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Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods

Professor Jacob S. Ziegel, University of Toronto
July 1981

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Article 9

(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.

(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.

COMMENT

1. Article 9 is broadly in accord with Anglo-Canadian law. However, the definition in art. 9(2) of what constitutes a binding usage [frequently, but misleadingly, referred to in English case law as "custom"] goes beyond generally stated Anglo-Canadian law but is agreeable with UCC 1-205(2). The Anglo-Canadian requirement is said to be [Benjamin's Sale of Goods, para. 844; OLRC Sales Report, pp. 174 et seq.] that "the custom (sic) must be reasonable, universally accepted by the particular trade or profession or at the particular place, certain, not unlawful and not inconsistent with the express or implied terms of the contract." The CISG and Code tests strike me as more reasonable and practical, though in practice there may be little to choose between them and the Anglo-Canadian test.

2. The [Secretariat] Commentary (p. 48) notes that Article 9 does not provide any explicit rule for the interpretation of expressions, provisions or forms of contract which are widely used in international trade and for which the parties have given no interpretation. In most such cases the missing interpretation will be supplied by the parties' practices and trade usages. Difficulties are only likely to arise where the expression has no accepted meaning or has more than one meaning and each of the parties had in mind a different meaning. This difficulty is a familiar one in domestic law and cannot be overcome by rules of interpretation.

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Pace Law School Institute of International Commercial Law - Last updated April 23, 1999
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