(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.
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For a Doctoral thesis on "Reasonableness" in International Commercial Law, go to Guillaume Weiszberg, Le "Raisonnable" en Droit du Commerce International [pour le doctorat en droit de l’Université Panthéon-Assas (Paris II), 7 novembre 2003]
The phrase "of the same kind as the other party" was added to paragraph (2) of the 1978 Draft. Delegates to the 1980 Vienna Diplomatic Conference report as follows on its meaning.
Shafik states:
The addition of this phrase conformed the English text to a modification to the French text incorporating the phrase "de même qualité" which is said to refer to "a person from the same background as the person concerned and engaged in the same occupation, the same trade activities for example" (Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March - 11 April 1980, A/CONF.97/19, page 261, para. 30).
Kopac states:
"[T]he words 'a reasonable person of the same kind" were intended to refer to the party to whom the statement was addressed and not to the party making the statement or performing the conduct. . . ." (Ludvig Kopac, id. at 243).
Honnold states:
"A person with technical skill and knowledge [is] required to make his statement in such a way as to make his meaning clear to a person not possessed of such skill and knowledge" (John O. Honnold, id.).
Feltham states:
"The reference to a reasonable person of the same kind is intended to ensure that the statements of a tractor salesman from a developed country to a Nusquamian peasant are to be interpreted as they would be understood by the reasonable Nusquamian peasant" (J. D. Feltham, "The United Nations Convention on Contracts for the International Sale of Goods" 1981 J. Bus. L. 349).
Vilus states:
"The criterion of 'reasonable person' which keeps recurring in the entire Convention is taken over from the common law system in its pure form. . . . Undoubtedly . . . the most significant [reference to this concept is in] Article 8 by which criteria are determined for the interpretation of the contract. According to that article '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.'
"Further text in the same article goes on for the case of an impossibility to apply that rule while stating that '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.' In contrast to that criterion which is taken over from the common law system, the civil law system usually speaks of 'a bonus pater familias' or 'good businessman'. . . ."
"[T]he criterion of 'a reasonable person' is followed by the sentence according to which his conduct shall be assessed in conformity with the conduct of a person 'of the same kind'. . . .It was considered that these additional words would make the reasonable person criterion more impartial, since it was related to a person engaged in the same branch of business, or in the same trade, etc. Professor Farnsworth considers that the formulation in paragraph 2 of Article 8 is good since it is not given in an abstract way, instead being specifically related to the conduct of the specific party. This author further elaborates that a judge shall have regard as to whether the other party is of the same technical quality,whether he speaks the same language [E. Allan Farnsworth, in: Bianca/BonellCommentary on the International Sales Law, Milan: Giuffré (1987) 99] and, altogether,whether and to what degree there exists the similarity between the two persons whose conduct has to be compared with one another" (Jelena Vilus, "Common Law Institutions in the UN Sales Convention" in: Studios en Homenaje a Jorge Barrera Graf, vol. II (Mexico: Universidad Nac. Aut. de Mexico, 1989), pp. 1437, 1440-1441).
[8(2)]:"
Pace Law School Institute of International Commercial Law
- Last updated January 15, 2014
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