LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG Article 8 with ULIS/ULF provisions
  
• Comments on the matchup
  
• Experience gained under ULIS/ULF rules of interpretation

     CISG Article 8                 ULIS Article 9(3) and 
                                        ULF Article 13(2)   
 
1. For purpose of this          Where expression, 
Convention statements           provisions or form of 
made by and other               contract commonly used 
conduct of a party are to       in commercial practice are 
be interpreted according        employed, they shall be 
are to his intent               interpreted according to the 
where the other party           meaning usually given to 
knew or could not               them in the trade concerned. 
have been unaware               [ULF Article 13(2) is identical]   
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. 
 
 
SEE ALSO: 
 
ULF Article 4(2). Th[e] communication [which one person  
addresses to one or more specific persons with the object of 
concluding a contract of sale] may be interpreted by  
reference to and supplemented by the preliminary negotiations, 
any practices which the parties have established between themselves, 
usage and any applicable legal rules for contracts of sale. 
 
ULF Article 5(3).  An indication that the offer is firm or
irrevocable 
may be express or implied from the circumstances, the preliminary 
negotiations, any practices which the parties have established 
between themselves or usage. 

Comments on the match-up

ULIS/ULF experience

The author of this chapter is Werner Junge, Attorney, Bonn. [Bracketed] material following each case citation identifies the page of his chapter and the footnote he provides. Click here for schedule of abbreviations contained in his case citations.

Experience gained under ULIS/ULF rules of interpretation

The material we have excerpted pertains only to case law under the Uniform Law that preceded the CISG -- jurisprudence that parties have regarded as relevant because the CISG drafting process commenced with that Law. See the cited chapter of the Schlechtriem Commentary for a comprehensive analysis of CISG Article 8.

• In determining intent, regard may be had to practices which have developed between the parties in the course of lengthy business relations (a "course of dealing"). Of particular relevance here are framework contracts, which may supplement subsequent orders or communications that appear to be incomplete.
  • LG Wuppertal and OLG Düsseldorf in Weitnauer, IPRax 1985, 205, 206 [70 n.2c]

• In cases of doubt, a party who agrees to negotiate in a foreign language or accepts an offer made in such a language is obliged to clarify matters by raising an objection or query or by obtaining a specialist translation. Even though he is the recipient, he is under a duty to display the alertness and care normally displayed in business transactions.
  • LG Mannheim and Koln in Magnus, RabelsZ 1981, 153 [41 n.6b]

  • OLG Frankfurt in Reinhart, IPRax 1981, 226 [41 n.6b]

• It can be difficult to appraise a conflict between a party's declarations and his subsequent conduct. As a rule, preliminary negotiations and practices (i.e., a party's conduct) will point to an interpretation of his declarations which reflects that conduct. If there is nevertheless still a conflict, it is his actual conduct which determines the meaning of his declaration . . . That is in conformity with the principle of good faith, which is decisive even where interpretation is made subjectively by reference to a party's own intention, because that is the understanding which a reasonable recipient of the declaration would have. The legal basis for such a rule can be derived from [CISG] Article 7(1), which refers to the "observance of good faith in international trade" and therefore expresses a general principle of interpretation.
  • OLG Celle, IPRax 1987, 313 [71 n.8]

• If the parties' subjective intentions do not coincide, the objective meaning of their declarations must be determined by interpretation. In international trade it will hardly ever be the case that a declaration is incapable of interpretation.
  • BGHZ 20, 109 [71 n.8a]

• In the case of a continuous business relationship between the parties, the fact that replies are no longer sent to confirmations of order may implicitly indicate that the parties have concluded an agreement conferring jurisdiction.
  • OLG Celle, IPRax 1985, 284 [73 n.14b]

• There can be no recourse unilaterally to the domestic law of a silent party. The principle of interpretation according to the recipient's understanding requires at the very least that, where one party is faced with the silence of the other party, both parties should attribute the same legal significance to it.
  • OGH in Maxl, IPRax 1989 [73 n.14e]

  • BGH NJW 1972, 391 (legal background taken into account) [73 n.14e]

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