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GUIDE TO CISG ARTICLE 7

Secretariat Commentary (closest counterpart to an Official Commentary)


Guide to the use of this commentary

The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 6 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 6 [draft counterpart of CISG article 7(1)].

To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a partial validation of citations to this Secretariat Commentary. This match-up indicates that CISG article 7(1) is substantially the same as article 6 of the 1978 Draft. However, the Secretariat Commentary on article 6 of the 1978 Draft has no application to CISG article 7(2) as there was no counterpart to CISG article 7(2) in the 1978 Draft.


Text of Secretariat Commentary on article 6 of the 1978 Draft
[draft counterpart of CISG article 7(1)]   [Interpretation of Convention]

PRIOR UNIFORM LAW

ULIS, article 17. Prescription Convention, article 7.

COMMENTARY

International character of Convention

1. National rules on the law of sales of goods are subject to sharp divergencies in approach and concept. Thus, it is especially important to avoid differing constructions of the provisions of this Convention by national courts, each dependent upon the concepts used in the legal system of the country of the forum. To this end, article 6 [draft counterpart of CISG article 7(1)] emphasizes the importance, in the interpretation and application of the provisions of the Convention, of having due regard for the international character of the Convention and for the need to promote uniformity.

Observance of good faith in international trade

2. Article 6 [draft counterpart of CISG article 7(1)] requires that the provisions of the Convention be interpreted and applied in such manner that the observance of good faith in international trade is promoted.

3. There are numerous applications of this principle in particular provisions of the Convention. Among the manifestations of the requirement of the observance of good faith are the rules contained in the following articles:

- article 14(2)(b) [draft counterpart of CISG article 16(2)(b)] on the non-revocability of an offer where it was reasonable for the offeree to rely upon the offer being held open and the offeree acted in reliance on the offer;

- article 19(2) [draft counterpart of CISG article 21(2)] on the status of a late acceptance which was sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time;

- article 27(2) [draft counterpart of CISG 29(2)] in relation to the preclusion of a party from relying on a provision in a contract that modification or abrogation [termination] of the contract must be in writing;

- articles 35 and 44 [draft counterpart of CISG articles 37 and 38] on the rights of a seller to remedy non-conformities in the goods;

- article 38 [draft counterpart of CISG article 40] which precludes the seller from relying on the fact that notice of non-conformity has not been given by the buyer in accordance with articles 36 and 37 [draft counterpart of CISG articles 38 and 39] if the lack of conformity relates to facts of which the seller knew or could not have been unaware and which he did not disclose to the buyer;

- articles 45(2), 60(2) and 67 [draft counterpart of CISG articles 49(2), 64(2) and 82] on the loss of the right to declare the contract avoided;

- articles 74 and 77 [draft counterpart of CISG articles 85 to 88] which impose on the parties obligations to take steps to preserve the goods.

4. The principal of good faith is, however, broader than these examples and applies to all aspects of the interpretation and application of the provisions of this Convention (OFFICIAL RECORDS, pp. 17-18).


Pace Law School Institute of International Commercial Law - Last updated August 29, 2006
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