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Article 8. Interpretation of Party's Statements or other Conduct

TEXT OF ARTICLE 8

(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.

(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.

(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

8A Intent of party making statement or engaging in conduct (art. 8(1))

8A1 Relevant if other party "knows" or "could not have been unaware"

8B Interpretation based on objective standards (art. 8(2)):

8B1 Understanding of reasonable person of same kind as other party

8B2 In the same circumstances as the other party

8C Interpretation in light of surrounding circumstances (art. 8(3))

8C1 Negotiations between parties to contract

8C2 Practices established by the parties; agreements (see art. 9)

8C3 Usages (see art. 9)

8C4 Conduct subsequent to agreement


DESCRIPTORS

Intent ; Reasonable person, understanding of ; Parol evidence rule


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 41 cases in its Digest of Art. 8 case law:

Australia      1           Germany       16           Netherlands         2
Austria 6 Hungary   1 Switzerland   5
Belgium 1 ICC   2 United States   6
France 2 TOTAL 41

Presented below is a composite list of Art. 8 cases reporting UNCITRAL Digest cases and other Art. 8 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 14 January 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access from this list UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars, to the extent available.

For applications of Article 8 in the context of the Parol Evidence Rule, Plain Meaning Rule and Contract Merger Clauses, see CISG-AC Opinion no 3, opinion endorsed by Peter Schlechtriem (CISG-AC Chair); Eric E. Bergsten, Michael Joachim Bonell, Alejandro M. Garro, Roy M. Goode, Sergei N. Lebedev, Pilar Perales Viscasillas, Jan Ramberg, Ingeborg Schwenzer, Hiroo Sono, Claude Witz (CISG-AC Members); Loukas A. Mistelis (CISG-AC Secretary).

There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website.
 

Germany 24 July 2009 Oberlandesgericht [Appellate Court] Celle

Switzerland 26 June 2009 Bundesgerichtshof [Federal Supreme Court] (Graffiti preservative case) [translation available]

Brazil 20 May 2009 Appellate Court Rio Grande do Sul (Electro-erosion machine case) [translation available]

Switzerland 18 May 2009 Bundesgerichtshof [Federal Supreme Court] (Packaging machine case)

United States 26 March 2009 U.S. District Court [Ohio] (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH)

Netherlands 11 February 2009 Rechtsbank [District Court] Arnhem (Tree case) 8B [translation available]

Netherlands 3 February 2009 Gerechtshof [Appellate Court] Leeuwarden (JPB Industrial Services B.V. v. Buchen Industrial Services N.V.) 8A ; 8B ; 8C [translation available]

Netherlands 21 January 2009 Rechtsbank [District Court] Utrecht ([bedrijf A] GmbH v. Quote Foodproducts B.V.)

Germany 14 January 2009 Oberlandesgericht [Appellate Court] München
 

Switzerland 26 November 2008 Handelsgericht [Commercial Court] Aargau (Fruit and vegetables case) 8A ; 8B ; 8C [translation available]

Germany 18 November 2008 Oberlandesgericht [Appellate Court] Brandenburg (Beer case) 8A ; 8B ; 8C [translation available]

Netherlands 14 October 2008 Gerechtshof [Appellate Court] Arnhem (Hoogenboom BVBA v. Njmegen B.V.) 8A ; 8B ; 8C [abstract available]

Netherlands 7 October 2008 Gerechtshof [Appellate Court] Arnhem (Arens Sondermachinen GmbH v. Smit Draad / Draad Nijmegen B.V.) 8A ; 8B ; 8C [abstract available]

Switzerland 26 September 2008 Appellationsgericht [Appellate Court] Basel-Stadt (Packaging machine case)

Serbia 15 July 2008 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Milk packaging equipment case) 8C [translation available]

Slovak Republic 19 June 2008 Supreme Court (Health care products case) 8A ; 8B ; 8C [translation available]

Germany 12 June 2008 Landgericht [District Court] Landshut (Metalic slabs case) 8A [translation available]

Netherlands 22 May 2008 Gerechtshof [Appellate Court] 's-Gravenhage (Tes Installatietechniek B.V. v. Miron N.V and R. Dillen N.V.)

United States 9 May 2008 U.S. District Court [Delaware] (Solae, LLC v. Hershey Canada, Inc.) 8C

Slovak Republic 30 April 2008 Supreme Court (Health care products case) 8A ; 8B ; 8C [translation available]

Germany 31 March 2008 Oberlandesgericht [Appellate Court] Stuttgart (Automobile case) 8C [translation available]

Australia 14 March 2008 Supreme Court of South Australia (Vetreria Etruscia S.r.l. v Kingston Estate Wines Pty Ltd)

Netherlands 27 February 2008 Rechtbank [District Court] Breda (Interland Chemie BV v. Tessenderlo Chemie NV)

Switzerland 5 February 2008 Handelsgericht [Commercial Court] Aargau (Fruit and vegetables case)

Germany 25 January 2008 Oberlandesgericht [Appellate Court] Hamburg (Café inventory case) 8B [translation available]

Spain 17 January 2008 Supreme Court (Used automobiles case) 8C [translation available]
 

Spain 27 December 2007 Audiencia Provincial [Appellate Court] Navarra (Case involving machine to repair bricks) 8A ; 8C [translation available]

Austria 18 December 2007 Oberlandesgericht [Appellate Court] Innsbruck (Steel bars case) [translation available]

Germany 27 November 2007 Bundesgerichtshof [Federal Supreme Court] 8A [translation available]

Italy 21 November 2007 Tribunale [District Court] Rovereto (Takap B.V. v. Europlay S.r.l.)

Netherlands 13 November 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (Adex International Ltd v. First International Computer Europe B.V.)

Switzerland 13 November 2007 Bundesgericht [Supreme Court]

United States 8 November 2007 Federal Appellate Court [9th Circuit] (Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.) 8C

Australia 12 October 2007 District Court of South Australia (Kingston Estate Wines Pty Ltd v Vetreria Etruscia S.r.l.)

Serbia 1 October 2007 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Timber case) 8C [translation available]

United States 28 September 2007 Federal District Court [Kansas] (Guang Dong Light Headgear Factory Co. Ltd. v. ACI International, Inc.). Art. 8 8A ; 8B

Germany 2 July 2007 Oberlandesgericht [Appellate Court] Köln (Cutter head case)

United States 27 June 2007 California Appellate Court (Orthotec, LLC v. Eurosurgical S.A.) 8C

Germany 11 June 2007 Oberlandesgericht [Appellate Court] Dresden (Airbag parts case) 8C [translation available]

Netherlands 29 May 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch 8C [translation available]

Netherlands 23 May 2007 Rechtbank [District Court] Breda (Interland Chemie B.V. v. Tessenderlo Chemie NV)

Switzerland 27 April 2007 Tribunal cantonal [Appellate Court] Valais (Oven case) 8C [translation available]

Belgium 16 April 2007 Hof van Beroep [Appellate Court] Ghent (Dat-Schaub International a/s v. Kipco Damaco N.V.) 8A ; 8B ; 8C [translation available]

Spain 20 February 2007 Appellate Court Madrid (Sunprojuice DK, Als v. San Sebastian, S.c.A.) 8B [translation available]

France 13 February 2007 Cour de cassation [Supreme Court] (Computer motherboard case) [translation available]

Germany 17 January 2007 Oberlandesgericht [Appellate Court] Saarbrücken (Marble panel case) 8C [translation available]

Netherlands 17 January 2007 Rechtbank [District Court] Arnhem (Hibro Compensatoren B.V. v. Trelleborg Industri Aktiebolag) 8C [translation available]

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 8C
 

United Kingdom 18 December 2006 Court of Appeal (Civil Division) (The Square Mile Partnership Ltd v Fitzmaurice McCall Ltd) 8C

Germany 12 December 2006 Landgericht [District Court] Coburg (Plants case) 8C [translation available]

Switzerland 12 December 2006 Obergericht [Appellate Court] Thurgau (Building materials case) 8A ; 8B ; 8C [translation available]

Switzerland 8 November 2006 Zivilgericht [Civil Court] Basel-Stadt (Packaging machine case)

United States 12 September 2006 Federal Appellate Court [11th Circuit Court of Appeals] (Treibacher Industrie, A.G. v. Allegheny Technologies, Inc.) 8C ; 8C2 ; 8C3

China September 2006 CIETAC Arbitration Award [CISG 2006/08] (Air purifier case) 8A [translation available]

Italy 24 August 2006 Tribunale [District Court] di Rovereto (Euroflash Impression S.a.s. v. Arconvert S.p.A.)

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH) 8C

Germany 29 June 2006 Landgericht [District Court] Gera (Laser system case) 8A [translation available]

Germany 15 May 2006 Oberlandesgericht [Appellate Court] Stuttgart 8C [translation available]

Switzerland 12 May 2006 Cour de justice [Appellate Court] Genève (Office furniture case) 8A ; 8B ; 8C [translation available]

Denmark 3 May 2006 Højesteret [Supreme Court] (Casting moulds case)

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 8A [translation available]

Russia 13 April 2006 Arbitration Award 105/2005 8C [translation available]

Germany 3 April 2006 Oberlandesgericht [Appellate Court] Köln (Strawberry plants case) 8A [translation available]

Czech Republic 29 March 2006 Supreme Court (Carpet case) [translation available]

United Kingdom 17 February 2006 Court of Appeal (Civil Division) (ProForce Recruit Ltd v Rugby Group Ltd) 8C

Russia 13 February 2006 Arbitration Award 102/2005 8A [translation available]

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 8A [translation available]

Russia 20 January 2006 Arbitration Award 84/2005 [translation in process]

Russia 13 January 2006 Arbitration Award 137/2004 8A [translation available]
 

China 7 December 2005 CIETAC Arbitration Award [CISG/2005/05] (Heaters case) 8A ; 8B ; 8C [translation available]

Germany 6 December 2005 Oberlandesgericht [Appellate Court] Hamm (Used motorcar parts case) 8C [translation available]

China 9 November 2005 CIETAC Arbitration Award [CISG/2005/04] (DVD machines case) 8C [translation available]

Canada 28 October 2005 Superior Court of Justice, Ontario (Chateau des Charmes Ltd v. Sabaté USA Inc. et al.)

Switzerland 19 September 2005 Kantonsgericht Wallis / Tribunal cantonal Valais [Canton Appellate Court]

Austria 31 August 2005 Oberster Gerichtshof [Supreme Court] (Tantalum case) 8A ; 8B ; 8C [translation available]

China 18 August 2005 CIETAC Arbitration Award [CISG 2005/16] (Automatic production line case) 8C [translation available]

Austria 8 August 2005 Oberlandesgericht [Appellate Court] Linz (Spacers for insulation glass case) 8C [translation available]

Germany 3 August 2005 Landgericht [District Court] Neubrandenburg (Pitted sour cherries case) 8A ; 8B ; 8C [translation available]

Switzerland 5 July 2005 Obergericht [Appellate Court] Zug (Diesel oil case) 8A ; 8C [translation available]

Belgium 1 June 2005 Rechtbank van Koophandel [District Court] Hasselt

Russia 27 May 2005 Arbitration Award 95/2004 8C [translation available]

United States 27 April 2005 U.S. District Court [Alabama] (Treibacher Industrie, A.G. v. TDY Industries, Inc.) 8A ; 8C

Switzerland 5 April 2005 Bundesgericht [Supreme Court] 8A ; 8B ; 8C [translation available]

China April 2005 CIETAC Arbitration Award [CISG 2005/22] (Caprolactum case) 8C [translation available]

Austria 23 March 2005 Oberlandesgericht [Appellate Court] Linz (Conveyor band case) 8A ; 8B ; 8C [translation available]

Mexico 10 March 2005 Primer Tribunal Colegiado en Materia Civil del Primer Circuito [Appellate Court] (Kolmar Petrochemicals v. Idesa Petroquímica) 8A ; 8B ; 8C [translation available]

Netherlands 10 February 2005 Netherland Arbitration Institute (interim award) 8C [English text]

Austria 1 February 2005 Oberlandesgericht [Appellate Court] Innsbruck (Powdered tantalum case) 8B ; 8C [translation available]

Netherlands 28 January 2005 Hoge Raad [Supreme Court] 8B

Austria 26 January 2005 Oberster Gerichtshof [Supreme Court] 8A [translation available]

Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) 8C [translation available]
 

Austria 14 December 2004 Oberster Gerichtshof [Supreme Court] 8C2 [translation available]

China 2 December 2004 Higher People's Court [Appellate Court] of Jiangsu Province (China Changzhou Kairui Weaving and Printing Company v. Taiwan Junlong Machinery Company)

Switzerland 2 December 2004 Kantonsgericht [District Court] Zug (Dextrose case) [translation available]

Russia 12 November 2004 Arbitration Award 174/2003

Switzerland 3 November 2004 Tribunal Cantonal [Appellate Court] Jura 8A [translation available]

Switzerland 11 October 2004 Kantonsgericht [Canton Court] Freiburg 8A ; 8B ; 8C [translation available]

Germany 6 October 2004 Oberlandesgericht [Appellate Court] Frankfurt 8C [translation available]

Mexico 5 October 2004 Juicio ordinario mercantile [Commercial Court] Federal District (Kolmar Petrochemicals Americas, Inc. v. Idesa Petroquímíca S.A. de C.V.)

Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) 8A [translation available]

Germany 6 September 2004 Landgericht [District Court] Hamburg 8C [translation available]

Germany 20 July 2004 Oberlandesgericht [Appellate Court] Karlsruhe (Shoes case) [translation available]

France 30 June 2004 Cour de Cassation [Supreme Court] 8C [translation available]

Russia 25 June 2004 Arbitration Award 120/2003 8A [translation available]

Russia 9 June 2004 Arbitration Award 125/2003 [translation available]

Spain 28 April 2004 Audiencia Provincial [Appellate Court] Barcelona 8B [translation available]

Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 88/03] 8C [translation available]

Russia 9 April 2004 Arbitration Award 129/2003 8A [translation available]

Netherlands 17 March 2004 Rechtbank [District Court] Arnhem 8A [translation available]

Germany 30 January 2004 Oberlandesgericht [Appellate Court] Düsseldorf 8B ; 8C [translation available]

Netherlands 27 January 2004 Gerechtshof [Appellate Court] 's-Hertogenbosch

Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen [translation available]

China 14 January 2004 CIETAC Arbitration Award [CISG/2004/01] (Printing machine case) 8C [translation available]

Germany 8 January 2004 Landgericht [District Court] Trier 8A [translation available]
 

Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 8A ; 8B ; 8C [translation available]

Germany 12 December 2003 Landgericht [District Court] Bielefeld 8A [translation available]

Switzerland 11 December 2003 Kantonsgericht [District Court] Zug 8A [detailed abstract available]

Switzerland 13 November 2003 Bundesgericht [Supreme Court]

Switzerland 29 October 2003 Tribunale d’appello [Appellate Court] Lugano, Cantone del Ticino 8A ; 8B ; 8C [translation available]

Switzerland 24 October 2003 Handelsgericht [Commercial Court] Zürich 8C [translation available]

China 6 October 2003 CIETAC Arbitration Award [CISG 2003/11] (Cutting machine case) 8C [translation available]

France 10 September 2003 Cour d'appel [Appellate Court] Paris 8C [translation available]

Switzerland 22 August 2003 Appellationsgericht [Appellate Court] Basel 8A [detailed abstract available]

Canada 21 August 2003 British Columbia Supreme Court (Mansonville v. Kurtz) 8A ; 8C

Switzerland 4 August 2003 Bundesgericht [Federal Supreme Court] 8A [translation available]

Germany 25 July 2003 Oberlandesgericht [Appellate Court] Düsseldorf 8A ; 8C [translation available]

China 3 June 2003 CIETAC Arbitration Award [CISG/2003/01] (Clothes case) 8A [translation available]

Belgium 26 May 2003 Rechtbank van Koophandel [Commercial Court] Hasselt (BV Europa-Koyo v. NV Tenneco Automotive Europe)

United States 5 May 2003 U.S. Circuit Court of Appeals [9th Cir.] (Chateau des Charmes Wines v. Sabate USA) 8C

Netherlands 23 April 2003 Gerechtshof [Appellate Court] 's-Gravenhage 8A [translation available]

Netherlands 22 January 2003 Rechtbank [District Court] Zwolle

ICC 2003 International Court of Arbitration, Case 11849 (Fashion products case) 8C [English text]
 

China 27 December 2002 CIETAC Arbitration Award [CISG 2002/29] (Medicine manufacturing equipment case) 8C [translation available]

Russia 20 December 2002 Arbitration Court [Appellate Court] for the Volgo-Vyatsky Region 8C [translation available]

China 18 December 2002 CIETAC Arbitration Award [CISG 2002/14] (Sausage casing case) 8C [translation available]

Belgium 16 December 2002 Hof van Beroep [Appellate Court] Antwerpen 8C [translation available]

Switzerland 12 December 2002 Kantonsgericht [District Court] Zug 8A [translation available]

China 8 November 2002 CIETAC Arbitration Award [CISG/2002/05] (Canned asparagus case) 8C [translation available]

Germany 29 October 2002 Oberlandesgericht [Appellate Court] Schleswig-Holstein (Stallion case) 8A ; 8B ; 8C [translation available]

Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 8C [English text]

China 10 October 2002 CIETAC Arbitration Award [CISG 2002/10] (Curtain case) 8C [translation available]

China 23 September 2002 CIETAC Arbitration Award [CISG 2002/15] (Beech log case) 8C [translation available]

China 18 September 2002 CIETAC Arbitration Award [CISG 2002/23] (Elevator parts case) 8C [translation available]

China 9 September 2002 CIETAC Arbitration Award [CISG 2002/22] (Elevator case) 8C [translation available]

United States 21 August 2002 U.S. District Court [Southern Dist. NY (Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc.) 8A ; 8C

China 18 July 2002 CIETAC Arbitration Award [CISG 2002/20] (Textile equipment case) 8C [translation available]

Austria 11 July 2002 Oberster Gerichtshof [Supreme Court]

United States 21 June 2002 U.S. Circuit Court of Appeals [4th Cir.] (Schmitz-Werke v. Rockland) 8C

Belgium 15 May 2002 Hof van Beroep [Appellate Court] Gent 8C [translation available]

Russia 13 May 2002 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/2790-02 8C [translation available]

United States 10 May 2002 U.S. District Court [Southern Dist. NY] (Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc.) 8A ; 8C

New Zealand 27 March 2002 High Court, Auckland (Thompson v. Cameron) 8C

United States 26 March 2002 U.S District Court [Southern Dist. NY] (St. Paul Insurance v. Neuromed) 8A ; 8B ; 8C

France 19 March 2002 Cour de Cassation [Supreme Court]

Austria 7 March 2002 Oberlandesgericht [Appellate Court] Graz 8A [translation available]

Denmark 31 January 2002 Sø og Handelsretten [Maritime Commercial Court] 8A ; 8B ; 8C [translation available]

* Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] 8A [translation available]
 

* United States 17 December 2001 U.S. District Court [Michigan] (Shuttle Packaging v. Tsonakis) 8C

Germany 12 November 2001 Oberlandesgericht [Appellate Court] Hamm (Memory module case) 8A [translation available]

* Germany 31 October 2001 Bundesgerichtshof [Federal Supreme Court] 8B1 ; 8C [translation available]

Austria 22 October 2001 Oberster Gerichtshof [Supreme Court] [1 Ob 49/01i] 8A ; 8B ; 8C [translation available]

Austria 22 October 2001 Oberster Gerichtshof [Supreme Court] [1 Ob 77/01gc] 8A [translation available]

Russia 17 September 2001 Arbitration Award No. 16/1999 8A [translation available]

United States 28 August 2001 U.S. District Court [Illinois) (Zapata v. Hearthside) 8C

* Germany 16 July 2001 Oberlandesgericht [Appellate Court] Köln 8A ; 8B [translation available]

Serbia 25 May 2001 Foreign Trade Court of Arbitration, Yugoslav Chamber of Commerce (Berries case) 8B ; 8C4 [translation available]

United States 10 April 2001 U.S. Federal Bankruptcy Court [Ohio] (Victoria Alloys v. Fortis Bank)

Denmark 15 February 2001 Højesteret [Supreme Court] [translation available]

Germany 31 January 2001 Landgericht [District Court] Hamburg (Frozen pork and apple blinies case) 8A [translation available]

United States 30 January 2001 U.S. District Court [California] (Supermicro Computer v. Digitechnic)
 

* Switzerland 22 December 2000 Bundesgericht [Federal Supreme Court] 8B [translation available]

New Zealand 27 November 2000 Court of Appeal (Hideo Yoshimoto v. Canterbury Golf International Ltd) 8C

Finland 26 October 2000 Helsingin hoviokeus [Helsinki Court of Appeals] 8A ; 8B ; 8C [translation available]

Germany 13 September 2000 Landgericht [District Court] Memmingen (Plastic filter plate case) 8C [translation available]

Switzerland 15 September 2000 Bundesgericht [Federal Supreme Court] [4C.105/2000] 8C [translation available]

* Germany 30 August 2000 Oberlandesgericht [Appellate Court] Frankfurt 8B [translation available]

China 31 March 2000 CIETAC Arbitration Award [CISG 2000/16] (Methyl methacrylate monomer case) [translation available]

* Austria 9 March 2000 Oberster Gerichtshof [Supreme Court] 8C [translation available]

Germany 28 February 2000 Oberlandesgericht [Appellate Court] Stuttgart [translation available]

Russia 24 January 2000 Arbitration award 54/1999 8A ; 8B ; 8C [translation available]

China 19 January 2000 CIETAC Arbitration Award [CISG/2000/08] (Steel cylinders case) 8C [translation available]

China 7 January 2000 CIETAC Arbitration Award [CISG/2000/06] (Cysteine case) 8A [translation available]

ICC 2000 International Court of Arbitration, Case 10329 8A [English text]
 

China 31 December 1999 CIETAC Arbitration Award [translation available]

* Germany 27 December 1999 Oberlandesgericht [Appellate Court] Dresden 8B ; 8C [translation available]

United States 7 December 1999 Federal District Court [Illinois] (Magellan International v. Salzgitter Handel) 8B ; 8C

* France 21 October 1999 Cour d'appel [Appellate Court] Grenoble 8A [translation available]

Netherlands 14 October 1999 Arrondissementsrechtbank [District Court] Rotterdam 8A [translation available]

Switzerland 5 October 1999 Obergericht [Appellate Court] Basel 8C [translation available]

ICC August 1999 International Court of Arbitration, Case 9083 8A ; 8C [translation available]

Switzerland 11 June 1999 Handelsgericht [Commercial Court] Aargau 8C [translation available]

Russia 7 June 1999 Arbitration award 238/1998 8A1 [translation available]

* Belgium 2 June 1999 Rechtbank van Koophandel [District Court] Hasselt

China June 1999 PRC Arbitration award 8A [translation available]

ICC June 1999 International Court of Arbitration, Case 9187 8A [English text]

China 20 May 1999 CIETAC Arbitration Award [CISG/1999/25] (Waste aluminum ingots case) 8A [translation available]

Russia 16 April 1999 Arbitration award 152/1998 8A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/17] (Electric heater case) 8C [translation available]

* Germany 19 March 1999 Landgericht [District Court] Zwickau

Austria 11 March 1999 Oberster Gerichtshof [Supreme Court] 8A [translation available]

Austria 24 February 1999 Oberlandesgericht [Appellate Court] Graz (Military weapons case) 8A [translation added]

Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich [translation available]

China 13 January 1999 CIETAC Arbitration Award [CISG/1999/05] (Latex gloves case) 8C [translation available]
 

Russia 30 December 1998 Arbitration award 62/1998 8C [translation available]

Germany 29 December 1998 Hamburg Arbitration award [translation available]

Russia 18 December 1998 Arbitration award 288/1997 8A [translation available]

Austria 15 December 1998 Oberster Gerichtshof [Supreme Court] [translation available]

China 15 December 1998 CIETAC Arbitration Award [CISG/1998/09] (Shirt case) 8A [translation available]

Belgium 2 December 1998 Rechtbank van Koophandel [District Court] Hasselt

* Switzerland 30 November 1998 Handelsgericht [Commercial Court] Zürich [translation available]

* Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] 8B ; 8C [translation available]

Germany 24 November 1998 Landgericht [District Court] Bielefeld 8B [translation available]

* United States 27 October 1998 Federal District Court [Illinois] (Mitchell Aircraft Spares v. European Aircraft Service) 8A ; 8B ; 8C

Russia 22 October 1998 Arbitration award 196/1997 8A ; 8C [translation available]

Germany 5 October 1998 Oberlandesgericht [Appellate Court] Hamburg 8A ; 8B [translation available]

Germany 22 September 1998 Oberlandesgericht [Appellate Court] Oldenburg 8A [translation available]

* United States 29 June 1998 Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino) 8A ; 8B ; 8C

Germany 23 June 1998 Oberlandesgericht [Appellate Court] Hamm 8A [translation available]

Germany 8 May 1998 Landgericht [District Court] Aurich

* United States 6 April 1998 Federal District Court [Southern Dist. NY] (Calzaturificio Claudia v. Olivieri Footwear) 8C

Germany 31 March 1998 Oberlandesgericht [Appellate Court] Zweibrücken (Vine wax case) 8C [translation available]

Russia 2 March 1998 Arbitration award 201/1997

ICC March 1998 International Court of Arbitration, Case 9117 [English text]

Switzerland 23 January 1998 Kantonsgericht [District Court] Freiburg 8A [translation available]

China 22 January 1998 CIETAC Arbitration Award [CISG/1998/02] (Hot-rolled steel plate case) 8A [translation available]

Germany 21 January 1998 Oberlandesgericht [Appellate Court] München (Insulating materials case) 8C [translation available]
 

Austria 10 December 1997 Vienna Arbitration award S 2/97 8B [translation available]

Switzerland 3 December 1997 Zivilgericht [District Court] Basel [translation available]

* Netherlands 7 November 1997 Hoge Raad [Supreme Court] 8A ; 8B

China 13 October 1997 CIETAC Arbitration Award [CISG/1997/30] (Printing machine case) 8A [translation available]

China 8 October 1997 CIETAC Arbitration Award [CISG/1997/29] (Industrial tallow case) 8C [translation available]

Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 8B [translation available]

Switzerland 26 September 1997 Handelsgericht [Commercial Court] Aargau (Cutlery case) [translation available]

Germany 18 September 1997 Landgericht [District Court] Hamburg

* Germany 15 September 1997 Landgericht [District Court] Heilbronn 8A [translation available]

* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] 8B [translation available]

Germany 4 July 1997 Oberlandesgericht [Appellate Court] Hamburg 8A [translation available]

* Switzerland 3 July 1997 Bezirksgericht [District Court] St. Gallen 8C [translation available]

Russia 13 May 1997 Arbitration award 3/1996 8A [translation available]

* Austria 24 April 1997 Oberster Gerichtshof [Supreme Court] (Processing plant case) [translation available]

China 23 April 1997 CIETAC Arbitration Award [CISG/1997/07] (Peanut case) 8A [translation available]

Switzerland 11 April 1997 Bezirksgericht [District Court] Unterrheintal

* Austria 20 March 1997 Oberster Gerichtshof [Supreme Court] (Mono ammonium phosphate case) 8B ; 8C [translation available]

Austria 4 March 1997 Oberlandesgericht [Appellate Court] Wien (Vienna)

Russia 21 February 1997 Arbitration award 373/1995 8A1

* Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz 8C4 [translation available]

China 1997 Shanghai Higher People's Court 8A [translation available]
 

New Zealand 19 December 1996 Court of Appeal (Attorney General v. Dreux) 8C

China 18 December 1996 CIETAC Arbitration Award [CISG/1996/56] (Lentil case) [translation available]

* Germany 11 December 1996 Bundesgerichtshof [Federal Supreme Court] 8A ; 8C [translation available]

ICC December 1996 International Court of Arbitration, Case 8482 8A [English text]

Austria 7 November 1996 Oberlandesgericht [Appellate Court] Wien (Vienna)

Austria 25 October 1996 Oberlandesgericht [Appellate Court] Wien (Vienna) [3R 174/96x]

France 23 October 1996 Cour d'appel [Appellate Court] Grenoble 8C [translation available]

China 18 September 1996 CIETAC Arbitration Award [CISG/1996/43] (Agricultural products case) 8C [translation available]

China 6 September 1996 CIETAC Arbitration Award [CISG/1996/42] (Engines case) 8C [translation available]

* Germany 21 June 1996 Hamburg Arbitration award 8B1 [translation available]

Switzerland 31 May 1996 Arbitration ZHK 273/1995 [Zürich Chamber of Commerce] 8C [English text]

China 10 May 1996 CIETAC Arbitration Award [CISG/1996/22] (Hot-rolled steel plates case) 8C [translation available]

Viet Nam 5 April 1996 People's Supreme Court [Appeal Division] Ho Chi Minh City [translation available]

Germany 3 April 1996 Bundesgerichtshof [Supreme Court] [translation available]

* Germany 21 March 1996 Hamburg Arbitration award 8C [translation available]

China 8 March 1996 CIETAC Arbitration Award [CISG/1996/13] (Horsebean case) 8C [translation available]

Germany 28 February 1996 Landgericht [District Court] Oldenburg (Egg case) 8B [translation available]

* Germany 15 February 1996 Landgericht [District Court] Kassel [11 O 4187/95] 8A ; 8B ; 8C [translation available]

* Austria 6 February 1996 Oberster Gerichtshof [Supreme Court] 8C [translation available]

China 5 February 1996 CIETAC Arbitration Award [CISG/1996/07] (Antimony ingot case) 8A [translation available]

China 30 January 1996 CIETAC Arbitration Award [CISG/1996/05] (Compound fertilizer case) 8A [translation available]
 

Switzerland 19 December 1995 Obergericht [Appellate Court] Thurgau (Cloth case) 8C [translation available]

* Switzerland 5 December 1995 Handelsgericht [Commercial Court] St. Gallen (Computer hardware devices case) 8A [translation available]

Russia 1 December 1995 Arbitration award 22/1995 8C [translation available]

Russia 22 November 1995 Arbitration award 99/1994 8A ; 8C [translation available]

* Hungary 17 November 1995 Budapest Arbitration award Vb 94124 8C

Germany 21 September 1995 Landgericht [District Court] Kassel (Wooden poles case) 8C [translation available]

Belgium 19 September 1995 Tribunal de commerce [District Court] Nivelles 8A ; 8C [translation available]

France 13 September 1995 Cour d'appel [Appellate Court] Grenoble 8A [translation available]

Netherlands 22 August 1995 Gerechtshof [Appellate Court] Arnhem 8C

Germany 21 August 1995 Landgericht [District Court] Ellwangen 8C [translation available]

Germany 5 July 1995 Oberlandesgericht [Appellate Court] Frankfurt 8C [translation available]

Germany 24 May 1995 Oberlandesgericht [Appellate Court] Celle 8B [translation available]

Austria 23 May 1995 Oberlandesgericht [Appellate Court] Linz

China 15 May 1995 CIETAC Arbitration Award [CISG/1995/09] (Copper cable case) 8C [translation available]

* Australia 28 April 1995 Federal District Court, Adelaide (Roder v. Rosedown) 8B ; 8B2 ; 8C

* France 26 April 1995 Cour d'appel [Appellate Court] Grenoble (Alain Veyron v. Ambrosio) 8B ; 8C [translation available]

Germany 31 March 1995 Oberlandesgericht [Appellate Court] Frankfurt 8C [translation available]

China 22 March 1995 CIETAC Arbitration Award [CISG/1995/05] (Down jacket and winter coat case) 8C [translation available]

China 10 March 1995 CIETAC Arbitration Award [CISG/1995/03] (Polyethylene film case) 8C [translation available]

China 10 March 1995 CIETAC Arbitration Award [CISG/1995/04] (Wool case) 8A [translation available]

Russia 3 March 1995 Arbitration award 304/1993 [commentary available]

Russia 3 March 1995 Arbitration award 309/1993 8A

ICC March 1995 International Court of Arbitration, Case 7645 8A1 ; 8C3 [English text]

ICC March 1995 International Court of Arbitration, Case 8213 8A ; 8C [English text]

France 22 February 1995 Cour d'appel [Appellate Court] Grenoble 8A [translation available]

* Germany 8 February 1995 Oberlandesgericht [Appellate Court] Hamm 8B ; 8C

* ICC 1995 International Court of Arbitration, Case 8324 8A ; 8C3 [translation available]
 

* Austria 10 November 1994 Oberster Gerichtshof [Supreme Court] 8B1 ; 8C [translation available]

Russia 27 October 1994 Arbitration award 407/1993

China 29 September 1994 CIETAC Arbitration Award [CISG/1994/12] (Umbrella case) 8C [translation available]

Austria 15 June 1994 Vienna Arbitration award SCH-4366 8C [translation available]

Russia 6 April 1994 Arbitration award 224/1993

Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 8A ; 8C [translation available]

Germany 24 January 1994 Kammergericht [Appellate Court] Berlin 8A [translation available]

Hungary 17 January 1994 Budapest Arbitration award Vb 92068

* ICC 1994 International Court of Arbitration, Case 7331 8A1 ; 8B ; 8C [English text]
 

Netherlands 30 December 1993 Arrondissementsrechtbank [District Court] Arnhem

Argentina 14 October 1993 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] 8C4

China 10 July 1993 CIETAC Arbitration Award [CISG/1993/09] (Heliotropin case) 8A [translation available]

France 16 June 1993 Cour d'appel [Appellate Court] Grenoble 8A ; 8B [translation available]

* United States 15 June 1993 Federal Appellate Court [5th Circuit] (Beijing Metals v. American Business Center) 8C

Germany 12 March 1993 Oberlandesgericht [Appellate Court] Düsseldorf 8C [translation available]

Austria 4 March 1993 Landesgericht [District Court] Graz 8B1 ; 8C

Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]

China Post-1992 CIETAC Arbitration Award [CISG/1993/14] (White cardboard scrap paper case) 8C [translation available]
 

Switzerland 21 December 1992 Zivilgericht [Civil Court] Basel 8C2 ; 8C3 [translation available]

* Germany 20 November 1992 Oberlandesgericht [Appellate Court] Karlsruhe (Frozen chicken case) 8B [translation available]

Hungary 25 September 1992 Legfelsobb Bíróság [Supreme Court] (Pratt & Whitney v. Malev) [translation available]

Germany 22 September 1992 Oberlandesgericht [Appellate Court] Hamm (Frozen bacon case) [translation available]

Germany 22 May 1992 Landgericht [District Court] Mönchengladbach

* United States 14 April 1992 Federal District Court [Southern Dist. NY] (Filanto v. Chilewich) 8C ; 8C4

Hungary 10 January 1992 Fovárosi Bíróság [Metropolitan Court] 8A ; 8B ; 8C [translation available]
 

China 19 April 1991 CIETAC Arbitration award 8A [translation available]
 

* Germany 26 September 1990 Landgericht [District Court] Hamburg 8A1


UNCITRAL CASE DIGEST

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/8 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 8
Digest of Article 8 case law
-    Interpretation of the statements and conduct of a party and of the contract
-    Subjective intent of the party (Article 8, paragraph 1)
-    Objective interpretation
-    Elements to be taken into account in interpreting statements or other conduct of a party
-    Standard contract terms and language of the statements]
ARTICLE 8

      (1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.  

      (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.

      (3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.

DIGEST OF ARTICLE 8 CASE LAW

Interpretation of the statements and conduct of a party and of the contract

1. Whereas article 7 concerns the interpretation and gap-filling of the Convention, article 8, which according to one arbitral tribunal states rules which correspond to principles generally accepted in international commerce,[1] relates to the interpretation of any statements or other conduct of a party, provided that those statements or conduct relate to a matter governed by the Convention, as expressly pointed out by the Supreme Court of one Contracting State.[2] Therefore, whenever the statement or the conduct to be interpreted relates to a matter governed by the Convention, the interpretative criteria set forth in article 8 are to be used in order to interpret those statements or conduct, whether those statements or conduct relate to Part II (on "Formation") or Part III (on "Rights and Obligations of the Parties"). This view is supported by legislative history [3] and case law. Courts have resorted to the interpretative criteria set forth in article 8 to interpret both statements and other conduct concerning the process of formation of contract,[4] as well as statements and other conduct concerning the performance of the contract [5] and its avoidance.[6]

2. Where the provision is applicable, it precludes the applicability of domestic interpretative rules, since article 8 exhaustively deals with the issue of interpretation.[7]

3. Although article 8 appears to be applicable merely to the interpretation of unilateral acts of each party, according to both legislative history [8] and case law [9] it "is equally applicable to the interpretation of 'the contract', when the document is embodied in a single document"[10]

Subjective intent of the party (Article 8(1))

4. Paragraphs (1) and (2) of article 8 set forth two sets of criteria. According to one court, [11] article 8(1) permits "a substantial inquiry into the parties' subjective intent, even if the parties did not engage in any objectively ascertainable means of registering this intent. Article 8(1) instructs courts to interpret the 'statements ... and other conduct of a party ... according to his intent' as long as the other party 'knew or could not have been unaware' of that intent. The plain language of the Convention, therefore, requires an inquiry into a party's subjective intent as long as the other party to the contract was aware of that intent"[12] or could not have been unaware of it.[13]

5. The party that asserts that the other party did know or could not have been unaware of the former party's intent has to prove that assertion.[14]

6. In order for the subjective intent of the party to be relevant at all, it must somehow have been manifested; this is the rationale behind the statement of one court according to which "the intent that one party secretly had, is irrelevant".[15]

7. However, although courts have to first try to establish the meaning of a statement of other conduct by looking into the intent of the party making that statement or holding that conduct, as emphasised for instance by one arbitral tribunal,[16] "most cases will not present a situation in which both parties to the contract acknowledge a subjective intent [...]. In most cases, therefore, article 8(2) of the [Convention] will apply, and objective evidence will provide the basis for the court's decision."[17] According to one arbitral tribunal this is due to the fact that the application of article 8(1) requires either that the parties have established practices between themselves and know each other well or that the statements are very clear.[18]

Objective interpretation

8. Where in the interpretation of a statement or other conduct of a party it is not possible to rely on article 8(1), (and, ultimately, on that party's intent), one has to resort to "a more objective analysis"[19] as provided for in article 8(2).[20] According to this provision, statements and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.[21] According to one court, the result of an interpretation based on the aforementioned criteria corresponds to the result of a "reasonable interpretation".[22]

9. There are various examples in which courts relied upon article 8(2). In one case, a court inferred the buyer's intention to be bound by its declaration and the possibility of determining the quantity of the goods by interpreting its statements and conduct according of the understanding of a reasonable person of the same kind as the other party in the same circumstances. The court found that, absent any relevant circumstance or practice between the parties at the time the contract was concluded, which have always to be taken into account, the buyer's intention to be bound could be evinced from the buyer's request to the seller to issue the invoice of the delivered textiles.[23]

10. After noting that according to article 14(1) of the Convention a declaration must be sufficiently definite in order to constitute a proposal and that it is sufficiently definite where it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price, one court stated that for the offer to be able to be accepted, "it suffices that the required minimum content can be understood as being sufficiently definite by 'a reasonable person of the same kind' as the other party (offeree) would have 'in the same circumstances' ".[24]

11. In another case, when having to determine what qualities of the goods were agreed upon, one Supreme Court stated that, given that the parties had a different understanding of the meaning of the contract, the language of the contract had to be interpreted according to article 8(2), i.e. "according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances." The Court reasoned that since the buyer was an expert and knew that it was not offered a new machine, but one built fourteen years prior to the conclusion of the contract and which consequently did not conform to the latest technical expectations, it was without doubt consistent with article 8(2) for the Court of First Instance to find that the seller was entitled to expect that the buyer concluded the contract in full knowledge of the technical limitations of the machinery and its equipment. For these reasons, the Supreme Court concurred with the Court of First Instance that the machine was offered to the buyer in conformity with the specifications of the contract.[25]

12. In another case, one court which was considering the interpretation of a letter, noted that article 8(2) of the Convention is the primary source of interpretation  and, in respect of the case to be decided by the court, showed "that the claim for the purchase price was due at the end of the agreed period for payment. Only within this period was the buyer allowed to propose a compensation transaction as provided in the contract. The offer would have given the [buyer] a respite in payment while the performance of the compensation transaction would have fulfilled the [buyer's] obligation to pay the purchase price. The parties' interests also point in favor of such an understanding of their agreement. While the [buyer] would have benefited from reciprocal shipments which allowed it to set-off its payment obligation against the [seller's], it was evidently important for the [seller] to receive a [monetary] equivalent for its goods no later than at the expiration of the payment period. In particular, the [buyer] could not have been unaware that it would have been commercially unreasonable for the [seller] to grant a respite in payment beyond the agreed period only upon the [buyer's] announcement of a compensation transaction."[26]

13. Article 8(2) was also used in a dispute relating to the non-conformity of goods in order to determine whether the seller had implicitly waived, through its behavior, its right to set up the defense that the notice of non-conformity was not timely.[27] More specifically, the court stated that the fact that a seller enters into negotiations over the lack of conformity of the goods need not necessarily be regarded as a waiver, but should be considered in conjunction with the circumstances of each case. Since in the case at hand, after its own inspection of the claimed defect, the seller "negotiated over the amount and manner of a settlement of damages for practically 15 months – [...] without expressly or at least discernibly reserving the objection to the delay" and even "offered through legal counsel to pay compensatory damages that amount to practically seven times the value of the goods",[28] article 8(2) and 8(3) led the court to state that "the [buyer] could only reasonably understand that the [seller] was seeking a settlement of the affair and would not later refer to the allegedly passed deadline as a defense to the [buyer's] reimbursement claim", i.e. that the seller had waived its right to rely on the untimeliness of the notice. The issue of whether the seller had waived its right to raise the untimeliness of the buyer's notice of non-conformity was dealt with by another court as well.[29] According to that court, such a waiver cannot be assumed from the mere readiness of the seller to discuss the issue with the buyer. This results both from the need of certainty in commercial transactions, and from the principle of good faith, which is applicable also in the interpretation of the parties' statements or other conduct.

14. One court resorted to article 8(2) to interpret the meaning of the clause "franco domicile" contained in a contract. The court found that this clause did not merely deal with the cost of the transport but also with the passing of the risk. In reaching this conclusion, the court interpreted the term "franco domicile" according to the understanding that a reasonable person would have had in the same circumstances. In the court's opinion, a buyer entitled to the delivery of goods "franco domicile" would not worry about transportation and insurance of the goods; furthermore, the court reasoned that the fact that the seller obtained transport insurance meant that it was prepared to take the risk of the transportation of the goods.  The court observed that this clearly indicated the parties' intention to accept the passing of the risk at the buyer's place of business, and accordingly to deviate from article 31(a) CISG.[30]

15. In a ifferent case,[31] article 8(2) was resorted to in order to determine whether the conduct of one party allowed the court to decide whether an agreement as to the purchase price had been reached by the parties. Because the buyer had taken delivery of the goods without contesting the price indicated by the seller and since such conduct was to be interpreted as acceptance of the price pursuant to article 8(2), the court ordered the buyer to pay the price requested by the seller, as it considered that an agreement on the purchase price had been reached.

16. Article 8(2) and the interpretive standards it refers to was also invoked in order to determine whether a loss which occurred was to be considered foreseeable under article 74 of the Convention.[32]

Elements to be taken into account in interpreting statements or other conduct of a party

17. According to article 8(3), in determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case[33] including the negotiations, any practices which the parties have established between themselves, usages, and any subsequent conduct of the parties.[34] As noted in several decisions,[35] these criteria have to be taken into account when interpreting a statement or other conduct in the light of both article 8(1)[36] and article 8(2).[37]

18. The express reference in article 8(3) to the negotiations as an element to be taken into account in interpreting statements or other conduct by the parties did not prevent one court from holding that the "parol evidence rule" applies even in relation to contract governed by the Convention.[38] This rule, which notwithstanding its name applies indiscriminately to both parol and written evidence, seeks to give legal effect to the contracting parties' final, and in certain instances, complete expressions of their agreement which they have reduced to writing. If the agreement is supposed to be a complete integration, the parol evidence rule prohibits a party from introducing evidence of prior agreements or negotiations that are contradictory as well as consistent with the writing. This decision is in contrast with that of courts in other jurisdictions within that State.[39] One court [40] expressly stated that "the parol evidence rule is not viable in CISG cases in light of article 8 of the Convention"[41] since "article 8(3) expressly directs courts to give 'due consideration [...] to all relevant circumstances of the case including the negotiations' to determine the intent of the parties. Given article 8(1)'s directive to use the intent of the parties to interpret their statements and conduct, article 8(3) is a clear instruction to admit and consider parol evidence regarding the negotiations to the extent they reveal the parties' subjective intent". According to another court, "article 8(3) essentially rejects [...] the parol evidence rule."[42] Yet another court stated that "contracts governed by the CISG are freed from the limits of the parol evidence rule and there is a wider spectrum of admissible evidence to consider in construing the terms of the parties' agreement".[43]

19. One court, after pointing out the problems that may arise under the Convention in respect of parol evidence, stated that to the extent parties wish to avoid parol evidence problems they can do so by including a merger clause in their agreement that extinguishes any and all prior agreements and understandings not expressed in the writing.[44]

20. As far as the subsequent conduct is concerned, it generally serves to show what intention existed at the time the statement was made, as stated by different courts.[45] In one case,[46] the court inferred the buyer's intention to be bound and the possibility of determining the quantity of the goods by interpreting the buyer's statements and conduct according to the understanding of a reasonable person of the same kind as the other party in the same circumstances. It held that, absent any relevant circumstance or practice between the parties, the intention to be bound had to be interpreted according to the subsequent conduct after the conclusion of the contract of the party that had made the statement. In particular, it held that the buyer's request to the seller to issue the invoice of the delivered textiles to the embroiderer was sufficient evidence of the buyer's intention to be bound at the time it made its proposal. Furthermore, the fact that the buyer complained about the quantity only two months after delivery to the embroiderer gave the court good reason to believe that a valid contract had been concluded for the sale of the quantity of textiles actually delivered to the embroiderer.

21. It should be noted that according to one court, the circumstances referred to in article 8(3) may lead to silence amounting to acceptance.[47]

22. Apart from the elements expressly listed in article 8(3) as elements to be taken into account in the interpretation of statements or other conduct of the parties, according to one court, the good faith principle referred to in article 7(1), in respect of the interpretation of the Convention, must also be taken into account in the interpretation of statements or other conduct of the parties.[48]

Standard contract terms and language of the statements

23. Article 8 has also been invoked to solve the problem of whether and under what conditions standard contract terms proposed by one party become part of the contract. In one case,[49] the Supreme Court of a Contracting State held that the issue of the inclusion of such terms is to be solved on the basis of the Convention's rules on interpretation rather than of those of the applicable domestic law. On the grounds of the applicability of the interpretive criteria set forth in article 8, the court stated that whether the standard contract terms are part of the proposal must be analyzed on the basis of how a "reasonable person of the same kind as the other party" would have understood the offer and that that means that "it is required that the recipient of a contract offer that is supposed to be based on general terms and conditions has the possibility to become aware of them in a reasonable manner" and that "an effective inclusion of general terms and conditions above all requires that the intention of the offeror that it wants to include its terms and conditions into the contract be apparent to the recipient of the offer." In addition, according to the court, "[...], the Convention requires the user of general terms and conditions to transmit the text or make it available" to the other party."[50]

24. In a different case, another court [51] reached basically the same conclusions, but in doing so, it also dealt with the issue of the language in which the statements had to be made to be effective. According to that court, in the absence of an express provision in the Convention the inclusion of standard contract terms has to be decided on the basis of an interpretation of the contract in light of article 8.  A reference by one party to its standard terms must be such as to put a reasonable person of the same kind as the other party in a position to understand it and to gain knowledge of the standard terms. According to the court, one of the circumstances to be taken into account is the language in which the standard terms are written. In the case at hand the seller's standard contract terms were not in the language of the contract; the seller should have sent an translation or at least a text both in the language of the contract and in the other language. Since, however, the seller had not done this, the standard contract terms had not become part of the contract. A similar solution was also adopted in a court of another country, which stated that the standard contract terms written in a language different from that of the contract cannot bind the other party.[52]

25. The language issue was dealt with in another decision as well.[53] On that occasion, the court held that whether a notice written in a language other than the language in which the contract was made or than the language of the addressee was effective was to be decided on a case-by-case basis and taking into account the understanding of a reasonable person, giving due consideration to usages and practices observed in international trade, according to article 8(2) and 8(3). The mere fact that a notice was given in a language which was not that of the contract or that of the addressee was not an obstacle for the notice to be effective. The foreign language could be the language normally used in the respective trade sector, to which the parties may be considered to have agreed upon; and even when this was not the case, the notice would be effective if the debtor, as it was true in the case at hand, could have reasonably been expected to request from the sender of the notice explanations or a translation.

26. In yet another decision,[54] a court held that the party that accepts statements relating to the contract in a language different from the one used for the contract is bound by the contents of such statements, since it is up to that party to get acquainted with the contents of that statement.


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. CLOUT case No. 303 [ICC Court of Arbitration, case No. 7331 1994, available online at <http://cisgw3.law.pace.edu/cases/947331i1.html>] (see full text of the decision).

2. [AUSTRIA Oberster Gerichtshof [Supreme Court] 24 April 1997, available online at <http://cisgw3.law.pace.edu/cases/970424a3.html>].

3. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 18, stating that "Article [8] on interpretation furnishes the rules to be followed in interpreting the meaning of any statement or other conduct of a party which falls within the scope of application of this Convention.  Interpretation of the statements or conduct of a party may be necessary to determine whether a contract has been concluded, the meaning of the contract, or the significance of a notice given or other act of a party in the performance of the contract or in respect of its termination".

4. [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>]; [AUSTRIA Oberster Gerichtshof [Supreme Court] 9 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>]; [GERMANY Landgericht [District Court] Zwickau 19 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990319g1.html>]; CLOUT case No. 189, [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>]; CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>]; CLOUT case No. 334 [SWITZERLAND Obergericht [Appellate Court] Thurgau 19 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951219s1.html>]; CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>] (see full text of the decision); CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].

5. CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>] (dealing with the issue of whether the offer to pay damages on the seller's part constitutes a waiver of the seller's right to rely on articles 38 and 39).

6. CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz  31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>] (dealing with the issue of whether a certain conduct amounted to avoidance of the contract) (see full text of the decision).

7. CLOUT case No. 5 [GERMANY Landgericht [District Court] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>] (see full text of the decision).

8. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 18.

9. CLOUT case No. 303 [ICC Court of Arbitration, case No. 7331 1994, available online at <http://cisgw3.law.pace.edu/cases/947331i1.html>] (see full text of the decision).

10. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 18; see [SWITZERLAND Bundesgericht [Federal Supreme Court] 22 December 2000, available online at <http://cisgw3.law.pace.edu/cases/001222s1.html>].

11. CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, [Federal Appellate Court] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>].

12. CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, [Federal Appellate Court] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (internal citation in quoted material omitted) (see full text of the decision); for other cases in which the part of article 8(1) referred to in the text was cited, see CLOUT case No. 313 [FRANCE Cour d'appel [Appellate Court] Grenoble 21 October 1999, available online at <http://cisgw3.law.pace.edu/cases/991021f1.html>] (see full text of the decision); CLOUT case No. 268 [GERMANY Bundesgerichtshof [Supreme Court] 11 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961211g1.html>].  For an express reference to the "subjective" interpretation, see [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>].

13. For references to this part of the article 8(1), see CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision).

14. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision).

15. CLOUT case No. 5 [GERMANY Landgericht [District Court] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>] (see full text of the decision).

16. [ICC Court of Arbitration case No. 8324 [of 1995], available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>].

17. CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, [Federal Appellate Court] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (see full text of the decision).

18. [ICC Court of Arbitration case No. 8324 [of 1995], available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>].

19. Id., for other cases expressly referring to the need, absent the possibility of a subjective interpretation, to interpret statements or other conduct of the parties on a more "objective" basis, see [GERMANY Oberlandesgericht [Appellate Court] Köln 16 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010716g1.html>]; [GERMANY Bundesgericht [Federal Supreme Court] 22 December 2000, available online at <http://cisgw3.law.pace.edu/cases/001222s1.html>]; [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>]; CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, [Federal Appellate Court] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (see full text of the decision); [NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>]; [GERMANY Landgericht [Court] Kassel 15 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>].

20. It may well be that neither an interpretation based upon article 8(1) nor one based upon article 8(2) leads to the result wanted by the party, see [NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>].

21. [GERMANY Landgericht [District Court] Zwickau 19 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990319g1.html>]; CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>]; [NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision); CLOUT case No. 166 [GERMANY Hamburg Arbitration award case of 21 March / 21 June 1996; available online at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (see full text of the decision); [HUNGARY Budapest Arbitration Award case No. Vb 94124 of 17 November 1995, available online at <http://cisgw3.law.pace.edu/cases/951117h1.html>]; CLOUT case No. 308 [AUSTRALIA Roder v. Rosedown Federal District Court 28 April 1995; available at <http://cisgw3.law.pace.edu/cases/950428a2.html>] (see full text of the decision); CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].

22. CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>].

23. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision).

24. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].

25. [GERMANY Bundesgericht [Federal Supreme Court] 22 December 2000, available online at <http://cisgw3.law.pace.edu/cases/001222s1.html>].

26. [GERMANY Oberlandesgericht [Appellate Court] Dresden 27 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991227g1.html>].

27. CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>].

28. Id. (internal citations to Convention omitted) (see full text of the decision).

29. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (see full text of the decision).

30. CLOUT case No. 317 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 20 November 1992, available online at <http://cisgw3.law.pace.edu/cases/921120g1.html>].

31. CLOUT case No. 151 [FRANCE Cour d'appel [Appellate Court] Grenoble 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426f1.html>].

32. [AUSTRIA Oberster Gerichtshof [Supreme Court] 14 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020114a3.html>].

33. According to the Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 18, the list to be found in article 8(3) is not an exhaustive list of element to be taken into account in interpreting statements or other conduct by the parties.

34. For references to article 8(3), see CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>]; CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].

35. In arbitration, see [ICC Court of Arbitration case No. 8324 [of 1995], available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>].

36. CLOUT case No. 268 [GERMANY Bundesgerichtshof [Supreme Court] 11 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961211g1.html>], expressly stating that the elements referred to in article 8(3) have to be taken into account when interpreting a statement or other conduct by a party in the light of article 8(1) (see full text of the decision).

37. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].

38. CLOUT case No. 24 [UNITED STATES Beijing Metals v. American Business Center, [Federal Appellate Court] [5th Circuit] 15 June 1993, available online at <http://cisgw3.law.pace.edu/cases/930615u1.html>].

39. See, apart from the decisions referred to subsequently in the text, [UNITED STATES Shuttle Packaging Systems v. Tsonakis, Federal District Court [Michigan] 17 December 2001, available online at <http://cisgw3.law.pace.edu/cases/930615u1.html>]; CLOUT case No. 419 [UNITED STATES Mitchell Aircraft Spares v. European Aircraft Service Federal District Court [Illinois] 27 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981027u1.html>].

40. CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, [Federal Appellate Court] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>].

41 Id. (see full text of the decision).

42.  CLOUT case No. 23 [UNITED STATES Filanto v. Chilewich Federal District Court [New York] 14 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920414u1.html>] (see full text of the decision).

43. CLOUT case No. 413 [UNITED STATES Calzaturificio Claudia v. Olivieri Footwear Federal District Court [New York] 6 April 1998, available online at <http://cisgw3.law.pace.edu/cases/980406u1.html>] (see full text of the decision).

44. CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, [Federal Appellate Court] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (see full text of the decision).

45. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>]; CLOUT case No. 5 [GERMANY Landgericht [District Court] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>] (see full text of the decision).

46. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision).

47. CLOUT case No. 23 [UNITED STATES Filanto v. Chilewich Federal District Court [New York] 14 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920414u1.html>].

48. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (see full text of the decision); [GERMANY Hamburg Arbitration award case of 21 March / 21 June 1996; available online at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>].

49. [GERMANY Bundesgerichtshof [Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>].

50 Id.

51. See CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html>].

52. [BELGIUM Rechtbank [District Court] Hasselt 2 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990602b1.html>].

53. CLOUT case No. 132 [GERMANY Oberlandesgericht [Appellate Court] Hamm 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g3.html>].

54. [GERMANY Landgericht [Court] Kassel 15 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>].


ANNOTATED COMPARATIVES
-  UNIDROIT Principles
-  PECL comparative

Remarks on the manner in which the UNIDROIT Principles
may be used to interpret or supplement Article 8 CISG

Joseph M. Perillo [*]

a. Article 8 of CISG has been entitled "Interpretation of Statement or Other Conduct of a Party." Surprisingly, CISG makes no explicit statement concerning the interpretation of a contract that is the joint product of the parties' negotiations resulting in the adoption of common language. As Professor Honnold has noted, the provisions of Article 8 have "special significance for agreements that have not resulted from detailed negotiations."[1] Uncomplicated sales of goods, where no formalized contractual documents are produced are quite common, but more complex transactions interweaving sales with support services are quite important.[2] The UNIDROIT Principles' focus is broader than simple sales and provides explicit guidance for the interpretation of contracts and not merely for the interpretation of individual communications. It thus fills a wide gap in the CISG text.

b. Article 4.1 of the Principles talks in terms of the interpretation of "contracts." It starts with a subjective notion. If the parties have a common intention, the common intention will prevail. This, on the face of it, is the same rule that has been adopted by the American Restatement,[3] but the common law objectifies intention by erecting barriers to evidence of what the parties really intended as opposed to what they said or wrote.[4] The Principles, however, disclaims any limitation on evidence of the parties' intentions.[5]

c. If the common intention of the parties cannot be determined, the Principles would apply an objective test to determine the meaning of the contract. Once again the Principles fill in a gap as the CISG is silent on the question of interpreting the joint intention of the parties. The objective test is that the interpretation should be the "meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances."[6]

d. CISG has rules concerning the interpretation of the statements and other conducts of individual parties. Article 4.2 of the Principles, except for stylistic changes, is identical to Article 8(1), and 8(2) of CISG. The primary standard is the subjective intention of the party whose statement or conduct is in issue, provided, however, that the other party knows or should know of that intent. If that standard cannot be attained, for example, the other party had no reason to know the first party's intent, then the standard is that of the reasonable person in the position of the other party.

e. Article 8(3) of CISG requires that "due consideration is to be given to all relevant circumstances of the case including the negotiations. . . ."[7] The Principles echo this rule. According to the Principles, the interpretation process must take into account "the preliminary negotiations between the parties."[8]

f. Can a merger clause change this result? According to CISG Article 6, the parties are free by agreement to vary (with one minor exception ) the effect of any provision of the Convention.[9] Thus, a merger clause that explicitly barred evidence of negotiations would be effective by virtue of Article 6. While the Principles recognize the validity of a merger clause that indicates that the writing is totally integrated, they state that a merger clause does not bar evidence of prior statements of agreements for purposes of interpreting the writing.[10] This statement appears to conflict with CISG. However, because of the principle of party autonomy that underlies the Principles, it certainly leaves open the possibility of effectively drafting a clause that expressly prohibits the parties from introducing such evidence for any purpose, including for interpretation.[11] However, the standard merger clause that states that there are no other understandings between the parties is unlikely to bar evidence of parol evidence for purposes of interpretation. Drafters of contracts should be aware of the narrow effect that a court is likely to give to a merger clause if CISG applies to the case,[12] particularly in the light of the hostility toward barriers to the introduction of evidence of the negotiations shown by its companion, the Principles.

g. One aspect of the parol evidence rule concerns the admissibility of supplementary or inconsistent terms in the face of an integrated writing. Absent a merger clause, do CISG or the Principles permit the admission of such terms in contexts where the common law would exclude them? While this question goes more to the issue of the content of the contract rather than its meaning, it is usually analyzed in the same framework as issues of interpretation. The answer is that both documents are parol-evidence friendly. Neither CISG nor the Principles contain any rule that bars evidence of additional or conflicting terms akin to the common law's parol evidence rule.[13] Under CISG, all relevant evidence is admissible.[14] The same is true under the Principles. While CISG states this mostly in general terms, the Principles flesh this out in detail.

h. Article 4.3 of the Principles agrees with CISG and directs that the court consider "all the circumstances," but it goes beyond CISG and itemizes six non-exclusive kinds of relevant circumstance: (1) preliminary negotiations, (2) course of dealing, (3) course of performance, (4) the nature and purpose of the contract, (5) trade terms, (6) usages. These are familiar kinds of evidence offered in common law cases. The main difference is that there is no preliminary hurdle of ambiguity that many jurisdictions impose (in non-UCC cases) prior to the admission of evidence such as evidence of preliminary negotiations,[15] or course of performance.[16] The latter is freely admissible under the UCC as is evidence of trade usage and course of dealing.[17]

i. Article 8 of CISG does not contain what the U.S. Restatement calls "rules in aid of interpretation and standards of preference." The Principles, however, lay down several such rules and thus provides food for the fleshing out of CISG. One rule is that words should be interpreted in the context of the whole contract or other document in which they appear.[18] Another is that specific provisions prevail over more general ones.[19] The contract, of course, can contain rules of interpretation, e.g., subordinating the terms of one document to that of another document that is part of one complex contract.[20] All terms of the contract are to be given effect.[21] Also, the Principles adopt the principle of contra proferentem -- interpretation against the party who supplied the language.[22] All of these rules are consistent with traditional approaches.

j. One rule the Principles promulgate deals with a problem seldom encountered in purely domestic contracts -- conflicts among versions of the contract in different languages. In the event of discrepancies, the Principles generally favor the version that was originally drawn up. CISG is silent on this important issue and the Principles advance the cause of certainty in international trade by providing a definite and logical rule.

k. The Principles announce a rule with respect to the vexing problem of the omitted term. Where no term of the contract covers an event that has occurred, the tribunal is faced with an omitted term.[23] Perhaps the event was unforeseen; perhaps it was foreseen as a possibility, but was too thorny an issue to be resolved by negotiation. Strictly, the supplying of a term is not interpretation of the parties' agreement. The court must create rather than interpret. However, some gap-fillers are routine and many are found in CISG, e.g., the buyer must notify the seller of any non-conformity of the goods within a reasonable time.[24] If the gap does not concern this kind of routine event, the Principles provide criteria for filling the gap.[25] Once again, the Principles identify raw material with which to fill the gap in CISG.


FOOTNOTES

* Alpin J. Cameron Professor of Law, Fordham University School of Law

A match-up is available for CISG Article 8 and the following provisions of the UNIDROIT Principles of International Commercial Contracts: Articles 4.1 [Intention of the parties], 4.2 [Interpretation of statements and other conduct], 4.3 [Relevant circumstances], 4.4 [Reference to contract or statement as a whole], 4.5 [All terms to be given effect], 4.6 [Contra proferentem rule], 4.7 [Linguistic discrepancies] and 4.8 [Supplying an omitted term] <http://cisgw3.law.pace.edu/cisg/principles/uni8.html>. The match-up is accompanied by Official UNIDROIT Comments on these provisions describing and illustrating the manner in which they are to be applied.

1. John Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention ¶ 105 p.163 (2d ed. 1991).

2. See, e.g., Advent Systems Ltd. v. Unisys Corp., 925 F.2d 670 (3d Cir.1991).

3. Restatement (Second) Contracts § 201(1) & Illus. 1, 3 (1979).

4. See John D. Calamari & Joseph M. Perillo, The Law of Contracts, ch.3 (3d ed 1987) (4th ed. forthcoming 1998).

5. See Principles Arts. 1..2, 4.3, & 2.17.

6. Principles Article 4.1(2). However, the commentary advises the court that the actual subjective common intention of the parties, and their reasonable understanding may be subordinated to the understanding of average users of "standard terms," as defined in Article 2.19. Principles Art. 4.1, comment 4.

7. See Honnold supra note 1, at 111.

8. Principles Art. 4.3(a).

9. The exception is Article 12, which provides that if a Contracting State makes a reservation under Article 96 and imposes writing or other form requirements on contracts., the parties cannot derogate from those requirements.

10. Principles Art. 2.17, final sentence.

11. Principles Arts. 1.1 & 1.5.

12. In an earlier article, I wrote: "As an apparent exception to the general rule of contractual freedom adopted by Principles, a merger clause cannot effectively bar parol evidence for the purpose of interpreting a writing." For this proposition, I cited Principles Article 2.17 and comment 3 to Article 4.3. Joseph M. Perillo, UNIDROIT Principles of International Commercial Contracts: The Black Letter Text and a Review, 63 Fordham L. Rev. 281, 291 (1994). This may have been the intent of the drafters of those provisions, but I have since reconsidered. That intent, if it exists, is overridden by Articles 1.1 & 1.5.

13. For an explanation of the absence of a reference to the parol evidence rule, see Honnold, supra note 1, at ¶ 110. Of course, the parol evidence rule is a rule of substantive law that has incidental evidentiary effects.

14. CISG Art. 8(3). It is unfortunate that an American case that was faced with this issue stumbled. In Beijing Metals & Minerals Import Corp. v. American Business Center, Inc., 993 F.2d 1178, 1182 n.8 (5th Cir.1993), the court without discussion or analysis applied the Texas parol evidence rule to bar evidence of an alleged additional oral term to a written contract governed by CISG. An earlier case had recognized the absence of a parol evidence rule in CISG. Filanto, S.p.A. v. Chilewich Intern. Corp., 789 F.Supp. 1229, 1238 n.7 (S.D.N.Y. 1992).

15. W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 566 N.E.2d 639, 565 N.Y.S.2d 440 (1990)

16. Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 609 N.E.2d 506, 593 N.Y.S.2d 966 (1993) (evidence of practical construction not admissible if the contract is unambiguous).

17. UCC § 2-202(a).

18. Principles Art. 4.4.

19. Principles Art. 4.4, comment 2,

20. Ibid.

21. Principles Art. 4.5.

22. Principles Art. 4.6.

23. Restatement (Second) of Contracts § 204 (1979).

24. CISG Art. 39.

25. Principles Art. 4.8.


ANNOTATED COMPARATIVES
-  PECL comparative

Remarks on the manner in which the Principles of European
Contract Law may be used to interpret or supplement Article 8 CISG

Maja Stanivukovic [*]


1. The subject-matter of interpretation
2. Interpretation based on subjective standard (establishing the intention)
3. Interpretation based on objective standard (the criterion of a reasonable person)
4. Auxiliary criteria of interpretation
5. Specific rules of interpretation

1. The subject-matter of interpretation

a. Two kinds of interpretation that both the Convention and the Principles of European Contract Law deal with should always be distinguished - first, the interpretation of their own provisions, subject to Art. 7(1) CISG and Art. 1:106 PECL, respectively; second, the interpretation of the contract, subject to Art. 8 CISG and Art. 5:101 PECL et seq., respectively.[1]

b. Nowhere does the Convention mention the interpretation of the contract, however, but rather speaks of interpretation of unilateral statements and conduct of each party (see, Art. 8 paras. (1) and (2): 'statements made by and other conduct of a party are to be intepreted').[2] In contrast, the Principles expressly state that the contract is the subject matter of interpretation (see, Art. 5:101 para. (1): 'a contract is to be interpreted', para. (2): 'that one party intended the contract to have a particular meaning', 'the contract is to be interpreted', para. (3) 'the contract is to be intepreted'). It is beyond doubt, however, that Art. 8 CISG is also concerned with interpretation of the contract,[3] no matter whether it is a contract made through an exchange of communications, or a single instrument supplied by one party and accepted by the other, or drafted and signed by both parties jointly, or a contract concluded in some other way.[4] This difference between CISG and PECL is in expression and emphasis only. The European Principles are more bilaterally oriented in their formulation, starting from the common intention of the parties,[5] and finishing by applying the standard of reasonableness to both parties,[6] while the Convention concentrates on cases in which one party has had a more active role in the preparing of the contractual instrument. In Art. 8, the Convention puts stress on the intention of each individual party, and on the understanding that the other party would have attributed to its statements and conduct.[7] Although the Principles, too, allow for the possibility of one party's intention to prevail, even when different from the literal meaning of the words, this figures as an exception to the general rule of mutual intention.[8] The practical importance of this difference may appear in the case of contracts in which both parties fully participated in the drafting of the contractual instrument. Paragraphs (1) and (2) of Art. 8 CISG would seem to be inapplicable to such an instrument, because they differentiate between the one who makes a statement and the one who receives it,[9] while Art. 501 PECL would be fully applicable. One reason for the different approach in formulation probably lies in the history of the Art. 8 provision of CISG. If one keeps in mind the fact that this provision originated from the Commission draft on formation of contracts where it was used for interpretation of offer and acceptance, and became applicable to statements and conduct after formation of the contract only later, when the two drafts on formation and sales were merged, its one-party orientation becomes understandable.[10] The second reason for this difference probably lies in the predominance of the theory of mutual intent as the basis of contract in the majority of the laws of European states whose lawyers participated in the drafting of the PECL.[11] Such a unison view of the basis of contract did not exist among the member states of UNCITRAL.[12]

c. The rules on interpretation of contract, i.e., of the parties' statements and conduct constituting the contract, are necessary when the meaning of certain provisions is ambiguous, or when the different clauses of a contract contradict each other.[13] The interpretation of unclear or contradictory provisions may be necessary in order to determine whether the contract came into existence, what is its content, and what is the effect of certain notices or other acts of parties upon the performance or existence of the contract.[14] One of the purposes that the rules on interpretation have to serve - determination whether a contract has been concluded - has been treated by a separate provision in the PECL, Art. 2:101, thus giving rise to another formal difference between the CISG and PECL. The Principles state in Art. 2:101 that a party's intention to be legally bound, as a condition for concluding a contract under Art. 2:101(1)(a), shall be determined on the basis of that party's statements and conduct, i.e., whether these statements or that conduct gave the other party a reason to believe that the first party wanted to be legally bound. This provision is clearly more inclined to the objective standard of interpretation (see infra, f). However, in their Notes, the PECL Commentators refer judges and arbitrators to the whole set of rules of interpretation contained in chapter 5 (with subjective standard inclusive) in determining whether the party to whom statement or other conduct was addressed had reason to assume that the first party intended to be bound.[15] The CISG does not dedicate a particular provision to this purpose, but instead, relies on Art. 8, an all-embracing provision, which applies to interpretation of all statements and conduct of the parties, either during the formation of contract, or during its performance and possible termination. Professor Honnold points out that this article has an even wider scope, because it applies also to post-contract communications and actions.[16]

d. There is an obvious difference in the type of contract to which these rules can possibly be applied. While Art. 8 CISG is to be applied only to interpretation of contracts for the international sale of goods, this being further limited by the exclusion of certain international sales by the Convention text itself, the purpose of the interpretation rules contained in Chapter 5 of PECL is much wider, i.e., they are intended to serve for interpretation of "any sort of contract,"[17] including contracts for the international sale of goods.

2. Interpretation based on subjective standard (establishing the intention)

e. The basic similarity between CISG and PECL rules on interpretation of contracts lies in the combination of the subjective and objective methods of interpretation. Both the Convention (Art. 8(1) CISG) and the Principles (Arts. 5:101(1) and 5:101(2) PECL) instruct the judge or arbitrator to start by establishing the intention of the parties. But, as indicated above, the PECL wants judges and arbitrators to primarily look for their common intention (Art. 5:101(1)), and only exceptionally to interpret the contract in the way intended by one party (Art. 5:101(2)), while the CISG does not refer to the common intention of the parties at all, but only to intent of an individual party. There are some further differences in the wording of the respective rules. For example, PECL in Art. 5:101(2) elegantly avoids the repetitive and tautological nature of the formula used in the CISG to describe the awareness that one party had of the other party's particular intent: "where the other party knew or could not have been unaware what that intent was."[18] Instead, the PECL simply states: "[if] the other party could not have been unaware of the first party's intention." Further, the PECL specifies the relevant moment for assessment of the other party's awareness - this is the moment of conclusion of the contract. Such precision is lacking in CISG Art. 8, perhaps naturally, since it refers more broadly to interpretation of statements and conduct of a party whenever they were given or undertaken.

3. Interpretation based on objective standard (the criterion of a reasonable person)

f. If there are no indicators of the parties' true intentions, both the Convention and PECL instruct the court or arbitrator to apply the objective criterion of an understanding that a reasonable person would attribute to the statements and conduct of the party, i.e., to the contract, in the equivalent circumstances. Again, the PECL is somewhat more precise in defining the situation which triggers the switch from the subjective to objective criterion. This is the case when no intention different from the literal meaning of the words can be established, i.e., when no evidence of parties' actual intentions is available. The CISG, somewhat laconically introduces the second paragraph of Art. 8, which calls for an objective interpretation, with the wording: "If the preceding paragraph is not applicable."

4. Auxiliary criteria of interpretation

g. Both the Convention and the Principles give the judge or arbitrator a non-exhaustive list of matters which may be relevant in determining either the meaning intended by the parties or the reasonable meaning of the contract (see Art. 8(3) CISG and Art. 5:102 PECL).[19] The PECL list is more comprehensive. If we make a close comparison of relevant factors, we notice that the Convention does not mention the following: good faith and fair dealing, the nature and purpose of the contract, the interpretation which has already been given to similar clauses by the parties, the meaning commonly given to terms and expressions in the branch of activity concerned and the interpretation that similar clauses may have already received. Surely, most of these factors may also be taken into account when applying the auxiliary interpretation rule from CISG Art. 8, para. (3).

h. Some may question, however, whether good faith and fair dealing could be used as a tool of interpretation of a contract governed by the Convention, because of the well-known fact that the proposals for imposition of this requirement upon parties and their conduct were expressly rejected during the drafting process.[20] In spite of such legislative history of the Convention text, it has become commonplace among commentators of the CISG to mention the observance of good faith by the parties as a general principle on which the Convention is based.[21] If this view is accepted, the principle of good faith and fair dealing could also serve as a potential auxiliary factor in interpretation of the parties' statements, conduct and contractual provisions in general, even though it is not expressly mentioned in the relevant article of the CISG, as it is in the PECL.

i. Both Art. 8(3) CISG and Art. 5:102 PECL include preliminary negotiations as one among the factors to be taken into account by the judge or arbitrator interpreting the contract. This is generally understood to mean that the parol evidence rule existing in some legal systems is precluded.[22] Even a merger clause possibly inserted into the contract, does not automatically bar the judge from considering any evidence of preliminary negotiations for purposes of interpretation, under either of these instruments.[23] The parties wishing to exclude such evidence for all purposes, including the purposes of interpretation, can still do so, however, by stating accordingly in the merger clause. This would be a derogation from Art. 8(3) CISG and Art. 5:102 PECL, which is allowed on the basis of party autonomy (see Art. 6 CISG; Art. 1:102(2) PECL).[24]

5. Specific rules of interpretation

j. The Convention does not frame any rules on interpretation other than the general rule contained in Art. 8 CISG. In contrast, the PECL contain five such specific rules of interpretation: the contra proferentem rule (Art. 5:103), the rule on giving preference to negotiated terms (Art. 5:104), the rule on interpreting the individual provisions with reference to contract as a whole (Art. 5:105), the rule on giving preference to interpretation which renders the terms of contract effective (Art. 5:106), and the rule on interpretation in case of linguistic discrepancies (Art. 5:107). Undoubtedly, these specific rules may be referred to as supplementary rules in aid of interpretation of the CISG, because they are not inconsistent with, and are in accord with the evident intent of, Art. 8 CISG. Indeed, some of these rules are described as the origin of solutions adopted in Art. 8.[25] They are an absolute necessity for interpretation of contracts made in an international and, often, multilingual setting.


FOOTNOTES

* Dr. Maja Stanivukovic is Professor of Private International Law and Vice-Dean of The Novi Sad Faculty of Law.

A match-up is available for CISG Article 8 and the following provisions of the Principles of European Contract Law: Articles 2:102 [Intention], 5:101 [General rules of interpretation], 5:103 [Contra proferentem rule], 5:104 [Preference to negotiated terms], 5:105 [Reference to contract as a whole], 5:106 [Terms to be given effect] and 5:107 [Linguistic discrepancies] <http://cisgw3.law.pace.edu/cisg/text/peclcomp8.html>. The match-up is accompanied by:

-   Comments on these provisions authored by the European Commission describing and illustrating the manner in which they are to be applied; and
-   Notes that compare these PECL provisions with continental and common law domestic rules, doctrine and jurisprudence.

1. The Comment to Art. 5:101 PECL also mentions completive interpretation, as a process akin to regular interpretation of contract, but intended for filling the gaps that may arise in the contract. This can be done by resort to implied obligations in accordance with Art. 6.102(c) PECL. There is no comparable provision in the Convention. The closest CISG equivalent that can be used for completive interpretation is Art. 9 CISG.

2. Secretariat Commentary on Art. 7 of the 1978 Draft, Official Records, p. 18, paragraph 2;

3. This is borne out by the emerging case law on the CISG. As of the date of this analysis, the cisgw3 website reports 900 cases <http://www.cisg.law.pace.edu/cisg/text/casecit.html> [viewed 9 March 2002], cases which reflect an abundance of express or implicit attention to Art. 8 CISG by judges and arbitrators, including rulings which draw on this provision to assist in the interpretation of the contract as well as the intention of the parties.

4. Secretariat Commentary on Art. 7 of the 1978 Draft, Official Records, p. 18, paragraph 2; J. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, Second Edition, Kluwer Law and Taxation Publishers, Deventer, Boston 1991, p. 163; J.S. Ziegel, Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods, Commentary of Art. 8, para. (3), available at <http://www.cisg.law.pace.edu/cisg/text/ziegel18.html>.

5. PECL, Art. 5:101, para. (1).

6. PECL, Art. 5:101, para. (3).

7. J. Vilus, Komentar Konvencije UN o meunarodnoj prodaji robe [Commentary on the United Nations Convention on the International Sale of Goods], Obvezno pravo, Druga knjiga, ed. A. Goldštajn, Informator, Zagreb, 1981, p. 24.

8. Provided that the other party could not have been unaware of such intention at the time of conclusion of the contract. See PECL, Art. 5:101 para. 2.

9. This would mean that a judge or arbitrator would have to interpret such an instrument by reference to Art. 8(3). J. Honnold, op. cit. p. 163; Ziegel, loc. cit.

10. J. Honnold, op. cit., p. 162.

11. J. Honnold, op .cit., p. 164. Principles of European Contract Law, Parts I and II, Combined and Revised, ed. Ole Lando and Hugh Beale, Kluwer Law International, 2000, Article 5:101, Comment B, p. 288.

12. Secretariat Commentary on Art. 7 of the 1978 Draft, Official Records, p. 18, paragraph 3;

13. Principles of European Contract Law, op .cit., Art. 5:101, Comment A, p. 287.

14. Secretariat Commentary on Art. 7 of the 1978 Draft, Official Records, p. 18, paragraph 1.

15. "Even if in his inmost mind a party had no intention to be legally bound, most of the laws will hold that he is bound if the other party to whom the statement or other conduct was addressed had reason to assume that the first party intended to be bound. Whether this is the case is to be decided under the rules of interpretation, see notes to chapter 5." Principles of European Contract Law, op. cit. Art. 2:102, Notes, p. 145.

16. J. Honnold, op. cit., p. 163.

17. Principles of European Contract Law, op. cit. Survey of Chapters 1-9, p xxxiv.

18. This formula was criticized as such by Great Britain during the drafting procedure. See J. Vilus, op. cit., p. 25.

19. Principles of European Contract Law, op. cit., Art. 5:102, Comment, p. 291

20. For a detailed comparative commentary on the role of good faith in the three instruments -- the CISG, the PECL and the UNIDROIT Principles -- see Guide to Article 7 CISG, editorial remarks by J. Felemegas and U. Magnus, available online at the Pace Institute website at <http://www.cisg.law.pace.edu/cisg/text/e-text-07.html>.

21. See, for example: R. Herber, in P. Schlechtriem, ed., Commentary on the UN Convention on the International Sale of Goods (CISG), C.H. Beck, München, 1998, p. 63.

22. J. Honnold, op. cit., p. 171; Comparative guide to Art. 8, editorial remarks by J.M. Perillo, item g) <http://www.cisg.law.pace.edu/cisg/principles/uni8.html#edrem>. See MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.p.A. , U.S. Court of Appeals (Eleventh Circuit), 29 June 1998, CLOUT Case no. 222, also available at <http://cisgw3.law.pace.edu/cases/980629u1.html>.

See apparently contra, Beijing Metals & Minerals Import/Export Corporation v. American Business Center, Inc., U.S. Court of Appeals (Fifth Circuit), 15 June 1993, CLOUT Case no. 24, also available at <http://cisgw3.law.pace.edu/cases/930615u1.html>.

However, in Mitchell Aircraft Spares v. European Aircraft Service, U.S. District Court [Illinois], 27 October 1998, CLOUT no. 419, the court confirmed the growing body of U.S. jurisprudence to the effect that, in a case governed by the Convention, Article 8 CISG displaces the U.S. parol evidence rule. See <http://cisgw3.law.pace.edu/cases/981027u1.html>.

[See also, Calzaturificio Claudia v. Olivieri Footwear, 6 April 1998 U.S. District Court [New York], CLOUT case no. 413, also at <http://cisgw3.law.pace.edu/cases/980406u1.html>; Filanto S.p.A. v. Chilewich International Corp., 14 April 1992 U.S. Dist. Ct., CLOUT case no. 23, also at <http://cisgw3.law.pace.edu/cases/920414u1.html>.]

The court in Mitchell Aircraft also disagreed with the possible holding to the contrary in Beijing Metals & Minerals; see A.H.Kritzer's editorial comments in the Mitchell Aircraft case presentation online, id.

23. J. Honnold, op. cit. p. 171. "The search for common intention is compatible with rules which forbid the proof of matters in addition or contrary to a writing, for example if the parties have negotiated a merger clause to the effect that writing contains all the terms of the contract (see Art. 2:105: Merger Clause), as it refers to external elements only to clarify the meaning of a clause, not to contradict it." Principles of European Contract Law, op .cit., Art. 5:101 Comment, B, p. 288.

24. Principles of European Contract Law, op .cit. Art. 5:102, Comment, pp. 291-292.

25. E.g., the provision in art. 8(2) CISG has been described as rooted in the contra proferentem rule by J. Honnold, op.cit. p. 165.


Pace Law School Institute of International Commercial Law - Last updated September 11, 2009
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