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GUIDE TO ARTICLE 8

Comparison with Proposed Common European Sales Law


Match-up of CISG Article 8 with Proposed Common European Sales Law Articles 4, 5, 12, 58, 59, 60, 61, 62, 63, 64, 65
CISG Article 8

(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.

(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.

(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.

Article 4 [Interpretation]

1. The Common European Sales Law is to be interpreted autonomously and in accordance with its objectives and the principles underlying it.

2. Issues within the scope of the Common European Sales Law but not expressly settled by it are to be settled in accordance with the objectives and the principles underlying it and all its provisions, without recourse to the national law that would be applicable in the absence of an agreement to use the Common European Sales Law or to any other law.

3. Where there is a general rule and a special rule applying to a particular situation within the scope of the general rule, the special rule prevails in any case of conflict.

Article 5 [Reasonableness]

1. Reasonableness is to be objectively ascertained, having regard to the nature and purpose of the contract, to the circumstances of the case and to the usages and practices of the trades or professions involved.

2. Any reference to what can be expected of or by a person, or in a particular situation, is a reference to what can reasonably be expected.

Article 12 [Unilateral statements or conduct]

1. A unilateral statement indicating intention is to be interpreted in the way in which the person to whom it is addressed could be expected to understand it.

2. Where the person making the statement intended an expression used in it to have a particular meaning and the other party was aware, or could be expected to have been aware, of that intention, the expression is to be interpreted in the way intended by the person making the statement.

3. Articles 59 to 65 apply with appropriate adaptations to the interpretation of unilateral statements indicating intention.

4. The rules on defects in consent in Chapter 5 apply with appropriate adaptations to unilateral statements indicating intention.

5. Any reference to a statement referred to in this Article includes a reference to conduct which can be regarded as the equivalent of a statement.

Article 58 [General rules on interpretation of contracts]

1. A contract is to be interpreted according to the common intention of the parties even if this differs from the normal meaning of the expressions used in it.

2. Where one party intended an expression used in the contract to have a particular meaning, and at the time of the conclusion of the contract the other party was aware, or could be expected to have been aware, of that intention, the expression is to be interpreted in the way intended by the first party.

3. Unless otherwise provided in paragraphs 1 and 2, the contract is to be interpreted according to the meaning which a reasonable person would give to it.

Article 59 [Relevant matters]

In interpreting a contract, regard may be had, in particular, to:
(a) the circumstances in which it was concluded, including the preliminary negotiations;
(b) the conduct of the parties, even subsequent to the conclusion of the contract;
(c) the interpretation which has already been given by the parties to expressions which are identical to or similar to those used in the contract;
(d) usages which would be considered generally applicable by parties in the same situation;
(e) practices which the parties have established between themselves;
(f) the meaning commonly given to expressions in the branch of activity concerned;
(g) the nature and purpose of the contract; and
(h) good faith and fair dealing.

Article 60 [Reference to contract as a whole]

Expressions used in a contract are to be interpreted in the light of the contract as a whole.

Article 61 [Language discrepancies]

Where a contract document is in two or more language versions none of which is stated to be authoritative and where there is a discrepancy between the versions, the version in which the contract was originally drawn up is to be treated as the authoritative one.

Article 62 [Preference for individually negotiated contract terms]

To the extent that there is an inconsistency, contract terms which have been individually negotiated prevail over those which have not been individually negotiated within the meaning of Article 7.

Article 63 [Preference for interpretation which gives contract terms effect]

An interpretation which renders the contract terms effective prevails over one which does not.

Article 64 [Interpretation in favour of consumers]

1. Where there is doubt about the meaning of a contract term in a contract between a trader and a consumer, the interpretation most favourable to the consumer shall prevail unless the term was supplied by the consumer.

2. The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.

Article 65 [Interpretation against supplier of a contract term]

Where, in a contract which does not fall under Article 64, there is doubt about the meaning of a contract term which has not been individually negotiated within the meaning of Article 7, an interpretation of the term against the party who supplied it shall prevail.


© Pace Law School Institute of International Commercial Law - Last updated December 13, 2011
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