ferrari interpretation of statements and conduct

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Citation: 2003 Int'l Bus. L.J. 96 2003

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FOR THE INTERNATIONAL SALE OF GOODS CISG) IN THE LIGHT OF CASE LAW

In this respect, it must above all be pointed outthat these rules merely apply to statements andconduct (which includes omissions10) of a partythat relates to a matter governed by theConvention 1 , as pointed out not only by legalscholars12 but also by the Austrian SupremeCourt 13. In the relevant case 14, the AustrianSupreme Court had to investigate whether aCourt of Appeal correctly applied Article 8 CISGin interpreting a party's conduct. The AustrianSupreme Court stated that Article 8 was notapplicable at all on the grounds that [...]ur-suant to Article 4 CISG, the Convention exclusi-vely [governs] the formation of sales contractsand the rights and obligations of the seller andthe buyer deriving from the contract and thatArticle 8 [...] [relates only to] the interpretationof declarations and conduct as governed by theConvention , which is why that provision couldnot be applied in relation to an assumption ofdebts, the assumption of debts being excludedfrom the CISG's sphere of application.It s further important to note that Article 8 is oneof the CISG's provisions contained in Chapter IIofPart I, i.e. the chapter of the CISG that is dedica-ted to the General Provisions 15; consequently,Article 8 applies whenever a statement or conductof a party (relating to a matter governed by theConvention) is to be interpreted in view of deter-mining its contents (or whenever it is to be deci-ded whether that statement or conduct constituteat all a declaration that has legal effects for thepurposes of the Convention 16), independently ofwhether the statement or conduct relates to Part II(on Formation ) or Part IIIon Rights and Obli-gations of the Parties )17. This can be evincednot only from the legislative history18 but alsofrom case law. Courts have indeed resorted tothe interpretive criteria set forth in Article 8 tointerpret both statements and conduct concerningthe process of formation of contracts governed bythe CISG19, as well as statements and conductconcerning the performance of the contract 20and its avoidance2It should also be noted that although Article 8CISG appears to be applicable merely to the

interpretation of unilateral acts of any party to acontract governed by the CISG, according to theConvention's legislative history 22, legal writing 23as well as case law 24 it is equally applicable tothe interpretation of the contract 25.

III SUBJECTIVE INTENT OF THE PARTYARTICLE 8 1))

Article 8, which does not have an antecedent inthe 1964 Hague Uniform Laws26, but is modelledafter the UNIDROIT Draft Law for the Unificationof Certain Rules Relating to the Validity ofContracts for the International Sale of Goods27,lists two different interpretive rules, namely theones provided for in Articles 8(1) and 8(2). Ascan easily be derived from the wording of thoseparagraphs, when listing the two interpretive rulesthe drafters intended to lay down the order inwhich those rules have to be resorted to: 8 accor-dingly, one has to first interpret any statement orconduct on the basis of Article 8(1) subjecti-vely 29, i.e. one has to first resort to the realsubjective intention of the declaring party30 amere hypothetical intention is not relevant 31 .One court paraphrased the rule contained inArticle 8(1) as follows: Article 8(1) requires aboveall a substantial inquiry into the parties subjec-tive intent, even if the parties did not engage inany objectively ascertainable means of registe-ring this intent. Article 8(1) instructs courts tointerpret the statements and other conduct ofa party according to his intent as long as theother party knew or could not have beenunaware of that intent. The plain language of theConvention, therefore, requires an inquiry into aparty's subjective intent as long as the otherparty to the contract was aware of that intent 32or could not have been unaware of it33. Thismeans, as pointed out in legal writing 34, thatwhere the addressee of a statement does notrecognize the intent of the party making the sta-tement although it is easily recognizable, thataddressee will be bound by the declaring party'ssubjective intention. On the other hand, where


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INTERPRETATION OF STATEMENTS AND CONDUCT UNDER THE CONVENTION

the addressee understands the declaring party'sreal subjective intention, despite that party'sunclear or incorrect language, that party's realsubjective intention will be relevant 35 regardlessof what a reasonable person may have unders-tood36; the principle falsa demonstratio nonnocet applies 37.Of course, for the subjective intent of a party tobe relevant at all, it must somehow have beenmanifested38; this view was also held in caselaw; in this respect it suffices to mention that aGerman court held that the intent that one partysecretly had, is irrelevant 39.That court also stated that the party that assertsthat the other party did know or could not havebeen unaware of the former party's intent has toprove that assertion 40 a view also held in legalwriting 41

IV OBJECTIVE INTERPRETATION:GENERAL ISSUES

Although courts have to first try to establish themeaning of a statement of other conduct by loo-king into the intent of the party making that state-ment or holding that conduct 42 most cases willnot present a situation in which both parties tothe contr ct acknowledge a subjective intent [...].In most cases therefore, Article 8(2) of the[Convention] will apply, and objective evidencewill provide the basis for the court's decision 43.The fact that in most cases Article 8(1) will beinapplicable is, according to one arbitral tribunal,due to the fact that the application of Article 8(1)requires either that the parties have establishedpractices between themselves and know eachother well or that the statements are very clear 44.Thus, where in the interpretation of a statementor conduct (or omission) 45 of a party it is not pos-sible to rely on Article 8(1), and, ultimately, on thatparty's intention, one has to resort to a moreobjective analysis 46 provided for in Article8(2)47. According to this provision, the state-ments and conduct of a party are to be interpre-

ted according to the understanding that a reaso-nable person of the same kind as the other partywould have had in the same circumstances 48which, according to one court, means nothing butto reasonably interpret the parties' state-ments 4 9. This means, however, that the unders-tanding of the actual addressee of the statementto be interpreted is irrelevant, as can also beevinced from case lawSO; rather, one has toresort to the understanding of a normally diligentbusinessman 51 that has the same knowledge asthe actual addressee of how business is conduc-ted in the trade concerned 52 of the technical lan-guage 53 and of the technical implementation ofthe transaction 54. According to one author, thismeans that the addressee's understanding the-refore applies in this case too, but in a generali-zed form 55; in the words of yet another author,the reasonable person referred to in Article 8(2)is not a reasonable person in the abstract 56.What happens, however, where according to theobjective interpretation a meaning is attributedto a statement that differs from that which thedeclaring party wanted to attribute to it? Sincethis issue is to be qualified as one of validity ofthe contract5 7 which pursuant to Article 4(a) fallsoutside the CISG's scope of application 58 theissue of whether the contract can be rescindedon the grounds of mistake will depend on theapplicable domestic law, as pointed out not onlyby commentators 59 but also by one court 6O.

V OBJECTIVE INTERPRETATION:CASE LA W

In view of the statement referred to earlier, accor-ding to which in most cases, [ ] Article 8(2) ofthe [Convention] will apply, and objective evi-dence will provide the basis for the court's deci-sion 61 rather than Article 8(1) and itssubjective interpretation , it cannot surprise thatcourts have relied upon Article 8(2) to solvevarious interpretive problems.In one case, a court inferred the buyer's intentionto be bound by its declaration and the possibility


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FOR THE INTERN TION L S LE OF GOODS CISG) IN THE U HT OF CASE W

of determining the quantity of the goods by inter-preting its st tements and conduct according ofthe understanding of a reasonable person of thesame kind as the other party in the same circum-stances. The court held that, absent any relevantcircumstance or practice between the parties atthe time the contract was concluded, which havealways to be taken into account the buyer'sintention to be bound could be evinced from thebuyer's request to the seller to issue the invoiceof the delivered textiles 62.After holding that according to Article 14(1) of theConvention a declaration must be sufficientlydefinite in order to constitute a proposal and thatit is sufficiently definite where it indicates thegoods and expressly or implicitly fixes or makesprovision for determining the quantity and theprice, one court stated that for the offer to be ableto be accepted, it suffices that the required mini-mum content can be understood as being suffi-ciently definite by a reasonable person of thesame kind as the other party (offeree) wouldhave in the same circumstances 63.In another case, when having to determine whatqualities of the goods were agreed upon, oneSupreme Court held, given that the parties had adifferent understanding of the meaning of thecontract, that the language of the contract had tobe interpreted according to Article 8(2), iaccording to the understanding that a reasonable

person of the same kind as the other party wouldhave had in the same circumstances . Conse-quently, since the buyer was an expert and knewthat it was not offered a new machine, but onewhich was built fourteen years prior to theconclusion of the contract and consequently didnot conform to the latest technical expectations, itwas without doubt compatible with Article 8(2) ifthe Court of First Instance had found that the sel-ler was entitled to expect that the buyer conclu-ded the contract in full knowledge of the technicallimitations of the machinery and its equipment.For these reasons, the Supreme Court concurredwith the Court of First Instance that the soldmachine was offered to the buyer in conformitywith the specific tions of the contract 64.

In yet another case65, one court stated thatArticle 8(2) of the Convention is the primarysource of interpretation and, in respect of thecase to be decided by the court, showed that theclaim for the purchase price was due at the endof the agreed period for payment. Only within thisperiod was the buyer allowed to propose a com-pensation transaction as provided in the contract.The offer would have given the [buyer] a respitein payment while the performance of the com-pensation transaction would have fulfilled the[buyer's] obligation to pay the purchase price.The parties' interests also point in favor of suchan understanding of their agreement. While the[buyer] would have benefited from reciprocalshipments which allowed it to set-off its paymentobligation against the [seller's], it was evidentlyimportant for the [seller] to receive a [monetary]equivalent for its goods no later than at the expi-ration of the payment period. In particular, the[buyer] could not have been unaware that itwould have been commercially unreasonable forthe [seller] to grant a respite in payment beyondthe agreed period only upon the [buyer s]announcement of a compensation transaction.Article 8(2) was also used in a dispute relating tothe non-conformity of goods in order to deter-mine whether the seller had implicitly waived,through its behavior, its right to set up thedefense that the notice of non-conformity was nottimely 66. More specifically, the court stated thatthe fact that a seller enters into negotiations overthe lack of conformity of the goods need notnecessarily be regarded as a waiver, but shouldbe considered in conjunction with the circum-stances of each case. Since in the case at hand,after its own inspection of the claimed defect, theseller negotiated over the amount and mannerof a settlement of damages for practically 15months - [ ]ithout expressly or at least discer-nibly reserving the objection to the delay andeven offered through legal counsel to pay com-pensatory damages that amount to practicallyseven times the value of the goods 67, Article8(2) and 8(3) led the court to state that the[buyer] could only reasonably understand that the


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[seller] was seeking a settlement of the affair andwould not later refer to the allegedly passeddeadline as a defense to the [buyer s] reimburse-ment claim , i.e. that the seller had waived itsright to rely on the untimeliness of the notice. Theissue of whether the seller had waived its right toraise the untimeliness of the buyer s no tice ofnon-conformity was dealt with by another courtas well68. According to that court, such a waivercannot be assumed from the mere readiness ofthe seller to discuss the issue with the buyer.This results both from the need of certainty incommercial transactions, and from the principleof good faith, which is applicable also in the inter-pretation of the parties statements or otherconduct.One court resorted to Article 8(2) to interpret themeaning of the clause franco domicile contai-ned in a contract. The court found that this clausedid not merely deal with the cost of the transportbut also with the passing of the risk. In reachingthis conclusion, the court interpreted the term franco domicile according to the understandingthat a reasonable person would have had in thesame circumstances (Article 8(2) CISG). In thecourt s opinion, a buyer entitled to the delivery ofgoods franco domicile would not worry abouttransportation and insurance of the goods; fur-thermore, the court held that the fact that the sel-ler concluded a transport insurance meant that itwas prepared to take the risk of the transporta-tion of the goods. This clearly indicated the par-ties intention to accept the passing of the risk atthe buyer s place of business, and accordingly todeviate from Article 3 (a) CISG.In a different case 69, Article 8(2) was resorted toin order to determine whether the conduct of oneparty allowed the court to decide whether anagreement as to the purchase price had beenreached by the parties. In the case at hand, sincethe buyer had taken delivery of the goods withoutcontesting the price indicated by the seller andsince such conduct was to be interpreted asacceptance of the price, according to Article 8(2),the court ordered the buyer to pay the price

requested by the seller, as it considered thatan agreement on the purchase price had beenre ched

Article 8(2) and the interpretive standards itrefers to was also invoked in order to determinewhether a loss occurred was to be consideredforeseeable under Article 74 CISG 70.V1 ELEMENTS TO BE TAKEN

INTO ACCOUNT IN INTERPRETINGSTATEMENTS: NEGOTIATIONSAND PAROL EVIDENCE RULE

According to Article 8 3), in determining theintent of a party or the understanding a reaso-nable person would have had, due considerationis to be given to 7 relevant circumstances ofthe case, including the negotiations, any prac-tices which the parties have established betweenthemselves, usages and any subsequent conductof the parties7 2. According to bothcommentators 73 and urts 74 , these criteriahave to be taken into account whenever a state-ment or conduct has to be interpreted, i.e. inde-pendently of whether the interpretation as tooccur in the light of 8(1)75 or Article 8(2)76. As,however, the list is non-exhaustive 77, other ele-ments may become relevant; one court for ins-tance stated that in the interpretation ofstatements or conducts the good faith principlereferred to in Article 7(1), in respect of the inter-pretation of the Convention, must also be takeninto account 78. Taking into account all these ele-ments may, as pointed out both in legal writing79and case law8 O o silence amounting to accep-tance.In respect the expressly listed circumstances itwas suggested that the order in which the cir-cumstances are listed in Article 8(3) appears toindicate a specific order to be followed inemploying them 8 ; pursuant to that view, preva-lence is to be given to the negotiations, a viewjustified on the basis that the contents of acontract can - more often than not - be deducedmainly from the negotiations 82. Despite this view,which has to be shared83, one court applied the


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so-called parol evidence rule to a contractgoverned by the Convention 84. This rule, whichnotwithstanding its name applies indiscriminatelyto both parol and written evidence 85, seeks togive legal effect to the contracting parties' final,and in certain instances, complete expressions oftheir agreement which they have reduced towriting. Consequently, where the agreement issupposed to be a complete integration, the parolevidence rule prohibits a party from introducingevidence of prior agreements or negotiations thatare contradictory as well as consistent with thewriting. This means, however, that the parolevidence rule contrasts with Article 8(3), by vir-tue of which the negotiations have to be takeninto account in the interpretation, which is whythe majority of commentators hold that the parolevidence rule does not apply to contracts gover-ned by the CLSG86 Moreover, this decisions is incontrast with that of several other US courts87.One court88 expressly stated that the parolevidence rule is not viable in [Convention] casesin light of Article 8 of the Convention 89 sinceArticle 8(3) expressly directs courts to give 'dueconsideration [ ]o all relevant circumstances ofthe case including the negotations' to determinethe intent of the parties. Given Article 8(1)'s direc-tive to use the intent of the parties to interprettheir statements and conduct, Article 8(3) is aclear instruction to admit and consider parol evi-dence regarding the negotiations to the extentthey reveal the parties intent . According toanother court, Article 8(3) essentially rejects [ ]the parol evidence rule 90 . Yet another court sta-ted that contracts governed by the [Convention]are freed from the limits of the parol evidencerule and there is a wider spectrum of admissibleevidence to consider in construing the terms ofthe parties' agreement 91.

One court, after pointing out the problems thatmay arise under the Convention in respect ofparol evidence, stated that to the extent partieswish to avoid parol evidence problems they cando so by including a merger clause in their agree-ment that extinguishes any and all prior agree-

ments and understandings not expressed in thewriting92.

VII. ELEMENTS TO BE TAKEN INTOACCOUNT IN INTERPRETINGSTATEMENTS: SUBSEQUENTCONDUCT

Pursuant to Article 8 3) CISG, another element tobe taken into account in the interpretation of sta-tements is the subsequent conduct of the parties.According to one author, the reference to thesubsequent conduct is somehow surprising,since the meaning of a statement is supposed tobe determined at the time of its effectiveness 93.This is why various authors stated that the sub-sequent conduct merely serves to show whatintention existed at the time the statement wasmade9 4, a view held also by various courts 95. Inone case 96, the court inferred the buyer's inten-tion to be bound and the possibility of determi-ning the quantity of the goods by interpreting thebuyer's statements and conduct according to theunderstanding of a reasonable person of thesame kind as the other party in the same circum-stances. It held that, absent any relevant circum-stance or practice between the parties, theintention to be bound had to be interpretedaccording to the subsequent conduct after theconclusion of the contract of the party that hadmade the statement. In particular, it held that thebuyer's request to the seller to issue the invoiceof the delivered textiles to the embroiderer wassufficient evidence of the buyer's intention to bebound at the time it made its proposal.Furthermore, the fact that the buyer complainedabout the quantity only two months after deliveryto the embroiderer gave the court good reason tobelieve that a valid contract had been concludedfor the sale of the quantity of textiles actually deli-vered to the embroiderer.In respect of subsequent conduct, it was alsostated that waiver clauses do not prevent sub-sequent conduct from being relevant, as the pur-pose of waiver clauses is to bar modification of


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INTERPRET TION OF ST TEMENTS ND CONDUCT UNDER THE CONVENTION

the contract through conduct; waiver clausesdo not prevent subsequent conduct from beingrelevant for determining the meaning of acontract already concluded 97.Where 'subsequent conduct' of one partycontrasts with a statement that party made, theformer must prevail 98 on the basis of the prin-ciple protest tio facto contr ri non v let 99Where, however, there is a contrast between thecommon intention of the parties and their sub-sequent conduct, this may be seen as a modi-fication of the contract pursuant to Article 29CISG 1

VIII ST ND RD CONTR CT TERMS NDL NGU GE OF THE ST TEMENTS

Finally it should be mentioned that Article 8 wasalso invoked not only in legal writing, but also incase law, to solve the problem of whether andunder what conditions standard contract termsproposed by one party become part of thecontract' 01.This part of the paper will refer to thecase law on this issue. In one case102 theGerman Supreme Court held that the issue ofthe inclusion of such terms is to be solved on thebasis of the Convention's rules on interpretationrather than of those of the applicable domesticlaw. On the grounds of the applicability of theinterpretive criteria set forth in Article 8, theGerman Supreme Court stated that whether thestandard contract terms are part of the proposalmust be analyzed on the basis of how a reaso-nable person of the same kind as the otherparty would have understood the offer and thatthat means that it is required that the recipient ofa contract offer that is supposed to be based ongeneral terms and conditions has the possibilityto become aware of them in a reasonablemanner and that an effective inclusion of gene-ral terms and conditions above all requires thatthe intention of the offeror that it wants to includeits terms and conditions into the contract beapparent to the recipient of the offer .Furthermore, according to the court, [...],he

Convention requires the user of general termsand conditions to transmit the text or make itavailable to the other party 103.In a different case, another urt 14 reachedbasically the same conclusions, but in doing so, italso dealt with the issue of the language in whichthe statements had to be made to be effective.According to that court, in the absence of anexpress provision in the Convention the inclusionof standard contract terms has to be decided onthe basis of an interpretation of the contract inlight of Article 8. A reference by one party to itsstandard terms must be such as to put a reaso-nable person of the same kind as the other partyin a position to understand it and to gain know-ledge of the standard terms. According to thecourt, one of the circumstances to be taken intoaccount is the language in which the standardterms are written. In the case at hand the seller'sstandard contract terms were not in the languageof the contract; the seller should have sent antranslation or at least a text both in the languageof the contract and in the other language. Since,however, the seller had not done this, the stan-dard contract terms had not become part of thecontract. A similar solution was also adopted in acourt of another country, which stated that thestandard contract terms written in a language dif-ferent from that of the contract cannot bind theother party 1 5The language issue was dealt with in anotherdecision as well 106 On that occasion, the courtheld that whether a notice written in a languageother than the language in which the contractwas made or than the language of the addresseewas effective was to be decided on a case-by-case basis and taking into account the unders-tanding of a reasonable person, giving dueconsideration to usages and practices observedin international trade, according to Article 8(2)and 8(3). The mere fact that a notice was givenin a language which was not that of the contractor that of the addressee was not an obstacle forthe notice to be effective. The foreign languagecould be the language normally used in the res-pective trade sector, to which the parties may be


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FOR THE INTERNATIONAL SALE OF GOODS CISG) INTHE LIGHT OF CASE LAW

considered to have agreed upon; and evenwhere this was not the case, the notice would beeffective if the debtor, as it was true in the casebefore the court, could have reasonably beenexpected to request from the sender of the noticeexplanations or a translation.In yet another decision107, a court held that theparty that accepts statements relating to thecontract in a language different from the oneused for the contract is bound by the contents ofsuch statements, since it is up to that party to getacquainted with the contents of that statement.IX CONCLUSION

The purpose of this paper was to examine theCISG s rules on interpretation of statements andconduct of the parties to an international salescontract and to emphasize their importance inpractice, by referring to the existing and evergrowing 108- case law on this issue. Despite thispurpose and although this paper is included inthis law journal s section dedicated to the over-views on CISG case law, in dealing with thisissue it was not possible to merely give anaccount of the existing case law, above allbecause there still are issue that have not yetbeen dealt with in case law. This goes to showthat case law overviews are useful but should be

Endnotes1. For a paper discussing the reasons for the various abbreviations to be found in scholarly writing, see A. Flessner, Th. Kadner, CISG?Zur Suche nach einer AbkOrzung fOr das Wiener Ubereinkommen Ober Vertrtge Ober den internationalen Warenkauf Zeitschrift fureuropaisches Privatrecht, 1995, 347 ft.2. See Article 7 CISG: (1) in the interpretation of this Convention, regard is to be had to its international character and to the need topromote uniformity in its application and the observance of good faith in international trade.Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with thegeneral principles on which it is based or in the absence of such principles, in conformity with the law applicable by virtue of the rules t pri

vate international law .3. For papers dealing with the interpretation and the gap-filing of the CISG, see M.J. Bonell, L interpretazione del diritto uniforme allaluce dell art. 7 della Convenzione di Vienna sulla vendita internazionale Rivista di diritto civile 1986, II 221 ff,; V.S.Cook, The Need forUniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods, University of Pittsburgh LawReview, 1988, 197 if ; F. Diedrich, Autonome Auslegung von Internationalem Einheitsrecht. Computersoftware im Wiener Kaufrecht, Baden-Baden; 1994; F. Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, Georgia Journal of International and Comparative Law, 1994,183 ft.; F. Ferrari, CISG Case Law: A New Challenge for Interpreters?, Journal of Law and Commerce, 1998, 245 ft.; F. Ferrari, Interpretationunitorme de la Convention de Vienne de 1980 sur la vente internationale, Revue internationale de droit compare, 1996, 813 ft.; F. Ferrari, Breviconsiderazioni critiche in maleria di interpretazione autonoma ed applicazione uniforme della convenzione di Vienna, Rivista di diritto civile1998 II 81 ff.; R. Happ, Anwendbarkeit vblkerrechtlicher Auslegungsmethoden auf das UN-Kaufrecht, Recht der internationalen Wirtschatt,1997, 376 f., R. Happ, Interpretation of Uniform Law Instruments According to Principles of International Law, Uniform Law Review, 1997, 702ff.; E.A. Kramer, Uniforme Interpretation von Einheitsprivatrecht - mit besonderer Bercksichtigung von Art. 7 UNKR, 6sterreichischeJuristische Bl5tter, 1996, 137 ft.; P. Koneru, The International Interpretation of the UN Convention on Contracts for the International Sale ofGoods: An Approach Based on General Principles Minnesota Journal of Global Trade, 1997, 105 ff. U. Magnus, Wahrungsfragen imEinheitlichen Kaufrecht. Zugleich ein Beitrag zu seiner LOckenfillung und Auslegung, Rabels Zeitschrfit for auslandisches und internationalesPrivatrecht, 1989, 116 ft.; D. Maskow, Zur Auslegung des Einheitskaufrechts der UNO-Kaufrechtskonvention von 1980, in Nationales Komiteefur Rechtswissenschaft der DDR (ed.), Nationalberichte zum XII Internationalen KongrelB fOr Rechtsvergleichung (Sydney/Melbourne, 18.-26.8.1986), Potsdam -Babelsberg, 1986, p. 5 ff ; A. Rizzi, Interpretazione e integrazione della legge uniforme sulla vendita internazionale dicose mobili, Rivista di diritto privato, 1997, 237 ft.; M.P. van Alstine, Dynamic Treaty interpretation, University of Pennsylvania Law Review,1998, 687 ft., T. Vazquez-Lepinette, The Interpretation of the 1980 Vienna Convention on International Sales, Diritto del commercio intemazio-nale, 1995, 377 ft.4. The dispositive nature of the CISG s rules on interpretation of the statements by the parties has been pointed out for instance byJunge, Art. 8, in Schlechtriem (ed.), Kommentar zum Einheitlichen UN-Kaufrecht - CISG, Munich, 3rd ed., 2000, p. 141; W. Witz H.-C. Salger,

M Lorenz, International Einheitliches Kaufrecht, Heidelberg, 200, p. 96.5. For this affirmation, see also F. Ferrari, Art. 7, in Schlechtriem ed.), Kommentar zum einheitlichen UN-Kaufrecht, Munich, 3rd ed.,

2000 . 124.


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6. For a reference to the dangers for the uniformity raised by an interpretation based upon domestic interpretive criteria rather than uniform one, see, among others, by M. Sturley, International Uniform Law in National Courts: The Influence of Domestic Law in Conflicts ofInterpretation, Virginia ournal of International Law, 1986, 7337. See F. Diedrich Autonome Auslegung von Internationalem Einheitsrecht Baden-Baden 1994, p. 59 ff.; H. Kotz RabelsRechtsvergleichung Nutzen, Kosten, Methoden, Zielen, Zeitschrift ir auslandisches und internationales Privatrecht 1986, p. 33; Magnus,supra note 3, at 122.8. See LG Hamburg, September 26, 1990, Recht der internationalen Wirtschaft 1990, 10159. ICC Court of Arbitration, award No. 7331/1994, ICC International Court of Arbitration Bulletin, Nov. 1995, 73 ft., stating that theVienna Convention reflects [...] general international commercial principles and sets forth in Article 8 general rules with respect to interpretingstatements of parties and provisions of contract .

10. Melis, Art. 8, in H.Honsell (ed.), Kommentar zum UN-Kaufrecht, Berlin, 1997, p. 95.11. The legislative history also points to this; see United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings ofthe Main Committee, 1981, 18, stating that Article 8 on interpretation furnishes the rules to e followed in interpreting the meaning of any sta-tement or other conduct of a party which falls within the scope of application of this Convention (emphasis added by the author).12. Witz, Salger, Lorenz, supra note 4, at 97.13. See Oberster Gerichtshof, April 24, 1997, published on the Internet at .14. For a comment on this decision, see F. Ferrari, Assumption of Debts as a Subject Matter Excluded from the UN Sales Convention(Commentary on OGH, April 24, 1997), International Legal Forum, 1997, 90 t15. Melis, supra note 10, at 94.16. For a distinction between the two issues mentioned in the text, see F. Ferrari, Vendita internazinoale di beni mobili. Art. 1-13. Ambitodi applicazione. Disposizioni generali, Bologna, 1994, 172 f.; Fioravanti, Commento all'art. 8 della Convenzione di Vienna, Nuove leggi civilicommentate, 1989, 33; M. Karollus, UN-Kaufrecht, Vienna, 1991, p. 46; A. Kaczorowska, Regles uniformes d'interpr~tation d'un contrat inter-national, Revue de droit international et de droit compare, 1991 297.17. This also means that Article 8 also applies in those countries that have declared a reservation according to Article 92 - as have theScandinavian countries.18. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records,

Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 18.19. For cases in which Article 8 CISG was used to interpret statements relating to the formation process, see Oberlandesgericht Frankfurt,August 30, 2000, published on the Internet at ; Oberster Gerichtshof, March 9,2000, published on the Internet at ; Landgericht Zwickau, March 19, 1999, published on the Internet at; Oberster Gerichtshot, March 20, 1997, Zeitschrift lr Rechtsvergleichung, 1997,204 ft.; Oberster Gerichtshof, February 6, 1996, Zeitschrift fOr Rechtsvergleichung, 1996, 248 ff ; OG Kanton Thurgau, December 19, 1995,Schweizerische Zeitschrift fOr europaisches und internationales Recht, 2000, 118 ff.; KG Kanton St. Gallen, Internationales Handelsrecht,2001, 44; Oberster Gerichtshof, November 10, 1994, Praxis des internationalen Privat- und Verfahrensrechts, 1996, 137 ff.20. See, e.g., Bundesgerichtshof, November 25, 1998, Neue Judstische Wochenschrift, 1999, 1259 ff. (dealing with the issue of whetherthe offer to pay damages on the seller's part constitutes a waiver of the seller's right to rely on Articles 38 and 39).21. See OLG Koblenz, January 31, 1997, OLG-Reporl Koblenz, 1997, 37 ff. (dealing with the issue of whether a certain conduct amountedto avoidance of the contract).22 United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - April 1980, Official Records,Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 18, restric-ting however, the applicability to the interpretation of a contract when the document is embodied in a single document .23 See W.-A.Achilles, Kommentar zum UN-Kaufrechtsobereinkommen (CISG), Neuwied, 2000, p- 32; F. Bydlinski, Das allgemeineVertragsrecht, in H,Doratt (ed.), Das UNCITRAL-Kaufrecht im Vergleich zum bsterreichischen Recht, Vienna, 1985, p. 74; F. Enderlein,

D. Maskow, H. Strohbach, Internationales Kaufrect. Kommentar, Berlin, 1991, p. 67; A.E. Farnsworth, Art. 8, in C.M. Bianca, M.J. Bonell ed.),Commentary on the International Sales Law. The 1980 Vienna Sales Convention, Milan, 1987, p. 101, Lopez Lopez, Art. 8, in L. Diez-Picazo(ed.), La compraventa internacional de mercaderias. Comentario de la Convencion de Viena, Madrid, 1998, p. 115, contra V. Heuz6, La venteinternationale de marchandises, Paris, 2nd ed., 1999, n 235.24. ICC Court of Arbitration, award 7331, Journal du droit international, 1995, 1001.25 See B undesgericht, Switzerland, 22 December 2000, published on the Internet at .26. For this statement, see, e.g., Ferrari, supra note 16, at 172; U. Huber, Der UNCITRAL - Entwurf eines Ubereinkommens Ober interna-

tionale Warenkaufvertrdge, Rabels Zeitschrift fur auslindisches und internationales Privatrecht, 1979, 429; U. Magnus, Wiener UN-Kaufrecht(CISG), Berlin, 1999, p. 164.27. See Farnsworth, supra note 23, at 95; Lopez Lopez, supra note 23, at 113 f.28 For a similar statement, see Ferrari, supra note 16, at 174; W. Junge, Art. 8, in Schlechtriem (ed.), Commentary on the UN Conventionon Contracts for the International Sale of Goods (CISG), Munich, 1998, p 70; B. Rudolph, Kaufrecht der Export im ImportvertrAgeFreiburg/Berlin, 1996, p. 140.29 Legal writers have often pointed out the order referred to in the text, i.e. the prevalence of the criterion referred to in Article 8(1) overthat contained in Article 8 2); see, e,g., Ferrari supra note 16, at 174, Fioravanti supra note 16, at 34; R. Herber B. CzerwenkaInternationales Kaufrecht, Munich, 1992, p. 52; K. Neumayer, C. Ming, Convention de Vienne sur les contrats de vente internationale de mar-chandises. Commentaire, Lausanne, 1993, p. 111; M. van Alstine, Virginia Journal of International Law, 1996, 58.


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30 For an express reference to the subjective interpretation, see Oberlandesgericht Frankfurt, Germany, 30 August 2000, published onthe Internet at .31. Junge, supra note 28, at 70.32. MCC-Marble Ceramic Center, Inc v. Ceramica Nuova D Agostino S.p.A, June 29, 1998, 1998 WL 343335 (11 h Cir. (Fla.)), for othercases in which the part of Article 8(1) referred to in the text was recalled, see Cour d'appel de Grenoble, October 21, 1999, D.2000. Somm.

441-442; Bundesgerichtshof, December 11, 1996, Neue Juristische Wochenschrift, 1997, 873 ft.33 For references to this part of the article 8(1), see, e.g., BG St. Gallen, July 3, 1997, Schweizerische Zeitschrift ir europ.isches undinternationales Privatrecht, 1998, 84

34 Magnus, supra note, at 166.35 B. Piltz, Internationales Kaufrecht, Munich, 1993, p. 67.36. Farnsworth, supra note 23, at 98.37. For this statement, see also Achilles, supra note 23, at 32, Jametti Greiner, Der Vertragsabschluss, in H. Hoyer, W. Posch (ed.), DasEinheitliche Wiener Kaufrecht, Vienna, 1992, p. 5 ; Magnus, supra note 26, at 66.38 See Lopez Lopez, supra note 23, at 20; Witz, Salger, Lorenz, supra note 4, at 98.39. LG Hamburg, September 26 1990, Praxis des internationalen Privat- und Verfahrensrechts, 1991, 40040. d41. See Lopez Lopez, supra note 23, at 2042. ICC Court of Arbitration, award No. 8324, published on the Internet at .43. MCC-Marble Ceramic Center, Inc v. Ceramica Nuova DAgostino S.p.A, June 29, 1998, 1998 WL 343335 (11th Cir. (Fla.)); for similarstatements in legal writing, see, e.g., J. Murray, Essay on the Formation of Contracts and Related Matters Under the United NationsConvention on Contracts for the International Sale of Goods, Journal of Law and Commerce, 1988, 48; Witz, Salger, Lorenz, supra note 4, at 98 .44. ICC Court of Arbitration, award No. 8324, published on the Internet at .45. See, apart from the author quoted in note 11 Junge, supra note 4, at 42.46. ICC Court of Arbitration, award No. 8324, published on the Internet at ; for other cases expressly referring to the need, absent the possibility of a subjective interpretation, to interpretthe statements or conduct of the parties on a more objective basis, see Oberlandesgericht Kbln, 16 July 2001, published on the Internet at; Bundesgericht, Germany, 22 December 2000, published on the Internet at; Oberlandesgericht Frankfurt, Germany, 30 August 2000, published on theInternet at ; MCC-Marble Ceramic Center, Inc v Ceramica Nuova D Agostino

S.p.A June 29, 1998, 1998 WL 343335 (11th Cir. (Fla.)); Hoge Raad Netherlands, 7 November 1997, published on the Internet at; LG Kassel, Germany, 15 February 1996, published on the Internetat .47. For a reference in legal writing to the fact that Article 8(2) can only be resorted to where Article 8(1) is not applicable, see Bydlinksi,supra note 23, at 74; Calleo, Hofstra Law Review, 2000, 819; Ferrari, supra note 16, at 176; Fioravanti, supra note 16, at 4; Kaczorowska,supra note 16, at 297; Murray, supra note 43, at 6; van Alstine, supra note 29, at 58.48. For cases referring to this LG Zwickau, Germany, 19 March 1999, published on the Internet at ; Oberster Gerichtshof, March 20, 1997, Zeitschrift f r echtsvergleichung, 1997, 204 ft.; Hoge Raad, Netherlands, 7November 1997, published on the Internet at ; BG St. Gallen, July 3,1997, Schweizerische Zeitschrift fuir europisches und internationales Privatrecht, 1998, 84 f.; Schiedsgericht der Handelskammer Hamburg,March 21, 1996, Recht der internationalen Wirtschaft, 1996, 766 ft.; Arbitration Court of the Chamber of Commerce and Industry of Budapest,Arbitration, award No. Vb 94124, published on the Internet at ;Roder Zelt und Hallenkonstruktionen v. Rosedown Park Ply Ltd and Reginald R Eustace, April 28, 1995, published on the Internet at; Oberster Gerichtsho, November 10, 1994, Zeitschrift fIr Rechtsvergleichung,1995, 7949. OL MOnchen July 9, 1997, published on the Internet at .50 In this respect see, e.g., Bundesgerichtshof, November 25, 1998, Transportrecht-lnlernationales Handelsrecht, 1999, 18 ft.51. For this, see Herber, Czerwenka, supra note 29, at 53; Kaczorowska, supra note 16, at 304.52 Witz, Salger, Lorenz, supra note 4, at 99.53 Lopez Lopez, supra note 23, at 25.54 See also Achilles, supra note 23, at 32; for a discussion, on the occasion of the Vienna Diplomatic Conference, of the concept of thereasonable person to be taken into account, see United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March

11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of theMain Committee, 1981, 260-261.55 Junge, supra note 28, at 72.56 Farnsworth, supra note 24, at 99.57 See Herber, Czerwenka, supra note 29, at 53.58. It may well be that a validity issue is governed by the CtSG, such as validity of a contract affected by a mistake regarding the charac-teristics of the goods; the issue referred to in the text, however, is one of those validity issues that is not governed by the CISG; in this respect,


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see F. Ferrari, Art. 4, in P.Schlechtriem (ed.), Kommentar zum Einheitlichen UN-Kaufrecht, supra note 4, at 95 ff.; H Hartnell, Rousing theSleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods, Yale Journal of International Law1993, 1 ff ; C.R. Heitz Validity of Contracts Under the United Nations Convention on Contracts for the International Sale of Goods, April 111980, and Swiss Contract Law, Vanderbilt Journal of Transnational Law 1987, 639 ft.; A. Schluchter, Die GO1tigkeit von Kaufvertrigen unterdem UN-Kaufrechl, Baden-Baden, 1996; T. Weitzmann, Validity and Excuse in the U.N. Sales Convention, Journal of Law and Commerce1997, 265

59 See Achilles, supra note 23, at 33; Farnsworth, supra note 24, at 102; Karollus, supra note 16, at 41; Neumayer, Ming, supra note 29,at 114; P. Schlechtriem, Internationales UN-Kaufrecht, Thbingen, 1997, p. 36, A. LIderitz, A. Fenge, Art. 8 CISG, in Borgerliches Gesetzbuchmit Einfihrungsgesetzen und Nebengesetzen vol. 13, Ubereinkommen der Vereinten Nationen uber VertrAge uber den internationalenWarankauf CISG), 2000, Stuttgart, p. 29.

60. For this solution, see Oberster Gerichtshof, March 20, 1997, 6sterreichische Juristische Bl5tter, 1997, 592 f61. MCC-Marble Ceramic Center Inc v. Ceramica Nuova DAgostino S.p.A June 29, 1998, 1998 WL 343335 11th Cir. (Fla.)).62. BG St. Gallen, July 3, 1997, Schweizerische Zeitschrift fOr europdisches und internationales Privatrecht, 1998, 8463. Oberster Gerichtshof, November 10, 1994, Zeitschrift fur Rechtsvergleichung, 1995, 79 ft.64. Bundesgericht, Germany, 22 December 2000, published on the Internet at .65. OLG Dresden, Germany, 27 December 1999, published on the Internet at .66. Bundesgerichtshof, November 25, 1998, Transportrecht-Internationales Handelsrecht, 1999, 1867 Id.68 HG Kanton ZOrich, November 30, 1998, Schweizerische Zeitschrift fOr ausltndisches und internationales Recht, 1999, 186 t69 Cour d'appel de Grenoble, April 26, 1995, published on the Internet at .70 Oberster Gerichtshof, Austria, 14 January 2002, published on the Internet at .71. Oberster Gerichtshof, November 10, 1994, Praxis des internationalen Privat und Verfahrensrechts, 1996, 137.72 For references in case law to Article 8(3), see BG St. Gallen, July 3, 1997, Schweizerische Zeitschritt fOr europiisches und internatio-nales Privatrecht, 1998, 84 f ; Oberster Gerichtshof, November 10, 1994, Zeitschrift fOr Rechtsvergleichung, 1995, 79 ft.73. See B. Audit, La vente internationale de marchandises, LGDJ, Paris, 1991, p. 43 ; Melis, supra note 10, at 94, Murray, supra note 43,at 48; Rudolph, supra note 28, at 142.74. In arbitration, see ICC Court of Arbitration, award No. 8324/1995, published on the Internet at .75. Bundesgerichtshof, December 11 1996, Der Betrieb, 1997, 572, expressly stating that the elements referred to in Article 8 3) have tobe taken into account when interpreting a statement or other conduct by a party in the light of Article 8 1).76. Oberster Gerichtshof, November 10, 1994, Zeitschrifl fIr Rechtsvergleichung, 1995, 79 ft.77 According to both the legislative history (see United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10March 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings ofthe Main Committee, 1981, 18) and scholarly writing (see Bydlinski, supra note 23, at 75; Farnsworth, supra note 24, at 100; Ferrari, supra note16, at 179; Lopez Lopez, supra note 23, at 125, Melis, supra note 10, at 96), the list of circumstances to be taken into account is not anexhaustive list.78 HG Kanton Z~rich, November 30, 1998, Schweizerische Zeitschrift fOr ausl.ndisches und internationales Recht, 1999, 186 ff.; ArbitralTribunal of the Hamburg Chamber of Commerce, Arbitration, 21 June 1996, published on the Internet at .79 Junge, supranote 28, at 73, Rudolph, supra note 28, at 140.80 Filanto S.p.A. v. Chilewich International Corp. April 14, 1992, 789 F. Supp. 1229 S.D.N.Y. 1992).81. See Witz, Salger, Lorenz, supra note 4, at 102.82. Audit, supra note 73, at 43.83 For the author's view, see Ferrari, supra note 16, at 180-181.84. Beijing Metals Minerals Import Export Corporation v. American Business Center Inc., June 15, 1993 993 F 2d 1178 (5th Cir. 1993).85 For this affirmation, see, e g., Calleo, The Inapplicability of the Parol Evidence Rule to the United Nations Convention on Contracts forthe International Sale of Goods, Hofstra Law Review 2000, 806-807.86 See R. Andreason, MCC-Marble Ceramic Center: The Parol Evidence Rule and Other Domestic Law under the Convention onContracts for the International Sale of Goods, Brigham Young Law Review 351 ft.; Audit, supra note 73, at 43 note 3; F. Del Duca, P. DelDuca, Dickinson Law Review 2001, 208-210; S Donnelly, M. Donnelly, Commercial Law, Syracuse Law Review 1999, 303; A. Esslinger,Contracting in the Global Marketplace: The UN Conventions on Contracts for the International Sale of Goods and the Limitation Period in the

International Sale of Goods, SE06 A.L.I.-A.B.A., 1999, 84; Harjani, The Convention on Contracts for the International Sale ot Goods in UnitedStates Courts, Houston Journal of International Law 2000, 77 ff ; M. Kilian, CISG and the Problem with Common Law Jurisdictions Journal ofTransnational Law and Policy 2001, 231; Lopez, supra note 23, at 118; Murray, supra note 43, at 46, Witz, Salger, Lorenz, supra note 4, at 96.


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87. See, apart from the decisions referred to subsequently in he text, Shuttle Packaging Systems v. Tsonakis t al. December 17, 2001published on the Internet at ; Mitchell Aircraft Spares Inc. v EuropeanAircraft Service AS October 27, 1998, 1998 U.S. Dist. LEXIS 17030.88. MCC-Marble Ceramic Center Inc v. Ceramica Nuova DAgostino S.p.A June 29, 1998,1998 WL 343335 1 th Cir. Fla.)).89. Id.90. Filante S.p.A. v. Chilewich International Corp. April 14 1992, 789 F.Supp. 1229 S.D.N.Y. 1992).91. Calzaturificio Claudia S.n.c. v.Olivieri Footwear Ltd., April 6, 1998, 1998 U.S. Dist. Lexis 4586.92. MCC-Marbie Ceramic Center Inc v. Ceramica Nuova DAgostino S.p.A June 29, 1998,1998 WL 343335 1 th Cir. Fla.)).93. Schlechtriem, supra note 69, at 36-37.94. See Achilles, supra note 23, at 33; Farnsworth, supra note 24, at 100; Magnus, supra note 26, at 168; Melis, supra note 10 at 97;Karollus, supra note 16 at 49.95. BG St. Gallen, July 3, 1997, Schweizerische Zeitschrift fior europ~isches und internationales Privatrecht, 1998, 84 f ; LG Hamburg,September 26, 1990, Praxis des internationalen Privat - und Verfahrensrechts, 1991 400 ft.96. BG St. Gallen, July 3, 1997, Schweizerische Zeitschrift fur europdisches und internationales Privatrecht, 1998, 84 1.97. See also Witz, Salger, Lorenz, supra note 4, at 103.98. Magnus, supra note, at 169; Melis, supra note 10 at 97;99. Junge, supra note 28, at 71.

100. Schlechtriem, supra note 69, 37.101. For papers dealing indetail with the issue referred to in the text, see, e.g., W.Drasch Einbeziehungs - und Inhaltskontrolle vorformu-lierter Geschafisbedingungen im Anwendungsbereich des UN-Kaufrechts, Zurich, 1999; C.T:Ebenroth Internationale Vertragsgestaltung imSpannungsverh~llnis zwischen AGBG, IPR-Gesetz und UN-Kaufrecht, sterreichische Juristische Bldtter, 1986, 681 ff., A. Janssen,Kollidierende AlIgemeine Geschftsbedingungen im nternationalen Kaufrecht CISG), Wirtschaftsrechtliche Bl.tter, 2002, 453ff.; C.M. Moecke,Das UNCITRAL-bereinkommen Ober den Warenkaut und die AIlgemeinen Geschaf1sbedingungen - doch etwas mehr als nichts?, Recht derinternationalen Wirtschaft, 1984, 678 ff.; H.Muller, AIlgemeine Gesch~ftsbedingungen im internationalen Wirtschaftsverkehr, Berlin, 1994;P. Schlechtriem, Kollidierende Gesch~tftsbedingungen im internationalen Vertragsrecht, in K.-H. Thume ed.), Festschrift for Rolf Herber zum70 Geburtstag, Neuwied, 1999, p 36 ff.; C.Sistermann, Die Anwendung des AGB-Gesetzes bei Geltung des Kaufrechts0bereinkommens derVereinten Nationen vom 11. April 1980 am Beispiel formularmassiger Schadensersatzfreizeichnungen, Munich, 1995, S. Teklote, DieEinheitlichen Kaufgesetze und das deutsche AGB-Gesetz Diss. Monster 1993), Baden-Baden, 1994; F.G. von Westphalen, AlIgemeineGeschtftsbedingungen und Einheitliches Kaufgesetz, in P.Schlechtriem ed.), Einheitliches Kaufrecht und nationales Obligationenrecht,Baden-Baden, 1987, p. 49 ff.102. Bundesgerichtshof, Germany, 31 December 2001 Internationales Handelsrecht, 2002, 14 ff.103. Id.104. LG Heilbronn, September 15 1997, published on the Internet at .105. Rechtbank Koophandel Hasselt, Belgium, 2 June 1999, published on the Internet at .106. OLG Hamm, February 8 1995, Recht der internationalen Wirtschalt, 1997, 153 ff.107. LG Kassel, Germany, 15 February 1996, published on the Internet at .108. The most recent decision referring to the provision dealing with the interpretation of the statements and conduct of the parties wasrendered in August 2002; see Geneva Pharmaceuticals Technology Corp v. Barr Laboratories Inc. et al. / Apothecon Inc. v. Barr LaboratoriesInc. et al. August 21 2002, published on the Internet at .