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Legislative history of CISG article 8: Match-up with 1978 Draft to assess relevance of Secretariat Commentary
1978 Draft article 7 CISG article 8
(1)For the purposes of this Convention (1)For the purposes of this Convention statements made by and other con- statements made by and other con- duct of a party are to be interpreted duct of a party are to be interpreted according to his intent where the according to his intent where the other party knew or could not have other party knew or could not have been unaware what that intent was. been unaware what that intent was.
(2)If the preceding paragraph is not (2)If the preceding paragraph is not applicable, statements made by and applicable, statements made by and other conduct of a party are to be other conduct of a party are to be interpreted according to the under- interpreted according to the under- standing that a reasonable person standing that a reasonable person of would have had in the same cir- the same kind as the other party cumstances. would have had in the same cir- cumstances.
(3)In determining the intent of a party (3)In determining the intent of a party or the understanding a reasonable or the understanding a reasonable person would have had in the same person would have had, due consid- circumstances, due consideration is eration is to be given to all relevant to be given to all relevant circum- circumstances of the case including stances of the case including the the negotiations, any practices negotiations, any practices which which the parties have established the parties have established be- between themselves, usages and any tween themselves, usages and any subsequent conduct of the parties. subsequent conduct of the parties.
Although there are some differences between CISG article 8 and 1978 Draft article 7, the Secretariat Commentary remains basically relevant. The text comparison is: Paragraph (1). Paragraph (1) of CISG article 8 is identical to paragraph (1) of 1978 Draft article 7. Paragraph (2). A modification has been made to refer to "a reasonable person of the same kind as the other party", rather than simply referring to "a reasonable person". Paragraph (3). A phrase, "in the same circumstances", has been deleted.
Delegates to the Vienna Diplomatic Conference explain the modification to paragraph (2) as follows: "the words 'a reasonable person of the same kind' were intended to refer to the party to whom the statement was addressed and not to the party making the statement or performing the conduct..." (Kopac, Official Records, p. 243); the addition of this phrase conformed the English text to a modification to the French text incorporating the phrase "de même qualitè" which is said to refer to "a person from the same background as the person concerned and engaged in the same occupation, the same trade activities for example (Shafik, Official Records, p. 261); "a person with technical skill and knowledge [is] required to make his statement is such a way as to make his meaning clear to a person not possessed of such skill and knowledge" (Honnold, Official Records, p.243); "[t]he reference to a reasonable person of the same kind is intended to ensure that the statements of a tractor salesman from a developed country to a Nusquamian peasant are to be interpreted as they would be understood by the reasonable Nusquamian peasant" (Feltham, 1981 J. BUS. L. 349). The Secretariat Commentary on 1978 Draft article 7 should be read in conjunction with this explanation.
To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG