ANNOTATED TEXT OF CISG
Article 8

(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.

Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)

Guide to this article

• UNCITRAL outline of issues present
  
• Editorial analysis of this article with cross-references to related subjects [not yet available]
  
• Secretariat Commentary (closest counterpart to an Official Commentary on this article)
  • Match-up of this article with the 1978 draft
  (to validate Secretariat Commentary)
• Applications of Article 8 in the context of the Parol Evidence Rule, Plain Meaning Rule, and Contract Merger Clauses
  • CISG-AC Advisory Opinion no. 3
• Use of the UNIDROIT Principles to help interpret CISG Article 8
  • Editorial analysis: Joseph M. Perillo [U.S]
• Use of the Principles of European Contract Law to help interpret CISG article 8
  • Editorial analysis: Maja Stanivukovic [Yugoslavia]
  • Match-ups with Continental and Common Law domestic rules, doctrine and jurisprudence
• Use of the Proposed Common European Sales Law to help interpret CISG article 8
• Related lex mercatoria material

• Roadmap to the legislative history of this article
• Legislative history of this article: long form
• Legislative history of this article: short form
  • Chronology of development of Article 8 at the 1980 Vienna Diplomatic Conference
• Summary of UNCITRAL legislative history
• Hague Convention antecedents
  • Article 8 match-up with Hague Convention antecedents (with illustrative citations to experience under ULIS/ULF rules of interpretation)
  • ULIS (full-text) and André Tunc Commentary on ULIS
  • ULF (full-text)
  • See also the Report of the Special U.S. Committee, dated 1 December 1964,
    explaining why the United States elected not to adopt either ULIS or ULF

• CASES INVOLVING CISG ARTICLE 8
  • Computer list of annotated cases

• For a companion report on CISG case law and other material, go to Unilex: click for description of and link to this excellent service

• See also:
  • UNCITRAL digest

  • UNCITRAL digest + added cases
  • Martin Karollus [Austria], excerpt from Judicial Interpretation and Application of the CISG in Germany 1988-1994, Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

  • For the leading case on the impact of Article 8 on the U.S. parol evidence rule, go to MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S.p.A., 144 F.3d (11th Cir. 1998)

  • See also:
  • United States 6 July 2010 District Court [Colorado] (Alpha Prime Development Corporation, Plaintiff, v. Holland Loader)
  • Spain 14 July 2010 Cáceres Court of Appeals (Rolls of rubber case)
  • United States 8 February 2011 Federal District Court [Maryland] (CSS Antenna, Inc. v. Amphenol-Tuchel Electronics, GMBH.)

• Selected monographs and anthologies
• Comments on Article 8 by Gyula Eörsi [Hungary] at 1984 Parker School seminar of the American Association for the Comparative Study of Law: Ch. 2, pp. 13-20
• Comments on Article 8 from seminal 1986 text by Peter Schlechtriem [Germany]
• Comments on Article 8 from monograph by Jacob S. Ziegel [Canada]

• Comments on Article 8 by E. Allan Farnsworth [U.S.] in 1987 Bianca-Bonell Commentary on the International Sales Law
• Comments on Article 8 by John O. Honnold [U.S.] in the 3rd ed. (1999) of the most frequently cited text on the CISG: Uniform Law for International Sales

• Comments on Article 8 in December 2000 text by Joseph Lookofsky [Denmark / U.S.]
• Commentarios al Articulo 8 sobre textos de 2001 por Pilar Perales [España]

• See also the helpful Enderlein & Maskow text (cited below under the words and phrases section of this Annotated Text material)
• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries
• Petra Butler, comments on parol evidence in presentation at Singapore International Arbitration Centre and UNCITRAL seminar on Celebrating Success: 25 Years United Nations Convention on the International Sale of Goods, Singapore (22-23 September 2005) at pp. 56-61

• Petra Butler, The Use of the CISG in Domestic Law, [papers from Uniform Sales Law: the CISG at its 30th Anniversary, a conference in memory of Albert H. Kritzer, 12-13 November 2010, Belgrade] The Annals of the Faculty of Law in Belgrade - Belgrade Law Review, Year LIX (2011) no. 3 pp. 7-27

• Peter J. Calleo, The inapplicability of the parol evidence rule to the United Nations Convention on Contracts for the International Sale of Goods, 26 Hofstra Law Review (2000) 799-833

• Chan Leng Sun [Singapore], Interpreting an International Sale Contract, presentation at UNCITRAL -- SIAC Seminar on Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods, Singapore (22 September 2005) 16 p.

• Harry M. Flechtner [U.S.], The U.N. Sales Convention (CISG) and MCC-Marble Ceramic Center Inc. v. Ceramica Nuova D'Agostino, S.p.A. : The Eleventh Circuit Weighs in on Interpretation, Subjective Intent, Procedural Limits to the Convention's Scope, and the Parol Evidence Rule, 18 Journal of Law and Commerce (1999) 259-287

• Peter Huber [Germany], excerpt from Some Introductory Remarks on the CISG, Internationales Handelsrecht (December 2006) 235-237
• Felix Lautenschlager [Germany], Current Problems Regarding the Interpretation of Statements and Party Conduct under the CISG - The Reasonable Third Person, Language Problems and Standard Terms and Conditions, 11 Vindobona Journal of International Commercial Laws and Arbitration (2/2007) 259-290

• John E. Murray, Jr. [U.S.], excerpt from 8 Journal of Law and Commerce 1998) 11-51

• Peter Schlechtriem [Germany], excerpt from Uniform Sales Law: The Experience with Uniform Sales Laws in the Federal Republic of Germany, Juridisk Tidskrift (Stockholm) (1991/92) 1-28

• Bruno Zeller [Australia], Determining the Contractual Intent of Parties under the CISG and the Common Law - A Comparative Analysis, 4 European Journal of Law Reform (4/2002) 629-643
• Bruno Zeller [Australia], The Parol Evidence rule and the CISG - a comparative analysis (2003)
• Supplementary list of citations to Article 8 commentaries: Unilex citations*

  * Most members of the Autonomous Network of CISG Websites also offer bibliographies. Many are tailored, concentrating on commentaries by authors from or writing on CISG issues of special interest to specific countries or regions; some, e.g. CISG online are general and extensive; some, e.g., CISG-Belgium and CISG-Finland also list commentaries by individual articles of the CISG.

• To identify other relevant commentaries, go to the cisgw3 Bibliography and Bibliography Search Form [intent, parol evidence and general provisions are search form entries you may wish to consider]

  Bibliography citations on parol evidence

  Citations on general provisions

  Citations on intent

  We also encourage you to tailor your own cisgw3 bibliography search to the specific aspect of this article that you are researching.*

  * The cisgw3 bibliography contains over 500 pages of citations. Analyzing these listings can pay dividends.

Links to related articles

• Article 8 [Interpretation of statements or other conduct of a party] is relevant to many provisions of the CISG; go to Table of Contents to Annotated Text of CISG

Words, phrases and concepts

• The Enderlein & Maskow text is a good place to commence words and phrases research. Click for their analysis of words, phrases and concepts in this article.

  See also:

• "could not have been unaware" [8(1)]: link to same language and to variations on this theme recited elsewhere in the CISG

• reasonableness [8(2), (3)]: In addition to being specifically mentioned in this article, reasonableness is a general principle of the CISG
  • For the definition of reasonableness recited in the Principles of European Contract Law and references to reasonableness in Continental and Common Law domestic rules, doctrine and jurisprudence, go to PECL article 1:302 and the comment and notes prepared for this provision

  • To drive home the correlation between the PECL's definition of reasonableness and the evident same meaning of this term to CISG legislators when they used the concept either specifically or as a general principle of the uniform law they drafted, see overview comments and comments that illustrate the similar manner in which this concept fits the CISG

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]

• "a reasonable person of the same kind as the other party [8(2)]:"

  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).