties are bound by any usage to which they have agreed and by any practices which
they have established between themselves.
"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their
contract a usage of which the parties knew or had reason to know and which in international trade
is widely known to, and regularly observed by, parties to contracts of the type involved in the
particular trade concerned."
Relevance of usages
81. It was noted that article 8 had not retained the provision of paragraph (2) of article 9 of ULIS according to which, in the event of conflict with the uniform law, usages would prevail unless otherwise agreed by the parties.
82. However, the view was expressed that the proposed article 8 still attached too much importance to usages and that the unification of law could well become compromised unless it was made clear that usages were only an additional faction which, in the case of implied usages, become binding on the parties only if the usage was not in conflict with the contract or the Convention.
83. The prevalent opinion in the Committee was in favour of maintaining the proposed text of article 8 and the suggestion was therefore not retained.
New paragraph (3): Interpretation of trade terms
84. The Committee considered a proposal designed to reintroduce a provision along the lines of paragraph 3 of article 9 of ULIS which provides that:
"Where expressions, provisions or forms of contract commonly used in commercial practice are employed, they shall be interpreted according to the meaning usually given to them in the trade concerned."
The proposal was made on the ground that a distinction should be drawn between the application of usages, covered by paragraphs (1) and (2) of article 8, and the application of trade terms such as FOB or CIF, In respect of which there existed several interpretations.
85. The contrary view was expressed that the subject-matter of the proposed new paragraph was already covered by paragraphs (1) and (2) and was therefore unnecessary.
86. The Committee did not retain the proposal as a slight majority of views expressed were in favour of retaining the text proposed by the Working Group on the International Sale of Goods.
Decision
87. The Committee concludes that no change of substance is called for in respect of this article, now renumbered as article 7. It therefore recommends that the Commission should adopt the following text:
"Article 7
"(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.
"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned." [page 31]
[...]
Go to entire text of Report of the 1977 UNCITRAL Committee of the Whole I relating to draft Convention on International Sale of Goods
Pace Law School
Institute of International Commercial Law - Last updated July 13, 2007