Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28
Peter Schlechtriem [*]
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The interpretation of the declarations of the parties should be governed by the subjective intention of the declaring party, but only insofar as this intention was recognizable to the other party, Art. 8(1). If it is not recognizable, statements are to be interpreted according to the understanding of a reasonable person similarly situated. This is in conformity with the rules of interpretation of party statements under German law and of many other jurisdictions. In the process of interpreting the intention of a party or the understanding of a reasonable person, consideration is to be given to all relevant circumstances including negotiations, practices between the parties, usages and subsequent conduct of the parties. Lacking provisions on the control on standard form contracts, I think the one tool that may come to grips with standard contracts is Art. 8(2). It enables the courts to ignore fine print which is contradictory, vague, or difficult to understand by using a "reasonable person similarly situated" standard. And it is also possible that fine print in a language which under normal circumstances could not be expected to be understood by the other party will not determine the content of the contract.
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* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.
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48. K. Zweigert/H. Kötz, An Introduction to Comparative Law, Vol. II: The Institutions of Private Law, Amsterdam 1977, at 171-181; A. von Mehren, Encyclopedia of Comparative Law, Tübingen, Den Haag (in preparation). Vol. VII Chap. 9. The Formation of Contracts, § 43 et seq.
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