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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 8 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Subjective intent of the party (article 8, paragraph 1)
Objective interpretation
Considerations relevant in interpreting statements or other conduct of a party
Standard contract terms and language of 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.

Introduction

1. Whereas article 7 addresses interpretation of and gapfilling for the Convention itself, article 8 (which according to one arbitral tribunal states rules that correspond to principles generally accepted in international commerce[1]) is concerned with the interpretation of statements and other conduct of the parties -- provided (as expressly pointed out by the Supreme Court of one Contracting State) that the statements or conduct relate to a matter governed by the Convention.[2] Therefore, whenever a party's statement or conduct relates to a matter governed by the Convention, the interpretative criteria set forth in article 8 are to be used, whether the statements or conduct relate to matters governed by Part II (on formation of the contract) or Part III (on the rights and obligations of the parties). This view, supported by legislative history,[3] has been adopted in decisions:[4] courts have resorted to the criteria set forth in article 8 to interpret statements and conduct relating to the process of formation of contract,[5] the performance of the contract,[6] and its avoidance.[7]

2. Where article 8 applies, it precludes application of domestic interpretative rules because article 8 exhaustively addresses the issue of interpretation.[8]

3. According to both legislative history[9] and case law,[10] article 8 governs not only the interpretation of unilateral acts of each party but is also "equally applicable to the interpretation of 'the contract', when the document is embodied in a single document".[11]

4. According to one court, it is possible to derive a general duty from article 8 (in conjunction with article 7), pursuant to which, in performing one's own obligation, one has to take into account the interests of opposing party.[12]

5. It is worth pointing out, however, that one court stated that "the will of the parties (article 8 CISG) ... only has to be taken into account is so far as the contract ... has no clear provision since the contract precedes the CISG in the hierarchy of rules."[13]

Subjective intent of the party (article 8, paragraph 1)

6. Paragraphs 1 and 2 of article 8 set forth two sets of criteria and a hierarchy for those criteria: the ones set forth in article 8(1) have to be resorted to primarily,[14] before resorting to those contained in article 8(2). According to some courts, article 8(1) permits a substantial inquiry into the parties' "subjective"[15] and "real"[16] intent, "even if the parties did not engage in any objectively ascertainable means of registering this intent".[17] 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"[18] or could not have been unaware of it.[19] According to one court, "article 8(1) of the CISG, in recognizing subjective criteria for interpretation, invites an inquiry as to the true intent of the parties, but excludes the use of in-depth psychological investigations. Therefore, if the terms of the contract are clear, they are to be given their literal meaning, so parties cannot later claim that their undeclared intentions should prevail."[20]

7. A party who asserts that article 8(1) applies -- i.e., that the other party knew or could not have been unaware of the former party's intent -- must prove that assertion.[21]

8. The subjective intent of a party is irrelevant unless it is manifested in some fashion;[22] this is the rationale behind one court's statement that "the intent that one party secretly had, is irrelevant".[23] A different court stated that, due to the need that the intent be manifested in some fashion, the "Convention is indeed governed by the principle of reliance that is common to numerous legislations: it is applied to expressed declarations and to communications, but also to the persuasive conduct exhibited before or after the conclusion of a contract."[24]

9. One court stated that where a common intent of the parties can be discerned, that common intent is to be taken into account, even if the objective meaning attributable to the statements of the parties differs.[25]

10. Under article 8, courts must first attempt to establish the meaning of a party's statement or conduct by looking to the intent of that party, as an arbitral tribunal has emphasized;[26] however, "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."[27] According to one arbitral tribunal, application of article 8(1) requires either that the parties have a close relationship and know each other well, or that the import of the statements or conduct was clear and easily understood by the other party.[28]

Objective interpretation

11. Where it is not possible to use the subjective intent standard in article 8(1) to interpret a party's statements or conduct,[29] one must resort to "a more objective analysis"[30] as provided for by article 8(2),[31] which should allow the courts to determine "a presumptive"[32] or "normative"[33] intent. Under 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.[34] Several courts have characterized the result of an interpretation based on this criterion as a "reasonable interpretation".[35]

12. Article 8(2) has been applied in a variety of decisions.

In one case, a court inferred a buyer's intention to be bound to a contract, as well as the quantity of goods that the buyer intended to acquire under that contract, by interpreting the buyer's statements and conduct according to the understanding that a reasonable person of the same kind as the seller would have had in the same circumstances.[36] The court found that, absent any relevant circumstance or practice between the parties at the time the contract was concluded (which must always be taken into account), the buyer's intention to be bound, as well as a definite quantity of goods to be sold under the contract, could be deduced from the buyer's request to the seller to issue an invoice for goods that had already been delivered.

13. Article 14(1) of the Convention provides that a proposal for concluding a contract must be sufficiently definite in order to constitute an offer, and that it is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. Several courts have stated that, in determining whether a proposal satisfies this standard, it is sufficient if the required content would be perceived in the proposal by "'a reasonable person of the same kind' as the other party (offeree) ... 'in the same circumstances'".[37]

14. In determining the quality of the goods required by the parties' agreement, one Supreme Court has stated that, since the parties had a different understanding of the meaning of the contract, the contract language should be interpreted under 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 noted that the buyer was an expert and knew that it had not been offered a new machine, but instead one built fourteen years prior to the conclusion of the contract. Although the goods did not conform to the latest technical standards, the Supreme Court reasoned that, under the standard of article 8(2), the buyer concluded the contract with full knowledge of the technical limitations of the machinery and its accessories. For these reasons, the Supreme Court found that the machine tendered to the buyer conformed to the contract.[38]

15. Another court applied article 8(2) to determine whether a contract permitted the buyer to satisfy its obligation for the price of goods by offering, after the payment period specified in the contract had expired, to ship its own goods to the seller. Looking first to the language of the contract and then to the interpretation suggested by the parties' interests in the contract, the court found that the buyer was required to satisfy its obligations by the end of the contractual payment period: "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" merely because the buyer offered to ship goods to satisfy its payment obligations.[39]

16. Article 8(2) has also been used to determine whether a seller had implicitly waived, through its behaviour, its right to argue that the buyer's notice of lack of conformity in the goods was not timely (see article 39).[40] The fact that the seller negotiated with the buyer over the lack of conformity after receiving the notice, the court stated, did not necessarily waive the late-notice argument, but should instead be evaluated in conjunction with the other circumstances of the case. In the case at hand, however, 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".[41] In such circumstances, the court stated, "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 defence to the [buyer's] reimbursement claim". Thus under article 8(2) and article 8(3), the court held, the seller had waived its right to rely on the untimeliness of the notice. Another court has stated that a waiver of the seller's right to argue that the buyer's notice of non-conformity was untimely cannot be assumed merely because the seller remained willing to inspect the goods at the buyer's request.[42] This follows, the court suggested, both from the need for certainty in commercial transactions and from the principle of good faith, which also applies when interpreting the parties' statements or other conduct.

17. One court employed article 8(2) to interpret a "franco domicile" provision in a contract, finding that the clause addressed not only the cost of transport but also the passing of risk. The court interpreted the provision in line with the understanding that a reasonable person would have had in the same circumstances as those of the parties. In the court's view, a buyer entitled to delivery of goods "franco domicile" would not be concerned with transporting the goods or with insurance on them during carriage. The fact that the seller obtained transport insurance, the court argued, also indicated that the seller was prepared to take the risk during carriage, as did the fact that that it had used its own means of transport in previous transactions with the buyer. The court therefore concluded that the parties intended to provide for the passage of risk at the buyer's place of business, and accordingly to deviate from article 31 (a) CISG.[43] 18. Another court invoked article 8(2) to determine whether the conduct of a party established that an agreement as to the purchase price had been reached.[44] The buyer took delivery of the goods without contesting the price specified by the seller. The court, applying article 8(2), interpreted this conduct as acceptance of the seller's price.

19. The interpretive standard in article 8(2) has also been applied in determining whether a loss suffered by the aggrieved party should be considered foreseeable under article 74 of the Convention.[45]

20. According to one court, article 8(2) is based upon the contra proferentem rule, pursuant to which standard contract terms have to be interpreted in favour of the party against whom they are employed.[46]

Considerations relevant in interpreting statements or other conduct of a party

21. According to article 8(3), in determining a party's intent or the understanding a reasonable person would have had, due consideration is to be given to all relevant -- objective[47] -- circumstances of the case. Such circumstances specifically include[48] the negotiations,[49] any practices which the parties have established between themselves,[50] usages, and any subsequent conduct of the parties.[51] Several decisions[52] have noted that these criteria should be taken into account when interpreting a statement or other conduct under the standards of either article 8(1)[53] or article 8(2).[54]

22. In respect of the circumstances to be taken into account in determining the intent of the parties pursuant to article 8(1), one court stated that "the exact wording chosen by the parties as well as the systematic context are of particular relevance."[55] That court also stated that "any previous negotiations and subsequent conduct of the parties may indicate how they have actually understood their respective declarations of intent. Additionally, the actual intent can be construed on the basis of the parties' interests, the purpose of the contract and the objective circumstances at the time of the conclusion of the contract."[56] 23. In respect of the criteria to be taken into account when resorting to an article 8(2) interpretation, that same court stated that "the declarations of the parties must be interpreted according to their reasonable meaning in the light of wording, context and the principle of good faith ... Such an interpretation according to the principle of good faith seeks to determine the normative consensus, while the crucial factor will be an interpretation from the perspective of the recipient .... In accordance with article 8(3) CISG, 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 must be considered as well as the interests of either party and the purpose and systematic context of the contract."[57]

24. According to a different court, "examples of the conduct [referred to in article 8(3)] might be: Acceptance of the goods, payment of the purchase price, sending of an invoice or its signing by the buyer."[58] Similarly, one court stated that "[w]hen determining whether statements or other conduct count as an acceptance, [the conduct referred to in article 8(3)], implies the performance of the contract, or that prepares the performance, i.e., payment, acceptance of the goods without protest (possibly followed by processing) by the buyer, the start of production, or the sending of (part of) the goods by the seller."[59]

25. The express reference in article 8(3) to the parties' negotiations as an element to be taken into account in interpreting their statements or other conduct did not prevent one court from indicating that the "parol evidence rule" applies in transactions governed by the Convention.[60] This rule, which despite its name applies to both parol and written evidence, seeks to give legal effect to the contracting parties' intentions if they have adopted a written agreement as the final (a "partial integration"), or even final and complete (a "complete integration"), expression of their agreement.[61] If the written agreement is determined to be a complete integration, the parol evidence rule prohibits a party from introducing evidence of prior agreements or negotiations that would contradict, or even would add consistent additional terms to, the writing. Decisions by other courts in the same State take a contrary position.[62] One of those courts[63] stated that "the parol evidence rule is not viable in CISG cases in light of article 8 of the Convention"[64] because "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".[65] 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".[66]

26. After pointing out the problems that may arise under the Convention with respect to parol evidence, a court has stated that the parties can avoid such problems by including in their written agreement a merger clause that extinguishes prior agreements and understandings not expressed in the writing.[67] According to a different court, however, "extrinsic evidence should not be excluded, unless the parties actually intend the merger clause to have this effect."[68] According to that same court, "article 8 requires an examination of all relevant facts and circumstances when deciding whether the Merger Clause represents the parties' intent .... That is, to be effective, a merger clause must reflect 'the parties' intent.' This suggests that if either party had a contrary intent, the merger clause between them would have no effect."[69]

27. As several courts have pointed out,[70] subsequent conduct by the parties may show what a statement was intended to mean when it was made. In one case,[71] a court referred to a buyer's subsequent conduct to infer an intention to be bound to a contract, as well as to determine the quantity of goods covered by that contract, under the interpretive approach in article 8(2) (i.e., the understanding that a reasonable person of the same kind as the seller would have had in the same circumstances). The court held that, absent any relevant contrary circumstance or practice between the parties, a party's intention to be bound could be shown by its conduct after the conclusion of the contract. In particular, it held that the buyer's request to the seller to issue an invoice for textiles the seller had delivered to a third party (as contemplated by the parties' arrangement) was sufficient evidence of the buyer's intention to be bound. The fact that the buyer delayed two months before complaining about the quantity of goods delivered to the third party, furthermore, gave the court good grounds to conclude that the contract covered that quantity.

28. According to one court, reference to the circumstances listed in article 8(3) may lead to the conclusion that a party's silence amounted to acceptance of an offer.[72]

29. In addition to the elements expressly catalogued in article 8(3), the good faith principle referred to in article 7(1) (where it is mentioned as pertinent to the interpretation of the Convention itself) must also, according to one court, be taken into account in interpreting statements or other conduct of the parties.[73]

30. Finally, in respect of article 8(3), one court stated that "[t]he wording of this provision can also be understood in a way that contradictory conduct by a party bars that party from relying on a different meaning of its former conduct".[74]

Standard contract terms and the language of statements

31. Article 8 has also been invoked in addressing the question whether standard contract terms employed by one party became part of a contract.[75] In various cases[76] it was held that that the question was governed by the Convention's rules on interpretation rather than by domestic law. Citing article 8 of the Convention, several courts stated that whether a party's standard contract terms are part of its offer must be determined by reference to how a "reasonable person of the same kind as the other party" would have understood the offer; under this criterion, the courts asserted, standard terms become part of an offer only if the offeree is able "to become aware of them in a reasonable manner,"[77] and if the intention to incorporate such terms is apparent to the recipient of the offer.[78] Where such intention is ambiguous, the terms do not become part of the contract,[79] nor do they become part of the contract if they "differ from the expectation of the contractual partner to such an extent that the latter cannot reasonably be expected to have anticipated that such a clause might be included".[80] In addition, according to some courts, the Convention requires the user of general terms and conditions to transmit the text or make it available to the other party.[81]

32. In reaching similar conclusions regarding the incorporation of standard terms under the Convention, some courts also addressed the issue of the language in which the standard terms are expressed.[82] The courts stated that incorporation of standard terms must be determined by interpreting the contract in light of article 8. To be effective, the courts averred, a reference by one party to its standard terms must be sufficient to put a reasonable person of the same kind as the other party in a position to understand the reference and to gain knowledge of the standard terms. According to the courts, one relevant circumstance is the language in which the standard terms are written.[83] In one of the cases, the seller's standard contract terms were not in the language of the contract, and one of the courts asserted that the seller should have given the buyer a translation. Because the seller had not done so, its standard contract terms did not become part of the contract. A similar approach was adopted by another court, which stated that standard contract terms written in a language different from that of the contract do not bind the other party.[84]

33. The language issue was also dealt with in another decision[85] in which the court held that a case-by-case approach must be employed in determining the effectiveness of a notice written in a language other than the language in which the contract was made or the language of the addressee. Under article 8(2) and article 8(3), the court asserted, the question must be evaluated from the perspective of a reasonable person, giving due consideration to usages and practices observed in international trade. The mere fact that a notice was in a language that was neither that of the contract nor that of the addressee did not necessarily prevent the notice from being effective: the notice language might be one normally used in the pertinent trade sector, and thus potentially binding on the parties under article 9; or, as in the case before the court, the recipient might reasonably have been expected to request from the sender explanations or a translation.

34. In a different case, the court stated that for the standard contract terms to become part of the contract, they have to be drafted "either in the language of the contract, or in that of the opposing party or a language that the opposing party knows".[86] In a different case, a court stated that standard contract terms "are only incorporated if ... the other contracting party is given sufficient opportunity to take note of them, either in the language of negotiations or in its native language."[87]

35. Another court[88] has held that, if a party accepts statements relating to the contract in a language different from the one used for the contract, the party is bound by the contents of such statements; it is the party's responsibility to acquaint itself with those contents.

36. In yet another decision, one court stated that for the standard contract terms to become part of the offer it is sufficient that they be drafted in a common language.[89]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,400 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. CLOUT case No. 303 [ICC Court of Arbitration of the International Chamber of Commerce, 1994 (Arbitral award no. 7331)] (see full text of the decision).

2. See CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; [AUSTRIA Oberster Gerichtshof 24 April 1997].

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. See also CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision), stating that article 8 "applies to all declarations, actions and omissions of the parties that may have an effect on the conclusion or execution of the contract."

5. See CLOUT case No. 429 [GERMANY Oberlandesgericht Frankfurt 30 August 2000]; CLOUT case No. 424 [AUSTRIA Oberster Gerichtshof 9 March 2000]; [GERMANY Landgericht Zwickau 19 March 1999]; CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof 20 March 1997]; CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996]; CLOUT case No. 334 [SWITZERLAND Obergericht des Kantons Thurgau 19 December 1995]; CLOUT case No. 330 [SWITZERLAND Handelsgericht des Kantons St. Gallen 5 December 1995] (see full text of the decision); CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994].

6. CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998] (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).

7. CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997] (dealing with the issue of whether a certain conduct amounted to avoidance of the contract) (see full text of the decision).

8. CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision); [FINLAND Appellate Court Helsinki 31 May 2004]; CLOUT case No. 5 [GERMANY Landgericht Hamburg 26 September 1990] (see full text of the decision).

9. 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.

10. CLOUT case No. 303 [ICC Court of Arbitration of the International Chamber of Commerce, 1994 (Arbitral award no. 7331)] (see full text of the decision).

11. 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; in case law see [FINLAND Appellate Court Helsinki 31 May 2004]; CLOUT case No. 877 [SWITZERLAND Bundesgericht 22 December 2000].

12. [GERMANY Oberlandesgericht Köln 2 July 2007].

13. [BELGIUM Hof van Beroep Antwerpen 24 April 2006].

14. [SWITZERLAND Handelsgericht Aargau 26 November 2008]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 September 2008]; [SWITZERLAND Zivilgericht Basel-Stadt 8 November 2006].

15. [UNITED STATES District Court, Southern District of New York 18 January 2011]; [SWITZERLAND Handelsgericht Aargau 26 November 2008]; CLOUT case No. 844 [UNITED STATES District Court, Kansas 28 September 2007] (see full text of the decision); CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision); [UNITED STATES District Court, Southern District of New York 23 August 2006]; CLOUT case No. 911 [SWITZERLAND Cour de justice de Genève 12 May 2006] (see full text of the decision); [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 429 [GERMANY Oberlandesgericht Frankfurt 30 August 2000]; CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision).

16. [SWITZERLAND Handelsgericht Aargau 5 February 2008]; [SPAIN Audiencia Provincial de Navarra, sección 3 27 December 2007]; [GERMANY Oberlandesgericht Stuttgart 15 May 2006]; CLOUT case No. 931 [SWITZERLAND Bundesgericht 5 April 2005] (see full text of the decision); CLOUT case No. 578 [UNITED STATES District Court, Western District of Michigan 17 December 2001] (see full text of the decision); CLOUT case No. 607 [GERMANY Oberlandesgericht Köln 16 July 2001]; CLOUT case No. 617 [UNITED STATES District Court, Northern District of California 30 January 2001].

17. CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision).

18. CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (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 [UNITED STATES District Court, Southern District of New York 18 January 2011]; [ICC Court of Arbitration of the International Chamber of Commerce, Switzerland, 2000 (Arbitral award No. 10329)]; CLOUT case No. 313 [FRANCE Cour d'appel Grenoble 21 October 1999] (see full text of the decision); CLOUT case No. 268 [GERMANY Bundesgerichtshof 11 December 1996].

19. For references to this part of article 8(1), see [UNITED STATES District Court, Maryland 8 February 2011]; CLOUT case No. 1034 [SPAIN Audiencia Provincial de Cáceres 14 July 2010]; CLOUT case No. 851 [SPAIN Audiencia Provincial de Madrid, sección 14 20 February 2007]; CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision); [SWITZERLAND Zivilgericht Basel-Stadt 8 November 2006]; CLOUT case No. 777 [UNITED STATES Court of Appeals (11th Circuit) 12 September 2006]; [UNITED STATES District Court, Southern District of New York 23 August 2006]; CLOUT case No. 911 [SWITZERLAND Cour de justice de Genève 12 May 2006] (see full text of the decision); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 April 2006]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 7 December 2005]; [SWITZERLAND Obergericht des Kantons Zug 5 July 2005]; CLOUT case No. 931 [SWITZERLAND Bundesgericht 5 April 2005] (see full text of the decision); [NETHERLANDS Netherlands Arbitration Institute 10 February 2005]; [SWITZERLAND Kantonsgericht Freiburg 11 October 2004]; CLOUT case No. 890 [SWITZERLAND Tribunale d'appello Lugano 29 October 2003] (see full text of the decision); [SWITZERLAND Bundesgericht 4 August 2003]; [BELGIUM van Koophandel Hasselt 26 May 2003]; CLOUT case No. 537 [AUSTRIA Oberlandesgericht Graz 7 March 2002]; [NEW ZEALAND Court of Appeal Wellington 27 November 2000]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997] (see full text of the decision).

20. [SPAIN Audiencia Provincial de Navarra, sección 3 27 December 2007].

21. CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997] (see full text of the decision).

22. [SWITZERLAND Zivilgericht Basel-Stadt 8 November 2006]; CLOUT case No. 911 [SWITZERLAND Cour de justice de Genève 12 May 2006] (see full text of the decision).

23. CLOUT case No. 5 [GERMANY Landgericht Hamburg 26 September 1990] (see full text of the decision).

24. CLOUT case No. 911 [SWITZERLAND Cour de justice de Genève 12 May 2006] (see full text of the decision).

25. [GERMANY Oberlandesgericht Hamm 12 November 2001].

26. [ICC Court of Arbitration of the International Chamber of Commerce, 1995 (Arbitral award No. 8324)].

27. CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision); for similar statements, see also CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision).

28. [ICC Court of Arbitration of the International Chamber of Commerce, 1995 (Arbitral award No. 8324)].

29. For a case stating that resort to article 8(2) was to be had since subjective intent could not be proven, see [UNITED STATES District Court, Southern District of New York 18 January 2011].

30. [ICC Court of Arbitration of the International Chamber of Commerce, 1995 (Arbitral award No. 8324)]; for other cases that refer expressly to interpretation under article 8(2) as being more "objective," see [UNITED STATES District Court, Southern District of New York 18 January 2011]; [UNITED STATES District Court, Colorado 6 July 2010]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 September 2008]; [GERMANY Oberlandesgericht Hamburg 25 January 2008]; CLOUT case No. 844 [UNITED STATES District Court, Kansas 28 September 2007] (see full text of the decision); CLOUT case No. 911 [SWITZERLAND Cour de justice de Genève 12 May 2006] (see full text of the decision); [AUSTRIA Oberlandesgericht Linz 23 January 2006]; [AUSTRIA Oberlandesgericht Linz 23 March 2005]; CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002]; CLOUT case No. 607 [GERMANY Oberlandesgericht Köln 16 July 2001]; CLOUT case No. 877 [SWITZERLAND Bundesgericht 22 December 2000]; CLOUT case No. 429 [GERMANY Oberlandesgericht Frankfurt 30 August 2000]; CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision); [NETHERLANDS Hoge Raad 7 November 1997]; CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996].

31. It may well be that neither article 8(1) nor article 8(2) leads to an interpretation wanted by a party: see [NETHERLANDS Hoge Raad 7 November 1997].

32. [SWITZERLAND Handelsgericht Aargau 26 November 2008].

33. [SWITZERLAND Handelsgericht Aargau 5 February 2008]; CLOUT case No. 931 [SWITZERLAND Bundesgericht 5 April 2005] (see full text of the decision); CLOUT case No. 877 [SWITZERLAND Bundesgericht 22 December 2000] (see full text of the decision).

34. [SWITZERLAND Kantonsgericht St. Gallen 15 June 2010]; [NETHERLANDS Rechtbank Arnhem 7 October 2009]; [BRAZIL Tribunal de Justiça do Rio Grande do Sul 20 May 2009]; [SLOVAKIA Supreme Court 30 April 2008]; [SWITZERLAND Handelsgericht Aargau 5 February 2008]; [GERMANY Bundesgerichtshof 27 November 2007]; CLOUT case No. 844 [UNITED STATES District Court, Kansas 28 September 2007]; CLOUT case No. 828 [NETHERLANDS Hof 's-Hertogenbosch 2 January 2007]; CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision); CLOUT case No. 777 [UNITED STATES Court of Appeals (11th Circuit) 12 September 2006]; [UNITED STATES District Court, Southern District of New York 23 August 2006]; CLOUT case No. 911 [SWITZERLAND Cour de justice de Genève 12 May 2006] (see full text of the decision); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 April 2006]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 7 December 2005]; [SWITZERLAND Obergericht des Kantons Zug 5 July 2005]; CLOUT case No. 931 [SWITZERLAND Bundesgericht 5 April 2005] (see full text of the decision); [NETHERLANDS Netherlands Arbitration Institute 10 February 2005]; [SWITZERLAND Kantonsgericht Freiburg 11 October 2004]; CLOUT case No. 553 [SPAIN Audiencia Provincial Barcelona, sección 16 28 April 2004]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003]; CLOUT case No. 890 [SWITZERLAND Tribunale d'appello Lugano 29 October 2003] (see full text of the decision); [SWITZERLAND Bundesgericht 4 August 2003]; [BELGIUM Rechtbank van Koophandel Hasselt 26 May 2003]; [GERMANY Oberlandesgericht Schleswig-Holstein 29 October 2002]; [SERBIA Foreign Trade Arbitration Court attached to the Yugoslav Chamber of Commerce in Belgrade 25 May 2001]; [NEW ZEALAND Court of Appeal Wellington 27 November 2000]; [GERMANY Landgericht Zwickau 19 March 1999]; CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof 20 March 1997]; [NETHERLANDS Hoge Raad 7 November 1997]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997] (see full text of the decision); CLOUT case No. 166 [GERMANY Schiedsgericht der Handelskammer Hamburg, 21 June 1996] (see full text of the decision); [HUNGARY Arbitration Court of the Chamber of Commerce and Industry of Budapest 17 November 1995 (Arbitration award No. Vb 94124)] CLOUT case No. 308 [AUSTRALIA Federal Court of Australia 28 April 1995] (see full text of the decision); CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994].

35. [UNITED STATES District Court, Colorado 6 July 2010]; CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997]. For a reference to a "reasonable interpretation", albeit without express citation to article 8(2), see [NETHERLANDS Rechtbank Arnhem 11 February 2009].

36. CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997] (see full text of the decision).

37. [GERMANY Oberlandesgericht München 14 January 2009]; CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994].

38. CLOUT case No. 877 [SWITZERLAND Bundesgericht 22 December 2000) (see full text of the decision).

39. [GERMANY Oberlandesgericht Dresden 27 December 1999] (internal citations to Convention omitted).

40. CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998].

41. Ibid. (internal citations to Convention omitted) (see full text of the decision).

42. CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (see full text of the decision).

43. CLOUT case No. 317 [GERMANY Oberlandesgericht Karlsruhe 20 November 1992].

44. CLOUT case No. 151 [FRANCE Cour d'appel de Grenoble 26 April 1995].

45. CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002].

46. [GERMANY Oberlandesgericht Stuttgart 31 March 2008].

47. For this qualification, see [SWITZERLAND Handelsgericht Aargau 26 November 2008].

48. 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, paragraph 3 is not an exhaustive list of elements to be taken into account in interpreting statements or other conduct by the parties.

49. See [UNITED KINGDOM Court of Appeal 17 February 2006; [ICC Court of Arbitration of the International Chamber of Commerce, France, 2003 (Arbitral award in case No. 11849)].

50. For cases resorting to the practices established between the parties as an element used to determine intent, see [UNITED STATES District Court, Southern District of New York 18 January 2011]; [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; [SWITZERLAND Handelsgericht Aargau 5 February 2008]; CLOUT case No. 750 [AUSTRIA Oberster Gerichtshof 31 August 2005] (see full text of the decision).

51. For references to article 8(3) in case law, see [UNITED STATES District Court, Eastern District of Pennsylvania 29 January 2010]; [GERMANY Oberlandesgericht München 14 January 2009]; [SWITZERLAND Handelsgericht Aargau 5 February 2008]; CLOUT case No. 802 [SPAIN Tribunal Supremo 17 January 2008] (see full text of the decision); [GERMANY Oberlandesgericht Köln 2 July 2007]; CLOUT case No. 828 [NETHERLANDS Hof 's-Hertogenbosch 2 January 2007]; CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision); [SWITZERLAND Zivilgericht Basel-Stadt 8 November 2006]; [UNITED STATES District Court, Southern District of New York 23 August 2006]; [CZECH REPUBLIC Supreme Court, Czech Republic, 29 March 2006]; [SWITZERLAND Obergericht des Kantons Zug 5 July 2005]; [AUSTRIA Oberlandesgericht Linz 23 March 2005]; [NETHERLANDS Netherlands Arbitration Institute 10 February 2005]; [SWITZERLAND Kantonsgericht Zug 2 December 2004]; [SWITZERLAND Kantonsgericht Freiburg 11 October 2004]; CLOUT case No. 890 [SWITZERLAND Tribunale d'appello Lugano 29 October 2003] (see full text of the decision); [SWITZERLAND Bundesgericht 4 August 2003]; [BELGIUM Rechtbank van Koophandel Hasselt 26 May 2003]; CLOUT case No. 576 [UNITED STATES Circuit Court of Appeals (9th Circuit) 5 May 2003]; [RUSSIA Federal Arbitration Court for the Volgo-Vyatsky Circuit 20 December 2002]; [BELGIUM Hof van Beroep Antwerpen 16 December 2002]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 8 November 2002]; [NEW ZEALAND High Court, Auckland 27 March 2002]; [NEW ZEALAND Court of Appeal Wellington 27 November 2000]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997]; CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994].

52. See [UNITED KINGDOM House of Lords 1 July 2009]; [ICC Court of Arbitration of the International Chamber of Commerce, 1995 (Arbitral award No. 8324/1995)].

53. CLOUT case No. 268 [GERMANY Bundesgerichtshof 11 December 1996], expressly stating that the elements referred to in article 8, paragraph 3 have to be taken into account when interpreting a statement or other conduct by a party in the light of article 8, paragraph 1 (see full text of the decision).

54. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994].

55. [SWITZERLAND Handelsgericht Aargau 26 November 2008].

56. Ibid.; see also CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006] (see full text of the decision).

57. [SWITZERLAND Handelsgericht Aargau 26 November 2008]; see also [SWITZERLAND Handelsgericht Aargau 5 February 2008]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 May 2005].

58. [AUSTRIA Oberlandesgericht Linz 23 March 2005].

59. [BELGIUM Rechtbank van Koophandel Tongeren 25 January 2005].

60. CLOUT case No. 24 [UNITED STATES Court of Appeals (5th Circuit) 15 June 1993].

61. For a definition of the parol evidence rule in a case governed by the Convention, see [UNITED STATES District Court, Eastern District of Pennsylvania 29 January 2010].

62. See [UNITED STATES District Court, Eastern District of Pennsylvania 29 January 2010]; CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998]; CLOUT case No. 578 [UNITED STATES District Court, Western District of Michigan 17 December 2001] (see full text of the decision); CLOUT case No. 434 [UNITED STATES District Court, Northern District of Illinois 28 August 2001] (see full text of the decision); CLOUT case No. 419 [UNITED STATES District Court, Northern District of Illinois 27 October 1998].

63. CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998].

64. Ibid. (see full text of the decision).

65. CLOUT case No. 23 [UNITED STATES District Court, Southern District of New York 14 April 1992] (see full text of the decision).

66. CLOUT case No. 413 [UNITED STATES District Court, Southern District of New York 6 April 1998] (see full text of the decision).

67. CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision).

68. [UNITED STATES District Court, Southern District of New York 23 August 2006].

69. Ibid.

70. [UNITED STATES District Court, Colorado 6 July 2010]; CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997]; CLOUT case No. 5 [GERMANY Landgericht Hamburg 26 September 1990] (see full text of the decision).

71. CLOUT case No. 215 [SWITZERLAND Bezirksgericht St. Gallen 3 July 1997] (see full text of the decision).

72. CLOUT case No. 23 [UNITED STATES District Court, Southern District of New York 14 April 1992].

73. CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (see full text of the decision); CLOUT case No. 166 [GERMANY Schiedsgericht der Handelskammer Hamburg, 21 June 1996].

74. [AUSTRIA Oberlandesgericht Linz 23 March 2005].

75. Contra, see [NETHERLANDS Rechtbank Arnhem 17 March 2004], stating that "[b]ecause the application of general conditions is not expressly dealt with in the mentioned provisions of the CISG, the question has to be answered with the further applicable substantive law."

76. [UNITED STATES District Court, Maryland 8 February 2011]; [GERMANY Oberlandesgericht Celle 24 July 2009]; [NETHERLANDS Rechtbank Utrecht 21 January 2009]; [GERMANY Oberlandesgericht München 14 January 2009]; [GERMANY Landgericht Landshut 12 June 2008]; [ITALY Tribunale di Rovereto 21 November 2007]; CLOUT case No. 827 [NETHERLANDS Hof 's-Hertogenbosch 29 May 2007]; CLOUT case No. 828 [NETHERLANDS Hof 's-Hertogenbosch 2 January 2007]; [GERMANY Landgericht Coburg 12 December 2006]; [ITALY Tribunale di Rovereto 24 August 2006]; CLOUT case No. 750 [AUSTRIA Oberster Gerichtshof 31 August 2005] (see full text of the decision); [AUSTRIA Oberlandesgericht Linz 8 August 2005]; [AUSTRIA Oberlandesgericht Linz 23 March 2005]; CLOUT case No. 831 [NETHERLANDS Hoge Raad 28 January 2005]; CLOUT case No. 821 [GERMANY Oberlandesgericht Karlsruhe 20 July 2004]; [GERMANY Oberlandesgericht Düsseldorf 21 April 2004]; CLOUT case No. 592 [GERMANY Oberlandesgericht Düsseldorf 30 January 2004]; CLOUT case No. 819 [GERMANY Landgericht Trier 8 January 2004]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003]; [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; CLOUT case 445 [GERMANY Bundesgerichtshof 31 October 2001].

77. CLOUT case 445 [GERMANY Bundesgerichtshof 31 October 2001] (see full text of the decision); see also [GERMANY Oberlandesgericht Celle 24 July 2009]; [NETHERLANDS Rechtbank Utrecht 21 January 2009]; [GERMANY Oberlandesgericht München 14 January 2009]; [GERMANY Landgericht Landshut 12 June 2008]; [ITALY Tribunale di Rovereto 24 August 2006]; [AUSTRIA Oberlandesgericht Linz 8 August 2005]; CLOUT case No. 592 [GERMANY Oberlandesgericht Düsseldorf 30 January 2004]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003].

78. [NETHERLANDS Rechtbank Utrecht 21 January 2009]; [GERMANY Oberlandesgericht München 14 January 2009]; [ITALY Tribunale di Rovereto 21 November 2007]; [AUSTRIA Oberlandesgericht Linz 23 March 2005]; [AUSTRIA Oberlandesgericht Innsbruck 1 February 2005]; CLOUT case No. 592 [GERMANY Oberlandesgericht Düsseldorf 30 January 2004]; [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; CLOUT case 445 [GERMANY Bundesgerichtshof 31 October 2001].

79. [UNITED STATES District Court, Maryland 8 February 2011]; see also [AUSTRIA Oberlandesgericht Linz 8 August 2005], stating that "a party which desires to contract only according to its own standard terms and conditions requires an unambiguous declaration of that intent." See also [AUSTRIA Oberster Gerichtshof 26 January 2005].

80. [GERMANY Landgericht Landshut 12 June 2008].

81. [GERMANY Landgericht Stuttgart 15 October 2009]; [GERMANY Oberlandesgericht Celle 24 July 2009]; [NETHERLANDS Rechtbank Utrecht 21 January 2009]; [GERMANY Oberlandesgericht München 14 January 2009]; [GERMANY Landgericht Landshut 12 June 2008]; [ITALY Tribunale di Rovereto 21 November 2007]; CLOUT case 445 [GERMANY Bundesgerichtshof 31 October 2001] (see full text of the decision).

82. See [ITALY Tribunale di Rovereto 21 November 2007]; [AUSTRIA Oberlandesgericht Linz 8 August 2005]; [AUSTRIA Oberlandesgericht Innsbruck 1 February 2005]; [GERMANY Oberlandesgericht Düsseldorf 21 April 2004]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003]; [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; CLOUT case No. 345 [GERMANY Landgericht Heilbronn 15 September 1997].

83. [ITALY Tribunale di Rovereto 21 November 2007]; [GERMANY Oberlandesgericht Düsseldorf 21 April 2004].

84. [BELGIUM Rechtbank Koophandel Hasselt 2 June 1999].

85. CLOUT case No. 132 [GERMANY Oberlandesgericht Hamm 8 February 1995].

86. [ITALY Tribunale di Rovereto 21 November 2007].

87. [GERMANY Landgericht Memmingen 13 September 2000].

88. CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996].

89. [AUSTRIA Oberlandesgericht Innsbruck 1 February 2005]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003]. For a case referring to the language issue without, however, conclusively deciding the issue, see [GERMANY Oberlandesgericht Düsseldorf 21 April 2004].


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