(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.
Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)
Our bibliography contains thousands of citations in 24 languages; we encourage you to tailor your own bibliography search to the specific aspect of this article that you are researching.
Links to related articles
Words, phrases and concepts
"[N]o additional features, except for the ones [headlined] below, are to be required for [a usage
to] become binding by virtue of fiction. This also serves to prevent the risk of an interpretation of
the term 'usages' under national law and related differences of opinion on whether specific rules
are to be regarded as usages. The term 'usages' is autonomous and can, therefore, be interpreted
as broadly as possible. . . . It is not required that a usage be ancient or of long standing . . . . It
seems questionable to us whether the measure of good faith should be used to determine to what
extent usages are to be considered . . . . After all, a Chinese proposal requiring usages to be
reasonable1 was rejected so that the necessary corrections have to be left to a large extent to the
rules of the validity of national law. Insofar as there are customary rights which meet the criteria
of paragraph 2, they would have to be considered as a usage in the meaning of the CISG. The
same goes for local customs which are accepted internationally as being valid for that trading
place."2 Fritz Enderlein & Dietrich Maskow, International Sales Law, United Nations Convention
on Contracts for the International Sale of Goods (New York: Oceana 1992) 69. 1. Official Records of the United Nations Conference on Contracts for the International Sale of Goods,
Vienna 10 March - 11 April 1980, A/CONF.97/19 at 89.
2. Similarly John O. Honnold, Uniform Law for International Sales Under the 1980 United Nations
Convention, 1st ed. (Kluwer Law International 1982) 148; Michael Joachim Bonnell, in: Bianca/Bonell
Commentary on the International Sales Law (Milan: Giuffrè 1987) 109; more reserved Peter Schlechtriem,
Das Übereinkommen der Vereinten Nationen uber internationale Warenkaufvergrage - Darstellung und
Texte, Beitrage zum ausländischen und internationalen Privatrecht, Bd. 46 (Tübingen 1981) 28. "This feature is largely redundant1 because, if usages fulfil the requirement described [below], the
parties have to recognize them as a rule. Only in very rare, exceptional cases one will be able to
permit that a party invokes that he did not know, nor ought to have known, the rules which meet
the remaining requirements (e.g. a factory which regularly does not participate in transactions
abroad buys, as an exception, a machine abroad which is traded according to international usage).
On the other hand, it is not sufficient that the parties positively know certain rules, but that those
rules are not widely known; for the individual characteristics must be cumulative." Enderlein &
Maskow, id. at 69-70. 1. Critical also Ulrich Huber, Der UNCITRAL-Entwurf eines Übereinkommens über internationale
Warenkaufvertrage, Rabels Zeitschrift für ausländisches und internationales Privatrecht 43 (1979) 428, and
the Indian delegate at the diplomatic conference, Official Records, A/CONF.97/19 at 266, who both go still
further, and Franz Bydlinski, Das allgemeine Vertragsrecht, in: Doralt ed, Das UNCITRAL-Kaufrecht im
Vergleich zum österreichischen Recht (Vienna: Manz 1985) 77. "This criterion is the most relevant of all. It will be assumed, in any case, that such usages are
widely known in international trade which are known to the relevant business circles in the
majority of countries which also belong to different groups of countries, hence in particular
developed and developing countries. In a concrete case it may, however, suffice that the usages
are known in the relevant business circles of those States where the parties have their paces of
business. But they must be known there as rules governing international trade and not just
domestic transactions. The applicable usages need not generally be valid for all contracts; it is
a sufficient but also necessary requirement that they relate to sales contracts of the respective
kind. The types of sales contracts, i.e. the subcategories, are divided according to the goods sold.
Accordingly, the usages for trade in machinery and plants; raw materials or specific raw materials,
foodstuffs etc. are applied to the respective contract. But the type of contract can also be
determined according to whether the contract is one for single delivery or for delivery by
instalments; whether it is a short-term or long-term contract; whether delivery is against cash or
credit; or whether it is a tender or a direct transaction. The category of goods traded is also an
important criterion for the determination of the decisive branch; but here also other requirements
are to be considered like, e.g. the use of the goods sold (sales to resellers - e.g. dealers - on the
one hand, and to final consumers, on the other)." Enderlein & Maskow, id. at 70. "Contrary to the view held by Huber1, we do not consider this characteristic superfluous, but
rather very important. It may very well occur, for instance, that specific rules, which are applied
in industrialized countries, are known but not applied in developing countries. Their agreement
can then not be assumed, except for contracts between parties from industrialized countries."
Enderlein & Maskow, id. 1. Huber, id.
Pace Law School Institute of
International Commercial Law
- Last updated March 1, 2001