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GUIDE TO CISG ARTICLE 8

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 7 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 7 [draft counterpart of CISG article 8].

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 validation of citations to this Secretariat Commentary. This match-up indicates thatarticle 7 of the 1978 Draft and CISG article 8 are substantially the same, with clarifications added to CISG article 8.


Text of Secretariat Commentary on article 7 of the 1978 Draft
[draft counterpart of CISG article 8]   [Interpretation of conduct of a party]

PRIOR UNIFORM LAW

ULIS, article 9(3). ULF, articles 4(2), 5(3), 12 and 13(2). UNIDROIT Draft of a law for the unification of certain rules relating to Validity of Contracts of International Sale of Goods, articles 3, 4 and 5.

COMMENTARY

1. Article 7 [draft counterpart of CISG article 8] on interpretation furnishes the rules to be followed in interpreting the meaning of any statement or other conduct of a party which falls within the scope of application of this Convention. Interpretation of the statements or conduct of a party may be necessary to determine whether a contract has been concluded, the meaning of the contract, or the significance of a notice given or other act of a party in the performance of the contract or in respect of its termination.

2. Article 7 [draft counterpart of CISG article 8] states the rules to be applied in terms of interpreting the unilateral acts of each party, i.e., communications in respect of the proposed contract, the offer, the acceptance, notices, etc. Nevertheless article 7 [draft counterpart of CISG article 8] is equally applicable to the interpretation of "the contract" when the contract is embodied in a single document. Analytically, this Convention treats such an integrated contract as the manifestation of an offer and an acceptance. Therefore, for the purpose of determining whether a contract has been concluded as well as for the purpose of interpreting the contract, the contract is considered to be the product of two unilateral acts.

3. Since article 7 [draft counterpart of CISG article 8] states rules for interpreting the unilateral acts of each party, it does not rely upon the common intent of the parties as a means of interpreting those unilateral acts. However, article 7(1) [draft counterpart of CISG article 8(1)] recognizes that the other party often knows or could not be unaware of the intent of the party who made the statement or engaged in the conduct in question. Where this is the case, that intent is to be ascribed to the statement or conduct.

4. Article 7 [draft counterpart of CISG article 8] cannot be applied if the party who made the statement or engaged in the conduct had no intention on the point in question or if the other party did not know and had no reason to know what that intent was. In such a case, article 7(2) [draft counterpart of CISG article 8(2)] provides that the statements made by and 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.

[The italicized phrase "a reasonable person of the same kind as the other party" was added to paragraph (2) of the 1978 Draft. Delegates to the 1980 Vienna Diplomatic Conference report as follows on its meaning. Shafik states: The addition of this phrase conformed the English text to a modification to the French text incorporating the phrase "de mˆme qualit‚" 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" (OFFICIAL RECORDS, p. 261). Kopac states: "[T]he 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. . . ." (id. at 243). Honnold states: "A person with technical skill and knowledge [is] required to make his statement in such a way as to make his meaning clear to a person not possessed of such skill and knowledge" (id.). Feltham states: "The reference to a reasonable person of the same kind is intended to ensure that the statement 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". ("The United Nations Convention on Contracts for the International Sale of Goods"; 1981 J. Bus. L. 349).]

5. In determining the intent of a party or the intent a reasonable person [of the same kind as the other party] would have had in the same circumstances, it is necessary to look first to the words actually used or the conduct engaged in. However, the investigation is not to be limited to those words or conduct even if they appear to give a clear answer to the question. It is common experience that a person may dissimulate or make an error and the process of interpretation set forth in this article is to be used to determine the true content of the communication. If, for example, a party offers to sell a quantity of goods for Swiss francs 50,000 and it is obvious that the offeror intended Swiss francs 500,000 and the offeree knew or could not have been unaware of it, the price term in the offer is to be interpreted as Swiss francs 500,000.

[Suppose the intent is not readily recognizable? Farnsworth states: "If a seller mistakenly offers to sell goods for `68,000 francs' when he intended to offer to sell them for 86,000 francs, a reasonable person of the same kind and in the same circumstances of the buyer might not realize that the seller has made a mistake in expression. If the buyer accepts, the rule of Article 19(2) would result in a contract at 68,000 francs as a matter of interpretation." Bianca-Bonell Commentary (Guiffr‚: Milan, 1987), p. 102.]

6. In order to go beyond the apparent meaning of the words or the conduct by the parties, article 7(3) [draft counterpart of CISG article 8(3)] states that "due consideration is to be given to all relevant circumstances of the case." It then goes on to enumerate some, but not necessarily all circumstances of the case which are to be taken into account. These include the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties (OFFICIAL RECORDS, p. 18).


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