LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG article 9 with ULIS/ULF provisions
  
• Comments on the matchup
  
• Experience gained under ULIS/ULF rules on usages

     CISG Article 9               ULIS Article 9
  
1. The parties are bound      1. The parties shall be bound 
by any usage to which         by any usage which they 
they have agreed and          expressly or impliedly made 
by any practices which        applicable to their contract and 
they have established         by any practices which they have 
between themselves.           established between themselves. 
 
2. The parties are            2. They shall also be bound by 
considered, unless            usages which reasonable persons 
otherwise agreed, to have     in the same situation as the parties 
impliedly made applicable     usually consider to be applicable 
to their contract or its      to their contract.  In the event of 
formation a usage of which    of conflict with the present Law, 
the parties knew or ought     the usage shall prevail unless 
to have known and which       otherwise agreed by the parties. 
in international trade is  
widely known to, and          3. Where expressions, provisions 
regularly observed by,        or forms of contract commonly 
parties to contracts          used in commercial practices  
of the type involved          are employed, they shall be  
in the particular.            interpreted according to the 
 trade concerned               reasoning usually given to them 
                              in the trade concerned. 
 
SEE ALSO: 
 
ULF Article 13(1).  Usage means any practice or method of 
dealing which reasonable persons in the same situation as the 
parties usually consider to be applicable to the formation of 
their contract. 
 
ULF Article 13(2).  Where expressions, provisions or forms 
of contract commonly used in commercial practices are  
employed, they shall be interpreted according to the meaning 
usually given to them in the trade concerned. 

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 on usages

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 9.

• The fact that a usage is widespread and generally recognized is due principally to the fact that experienced businessmen in the sector concerned regard a particular type of conduct to be self-evident. Disputes before the courts concerning the technical aspects of usages are therefore rare. Disputes arise more frequently, however, in regard to the question whether, by virtue of a usage, silence in response to a commercial letter of confirmation can result in the conclusion of an agreement conferring jurisdiction or an arbitration agreement.
  • O EuGH RIW 1984, 58 [77 n.7a]

• Article 9(1) provides that the parties are bound, first of all, by practices which have become established between them. This is not a reference to usages of general application but to a particular custom which has been developed between the parties.
  • OLG Düsseldorf, IPRax 1984, 206 [78 n.8]

• Where parties intend a usage to apply to their contract the sole requirement is that the usage exists, even though it may be only a domestic usage. The borderline of such a general, agreed incorporation of a usage often merges with that of codified rules, such as Incoterms 1990, the ICC guidelines for documentary credits, or local usages such as the Hamburger Freundschaftliche Arbitrage.
  • RIW 1978, 37 (Hamburger Freundschaftliche Arbitrage recognized by an arbitration court as a usage) [78 n.l0]

• Silence in response to an offer or a commercial letter of confirmation may be significant in the context of localized, but nevertheless international, usages.
  • OLG Hamburg, RIW 1981, 263, but see 1982, 436 [79 n.13]

• How a usage is to be dealt with in legal proceedings depends upon the relevant domestic procedural law. As a rule, the existence of a usage is a question of fact and therefore needs to be proved.
  • BGHZ 40, 332, 333 [80 n.l6]

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