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Legislative history of CISG article 9:
Match-up with 1978 Draft to assess relevance of Secretariat Commentary
1978 Draft article 8 CISG article 9
(1)The parties are bound by any usage (1)The parties are bound by any usage to which they have agreed and by to which they have agreed and by any practices which they have es- any practices which they have es- tablished between themselves. tablished between themselves.
(2)The parties are considered, unless (2)The parties are considered, unless otherwise agreed, to have impliedly otherwise agreed, to have impliedly made applicable to their contract a made applicable to their contract or usage of which the parties knew or its formation a usage of which the ought to have known and which in parties knew or ought to have international trade is widely known known and which in international to, and regularly observed by, par- trade is widely known to, and regu- ties to contracts of the type involved larly observed by, parties to con- in the particular trade concerned. tracts of the type involved in the particular trade concerned.
The only difference between CISG article 9 and 1978 Draft article 8 is the reference to the "contract or its formation", rather than simply the "contract". The explanation is:
"Mr. FARNSWORTH (United States of America) said that [this] amendment... stipulated that usages concerning the formation of contracts could also vary the provisions of the Convention. Examples might arise under [CISG article 16], because it was conceivable that an offer might not be revocable, and under [CISG article 18(1)] because silence could in certain cases, amount to acceptance" (Official Records, p.264).
The Secretariat Commentary on 1978 Draft article 8 should be read in conjunction with this explanation.
To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG