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(D) Art 8 CISG

Article 8 of the CISG outlines the interpretation of statements and conduct between parties in a sales contract, emphasizing the intention of the parties and the understanding of a reasonable person in similar circumstances. It provides guidelines for determining contract content, addressing defects of intent, and the treatment of general terms and conditions. The article aims to standardize contract interpretation and supplement national rules, ensuring clarity in international sales transactions.

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51 views41 pages

(D) Art 8 CISG

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02:58 23/10/24 Schlechtriem/Schwenzer/Schroeter | CISG Art. 8 Rn.

1-66 - beck-online

CISG Art. 8 [Interpretation of Schmidt-Kessel Schlechtriem/Schwenzer/Sc

statements and conduct] hroeter, Commentary on the
UN Convention on Contracts
for the International Sale of
Goods (CISG)
7th Edition 2019

Art. 8 [Interpretation of statements and conduct]

(1) For the purposes of this Convention, statements and other conduct of a Party shall be interpreted in accordance with
that Party's intention if the other Party knew or could not have been unaware of that intention.

(2) Where paragraph 1 does not apply, statements and other conduct of a party shall be interpreted in the manner in which a
1
reasonable person of the same kind as the other party would have understood it under the same circumstances.

(3) In order to determine the intention of a party or the view which a reasonable person would have had, all relevant circum‐
stances shall be taken into account, in particular the negotiations between the parties, the practices which have developed
2
between them, the usages and the subsequent conduct of the parties.

Art. 8 Art. 8
(1) For the purposes of this Convention statements made 1) For the purposes of this Agreement, indications and
by and other conduct of a party are to be interpreted ac‐ other conduct of a party shall be construed according to
cording to his intent where the other party knew or could the intention of that party where the other party knew or
not have been unaware what that intent was. could not be unaware of that intention.
(2) If the preceding paragraph is not applicable, state‐ 2) If the preceding paragraph is not applicable, the indica‐
ments made by and other conduct of a party are to be in‐ tions and other conduct of a party must be interpreted
terpreted according to the understanding that a reason‐ according to the meaning that a reasonable person of the
able person of the same kind as the other party would same quality as the other party, placed in the same situa‐
have had in the same circumstances. tion, would have given them.
(3) In determining the intent of a party or the understan‐ 3) In determining the intention of a party or what a rea‐
ding a reasonable person would have had, due considera‐ sonable person would have understood, account must be
tion is to be given to all relevant circumstances of the taken of the relevant circumstances, including any nego‐
case including the negotiations, any practices which the tiations that may have taken place between the parties,
parties have established between themselves, usages any habits that have developed between them, any usa‐
and any subsequent conduct of the parties. ges and any subsequent conduct of the parties.

Designs: New Yorker E 1978 Art. 7 .

Literature:
L. F. Del Duca, Implementation of Contract Formation Statute of Frauds, Parol Evidence, and Battle of Forms CISG Provisi‐
ons in Civil and Common Law Countries, 25 J. L. & Com. (2005-06), 133; Ferrari, Auslegung von Parteierklärungen und -ver‐
halten nach UN-Kaufrecht, IHR 2003, 10; Flechtner, The U. N. Sales Convention (CISG) and MCC-Marble Ceramic Center, Inc.
v. Ceramica Nuova d’Agostino, S. p. A.: The Eleventh Circuit Weights in on Interpretation, Subjective Intent, Procedural Limits
to the Conventions Scope, and Parol Evidence Rule, 18 J. L. & Com. (1999), 259; Magnus, Das UN-Kaufrecht – aktuelle Ent‐
wicklungen und Rechtsprechungspraxis, ZEuP 2002, 523; Murray, An Essay on the Formation of Contracts and Related Mat‐
ters Under the United Nations Convention on Contracts for the International Sale of Goods, 8 J. L. & Com. (1988), 11; Pam‐
boukis, The Concept and Function of Usages in the United Nations Convention on Contracts for the International Sale of
Goods, 25 J. L. & Com. (2005-06), 107; Schmidt-Kessel/Meyer, Allgemeine Geschäftsbedingungen und UN-Kaufrecht, IHR
2008, 177

I. Overview (para. 1)
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II. Subject matter of regulation (para. 1a-8)

1. Interpretation and supplementation of statements and conduct (para. 1a, 2)

2. Determination of the contract content (paras. 3-5)

3. Interpretation and defects of intent (paras. 6, 7)

4. Interpretation and partial invalidity (para. 7a)

5. Limit to the basis of the transaction (para. 8)

III. Guiding principles of interpretation and supplementation (paras. 9-11)

1. Will of the party and protection of the public interest (paras. 9 and 10)

2. Completion of the contract (para. 11)

IV. Interpretation according to the will of the declarant (Art. 8 I) (paras. 12-18)

1. Determination of the will of the parties (paras. 12, 13)

2. Knowledge or attributable lack of knowledge of the recipient of the declaration (paras. 14-18)

V. Interpretation according to reasonable understanding (Art. 8 II) (paras. 19, 20)

VI. Determination of the contract content (paras. 21-27)

1. Steps in determining the content of the contract (para. 21)

2. Determinable common will of the parties and recognizable will of one party (paras. 22, 23)

3. Objective third parties (para. 24)

4. Judicial contract supplement (paras. 25-27)

VII. Specific questions of interpretation (paras. 28-51b)

1. Alignment with the subject matter of the contract (para. 28)

2. Interpretation of the contract as a whole (para. 29)

3. Good faith as a guideline for interpretation (para. 30)

4. Consideration of the negotiations and the circumstances of the conclusion of the contract (paras. 31-35b)

a) General (para. 31)

b) Parol Evidence Rule and presumption of correctness and completeness (paras. 32-34)

c) Treatment of merger clauses (paras. 35-35b)

5. Silence and obligation to ask questions (paras. 36-38)

6. Foreseeability and recognizability as circumstances (para. 39)

7. Usual meaning of the word (para. 40, 40a)

8. Language risks (paras. 41-43)

9. Practices (para. 44)

10. Customs (paras. 45, 46)

11. Contra proferentem (Rn. 47, 48)

12. Favor negotii and effectiveness-oriented interpretation (para. 49)

13. Subsequent conduct of the parties (paras. 50-51a)

14. Favor of the debtor (Rn. 51b)

VIII. Treatment of general terms and conditions (paras. 52-59)

1. Inclusion of general terms and conditions (paras. 52-56)

2. Surprising clauses (para. 57)

3. Priority of the individual agreement (para. 58)

4. Interpretation of general terms and conditions (para. 59)

IX. Treatment in the proceedings (paras. 60, 61)

X. Comparison with the German-speaking legal systems (paras. 62-66)

1 Switzerland: in the same position.

2 Switzerland: Trade Customs, Austria: Customs.

I. Overview
The Convention standardizes the standards of contract interpretation and thus displaces conflicting national rules of
interpretation and evidence. Article 8 specifies the criteria for interpreting the statements and behavior referred to in
the text and at the same time governs the interpretation of the contract that has been concluded. The primary crite‐
rion is the will of the parties ( paragraph 1 ), supplemented by the (objective) understanding of reasonable persons
of the same type ( paragraph 2 ). In addition, the provision specifies a series of circumstances that must be taken
into account in the interpretation ( paragraph 3 ). In addition to interpretation in the narrower sense, the provision –
together with Articles 9 and 35 – provides important information on the possibilities and limits of judicial supple‐
mentation to a contract or the acceptance of implied terms . Finally, Article 8 – together with Articles 14 ff. – is one
of the guidelines for the treatment of general terms and conditions, which is only rudimentarily covered in the
Convention.
3
II. Regelungsgegenstand

1. Interpretation and supplementation of statements and conduct (para. 1a, 2)

2. Determination of the contract content (paras. 3-5)

3. Interpretation and defects of intent (paras. 6, 7)

4. Interpretation and partial invalidity (para. 7a)

5. Limit to the basis of the transaction (para. 8)

3 For the background, see Schlechtriem/ Junge , 3rd edition 2000, Art. 8 para. 1 and Staudinger/ Magnus CISG Art. 8
paras. 4–6.

1. Interpretation and supplementation of statements and conduct

Article 8 regulates the interpretation of statements made by the parties to a sales contract governed by the CISG,
as well as the interpretation of their other conduct. The regulation excludes recourse to national rules of interpreta‐
4
tion. The subject of interpretation are in particular those declarations which lead to the conclusion of the contract
5
including choice of law clauses. 6 Also included are declarations by the parties which lead to the termination of
7
the contract, namely both unilateral declarations within the meaning of Art. 26 , as well as those aimed at conclu‐
8 9.
ding a termination agreement or an agreement on the return of defective goods The same applies to time limits
under Art. 47 CISG 10 or agreements on the transfer of the contract to a third party. 11
12
In addition, Article 8 governs the interpretation of any legally relevant conduct of the parties to the contract: This
applies, for example, to the question of whether the conduct of one party can be seen as a refusal to perform, 13
14 15 16
and for the notification of defects according to Art. 39 . The provisions of Article 71 and Art. 72 The ne‐

cessary forecasts regarding the future performance capability and willingness of the contractual partner are to be
measured against the standards set out in Art. 8 , as is the question of whether a party is prepared to accept elec‐
17
tronic declarations (e-mail, etc.). The same applies to the determination of the materiality of breaches of con‐
18
tractual obligations within the framework of Article 25 . Whether the conduct of a party has any explanatory va‐
19
lue at all and whether this is possibly supported by a corresponding intention to be bound , is also governed by
the provision: This is of practical importance in particular in the case of passivity towards the breach of contract by
20
the other party, for example in the case of silence on the part of the creditor after late receipt of payment or if the
21
seller regrets the other party's withdrawal from the contract. In each case, there is a tacit waiver of one’s own le‐
22
gal positions. Conversely, the payment of the purchase price or the opening or disbursement of a letter of credit
23
may have declaratory significance in the sense of a declaration of acceptance upon conclusion of the contract.
Occasionally, the failure to give notice of defects or the failure to give notice of defects within the prescribed period
24
( Articles 39 and 43 ) is also included here. This is in principle correct; however, the relevant provisions are not
25
clear both in terms of the requirements for the complaint, and with regard to the legal consequences leges spe‐
ciales . However, the attempt to specify the obligation to mitigate damages under Art. 77 by reference to the stan‐
26
dard of reasonableness within the meaning of Art. 8 II goes too far
4 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 1 (“national dogmas of interpretation”). Apparently overlooked by OLG Frank‐

furt a. M. 31.3.1995 , CISG-online 137, where reference is made to German rules of interpretation.
5 For example, OGer Thurgau 19.12.1995, CISG-online 496; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 3 . This applies in
particular to Art. 8 II also for identical declarations, cf. below → Rn. 19 .
6 HR 28.1.2005, CISG-online 1002; Kingston Estate Wines Pty Ltd. v. Vetreria Etrusca S. r. l. , Supr. Ct. SA 14.3.2008,
CISG-online 1891; Dokter RabelsZ 68 (2004), 430 ( 435 ff.). On choice of law clauses in general terms and conditions
see below → para. 55 .
7 Arbitration Court of Hamburg 21.3.1996 , CISG-online 187; Higher Regional Court of Koblenz 31.1.1997 , CISG-online
256; AP Navarra 27.12.2007, CISG-online 1798; Arbitration Court of Serbia 15.7.2008, CISG-online 1795.
8 OLG Düsseldorf 12.3.1993 , CISG-online 82; Perales Viscasillas 25 J. L. & Com. (2005-06), 167 (171);
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 3 .
9 AP Madrid 10.3.2009, CISG-online 2084.
10 Arnhem Court of Appeal 7.10.2008, CISG-online 1749.
11 See BGer 4.8.2003, CISG-online 804 = IHR 2004, 28 (30 ff.); OGH 24.4.1997, CISG-online 291 and Schmidt-Kessel RIW
1996, 60 ff.
12 Bamberger/Roth/ Saenger CISG Art. 8 para. 1 ; Enderlein/Maskow/Strohbach Art. 8 note 1; Staudinger/ Magnus CISG
Art. 8 para. 8. Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 paras. 7–10 , on the other hand, are far too concep‐
tual .
13 See Arbitration Court of Hamburg HK 21.3.1996 , CISG-online 187; Arbitration Court of Hamburg friendly arbitration
29.12.1998, CISG-online 638.
14 HGer Zurich 17.9.2014, CISG-online 2656 No. IV. 5.2.2.2.
15 Staudinger/ Magnus CISG Art. 8 Rn. 19.
16 According to the case law LG Krefeld 28.4.1993 , CISG-online 101.
17 CISG-AC, Op. 1 ( Ch. Ramberg ), Comment 15.4 and 15.6 = IHR 2003, 244 (244–252).
18 Federal Court of Justice 23.9.2013, CISG-online 2560 No. 3.2; Higher Regional Court of Zurich 17.9.2014, CISG-online
2656 No. IV. 2.1.3.2. However, for possible modifications, see Article 25 below → para. 39 .
19 On this point, see BGH 25.3.2015 , CISG-online 2588 paras. 27–29.
20 On the merits LG Mönchengladbach 22.5.1992 , CISG-online 56. General information on the explanatory value of si‐
lence below → paras. 36 – 38 .
21 OLG Celle May 24, 1995 , CISG online 152.

2. Determination of the contract content

27
While the PECL contains an explicit regulation on the interpretation of contracts in Art. 5 :101 and the PICC diffe‐
rentiate between the interpretation of contracts (Article 4.1) and the interpretation of individual declarations (Article
4.2), Article 8 , according to its wording, only deals with the interpretation of individual declarations. Nevertheless, it
28
is almost undisputed that the provision also regulates the interpretation of contracts. In this respect, too, recourse
to national law is therefore excluded. However, a justification for the application of Article 8 is rarely given. Occasio‐
nally, reference is made to the fact that Article 19 makes the content of the offer part of the content of the contract
29
and that the interpretation of the contract is therefore ultimately the interpretation of the offer. In any event, Article
8 (in particular together with Articles 6 and 11 ) establishes general principles of the Convention which, according to
30
Article 7 (2) (1), fill a possible internal gap. Article 8 is also relevant for the interpretation of the Treatyas far as it
31
concerns the conditions for the application of the Convention. Also covered are the interpretation of a number of
32
(CISG) contracts and their relationship to each other and the determination of the correct parties to the contract.
33

34
In order to be applied to the interpretation of treaties, Article 8 must , however, be adapted accordingly. The inter‐
pretation of a contract differs from the interpretation of individual declarations in that it presupposes the consensus
35
of the parties and must therefore not depart from it. The limits of this sufficient agreement arise from Article 19 .
36
For the preliminary determination of consensus, the respective party statements must be interpreted separately.
37

In the context of contract interpretation, Article 8 also applies to questions that are not governed by the CISG . 38
Apart from the fact that the Convention itself refers in Article 19 (3) to agreements on issues which are not other‐
39
wise regulated by the Convention, this already follows from the requirement to interpret the Treaty as a whole.
Above all, however, the interpretation of a CISG contract is, according to Article 8 , a subject matter dealt with by the
Convention, without the provision imposing any restriction in this respect. For example, the determination of a set-
40 41
off prohibition that has not been expressly agreed upon or a party change by way of interpretation according to
the rules of the Convention. Also for the determination of the exact content of contractual non-competition clauses
42 43,
and distribution restrictions or exclusive supply agreements Article 8 isto be applied and also to the question
44
whether the parties have agreed on a retention of title. An arbitral decision has also decided, by reference to Arti‐
45
cle 8 , whether the conditions for novation are met. Similarly, the interpretation of a settlement arising from a dis‐
pute concerning a CISG contract is also governed by Article 8 . 46 The provision is also relevant for the interpretation
of the representative’s declaration with regard to whether the representative is acting in his own name or in the name
47
of another person, of the conduct of a supplier who has previously supplied for the seller and now wishes to be‐
come a contracting party himself, 48 and generally for the determination of the correct contracting parties by way of
49
interpretation. Tax issues, in particular the allocation of tax burdens, may also have to be decided by reference to
50
Article 8 , such as the question of whether VAT can be passed on to the purchaser. Finally,as the reference in Arti‐
cle 19 (III) already shows, Article 8 is to be used for the interpretation of jurisdiction agreements and arbitration clau‐
51
ses. The same applies to the place of performance agreements governing international jurisdiction.
27 Cf. Comment A to Art. 5 :101 PECL .
28 District Court of Arnhem 14.10.2008, CISG-online 1818; HGer Zurich 25.6.2010, CISG-online 2161 No. 4.2.6;
Bianca/Bonell/ Farnsworth Art. 8 note 2.1.; Enderlein/Maskow/Strohbach Art. 8 note 2.3.; Honnold/Fletchner Art. 8
Rn. 105; Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 Rn. 2 ; Leisinger , p. 145; Najork , p. 14;
Schwenzer/Hachem/Kee , Rn. 26.6; Soergel/ Lüderitz/Fenge CISG Art. 8 Rn. 10; Staudinger/ Magnus CISG Art. 8 Rn. 7;
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 3 . AA however Heuzé , note 235. without reference to other voices.

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29 So – at least for the conclusion of a contract in the classic form by offer and acceptance – Najork , p. 14. Similarly
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 3 , which traces the limitation of Art. 8 back to the traditional dogma of the
conclusion of a contract by offer and acceptance.
30 This is also the case with the second reasoning by Najork , p. 14; too much of Brunner/ Hurni Art. 8 Rn. 1 , which even
advocates an alternative application of Artt. 4.1 – 4.8 PICC.
31 See HGer Aargau 5.2.2008, CISG-online 1740 No. 3.4.1 (qualification of the contract as a sale and not as a commis‐
sion according to the standard of Art. 8 ); HGer Aargau 26.11.2008, CISG-online 1739 No. 4.2 (distinction between
sale and commission).
32 Norfolk Southern Railway Company v. Power Source Supply, Inc., U. S. Dist. Ct. (W. D. Pen.) 25.7.2008, CISG-online
1776.
33 District Court of Arnhem 9.3.2010, CISG-online 2095 no. 4.5 et seq.; for the situation in the case of representation see
also below → para. 5 .
34 Staudinger/ Magnus CISG Art. 8 para. 7. For details see below → paras. 21 – 27 .
35 See Comment A to Art. 6 :102 PECL and BGH 25.3.2015 , CISG-online 2588 paras. 37, 53.
36 Cf. Art. 2.11 PICC; Art. 2 :103 PECL .
37 Comment 1 to Art. 4.2 PICC.
38 Staudinger/ Magnus CISG Art. 8 Rn. 7. AA Ferrari IHR 2003, 10.
39 See below → para. 29 .
40 OLG Hamburg 5.10.1998 , CISG-online 473 (net clause justifiesan exclusion of set-off according to Art. 8 ); OLG Linz
23.3.2005, CISG-online 1376 (effective inclusion of the general terms and conditions); Staudinger/ Magnus Art. 8 Rn.
7. Differently, however, OLG Munich 28.1.1998 , CISG-online 339 (without justification).
41 This is what is unspoken in the Federal Court of 4 August 2003, CISG-online 804 = IHR 2004, 28 (30 ff.). The Court of
Appeal wrongly held that OGH 24 April 1997, CISG-online 291 (without further discussion of the issue); on the as‐
sumption of a contract as a subject of the UN Convention on Contracts for the International Sale of Goods, see
Schmidt-Kessel RIW 1996, 60 ff.
42 CA Grenoble 22.2.1995, CISG-online 151; cf. Staudinger/ Magnus CISG Art. 8 para. 7.
43 Staudinger/ Magnus CISG Art. 8 Rn. 7.
44 Roder Zelt- und Hallenkonstruktionen GmbH v. Rosedown Park Pty Ltd. , FCA 28.4.1995, CISG-online 218.
45 ICC 7331/1994 , CISG-online 106 (on the determination of the separate animus novandi which the arbitral tribunal – in
my opinion wrongly – considered necessary ). However, novation is correctly to be understood as an object regulated
by the Convention, as long as the content of the new agreement does not lie outside the scope of the Convention: be‐
low Schroeter → Art. 29 para. 21 (lease agreement instead of purchase agreement).
46 HGer Zurich 24.10.2003, CISG-online 857.
47 See LG Hamburg 26.9.1990 , CISG-online 21; OGer Thurgau 19.12.1995, CISG-online 496; Gerechtshof 's-Hertogen‐
bosch 2.1.2007, CISG-online 1434; Soergel/ Lüderitz/Fenge CISG Art. 8 Rn. 1. Moreover, the right of representation is
not the subject of the Convention: above Ferrari → Art. 4 Rn. 34 ; the rule of interpretation can of course make re‐
course to the statute of representation unnecessary, as in OGer Thurgau 19.12.1995, CISG-online 496.
48 BGer 4.8.2003, CISG-online 804 E. 4.4.
49 LG Hamburg 26.9.1990 , CISG-online 21; OGer Thurgau 19.12.1995, CISG-online 496; OLG Stuttgart 28.2.2000 , CISG-
online 583; OLG Frankfurt a. M. 30.8.2000 , CISG-online 594; OLG Naumburg 13.2.2013 , CISG-online 2455; cf. also Ge‐
rechtshof Arnhem 9.3.2010, CISG-online 2095 no. 4.5 f.
50 OLG Cologne 3.4.2006 , CISG-online 1218 (interpretation generally leads to the relevant tax regulations of the seller's
country being decisive); AG Geldern 17.8.2011 , CISG-online 2302.
51 Château des Charmes Wines Ltd. v. Sabaté USA Inc. U. S. Ct. App. (9th Cir.) 5.5.2003, CISG-online 767; OLG Düssel‐
dorf 30.1.2004 , CISG-online 821; OLG Stuttgart 15.5.2006 , CISG-online 1414; RB Arnhem 17.1.2007, CISG-online

1476 No. 2.5; OLG Düsseldorf 22.7.2014 , CISG-online 2567 Rn. 70; BGH 25.3.2015 , CISG-online 2588 Rn. 32; cf. be‐
low → Art. 9 Rn. 4 .

3. Interpretation and defects of intent

According to the prevailing opinion, the challenge of declarations due to defects of intent is a question of validity
52
and is therefore left to national law according to Article 4, sentence 2, letter a. The consequences of the dis‐
crepancy between the actual will and the content of the declaration under Article 8 (2) are, according to the reason‐
53
ing, not regulated in the Convention. The necessary distinction between interpretation and defects of intent is,
54
however, problematic, since the criteria of interpretation also address the relevance of certain errors and thus as‐
sign risks of error : In particular, Article 8 declares that what is actually intended is decisive even if the wording is in‐
55
correct, if the recipient of the declaration must know the correct intention; The latter therefore bears the risk of er‐
ror. An example of this situation would be an obvious calculation error, which is to be treated according to Article 8
56
and not according to national error law. In these cases, therefore, identifiable errors in the act of declaration or in
57
the formulation of the will are already irrelevant under uniform law. Furthermore, the risk of error on the part of the
offeror when concluding the contract is at least temporarily minimised by the possibility of revocation under Article
16. Finally, in view of Article 19, the question ariseswhether it would be compatible with the values of the Convention
58
to terminate a contract on the grounds of an error which does not meet the materiality threshold of that provision.
59
The relevance of national rules on the challenge of errors is therefore at least partly doubtful.

The Convention also contains conclusive provisions for a whole series of defects of will: to the extent that, for
example, transmission risks under national law are also assigned by the law of error, Article 27 takes precedence
60
over this. Furthermore, national rules on sham transactions are not to be taken into account: Article 8 establishes
the validity of the concealed transaction; the sham transaction has no effects as it is not intentional accordingto Ar‐
61 62
ticle 8 I. Also irrelevant is a secret reservation: Article 8 (1 )(2) and (2) exclude its relevance. To the extent that
national law resolves a disagreement on individual points according to rules on defects of will, Article 19 takes its
63
place. Finally, the consequences of a lack of awareness of the declaration are rightly not a question of validity wit‐
64
hin the meaning of Article 4, sentence 2 , letter a; Rather,it can be inferred from Article 8 (1) and (2) that under the
65
CISG it is not important whether the person acting was aware that he was making a legally relevant statement.
52 OGH 20.3.1997, CISG-online 269; HauptstadtG Budapest 1.7.1997, CISG-online 306; OLG Hamburg 5.10.1998 , CISG-
online 473; Bianca/Bonell/ Farnsworth Art. 8 note 3.4.; above Ferrari → Art. 4 Rn. 24 ; Heuzé , note 235.; below Schro‐
eter → Before Artt. 14–24 Rn. 31 ; Soergel/ Lüderitz/Fenge CISG Art. 8 Rn. 4; Staudinger/ Magnus CISG Art. 8 Rn. 21;
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 4 . For more in-depth information see Klass , Interpretation and Construction in
Contract Law.
53 Schlechtriem/Schroeter , International Sales Law, para. 217.
54 See Note 1 to Article 5 :101 PECL .
55 Below → para. 22 . Overlooked by BGH 27.11.2007 , CISG-online 1617 para. 18 (application of “German general pri‐
vate law” possible).
56 So rightly Schroeter EWiR 2007, 303 against BGH 27.11.2007 , CISG-online 1617 para. 18. See
Schwenzer/Hachem/Kee , para. 17.36.
57 As here now also Schwenzer/Hachem 57 Am. J. Comp. L. (2009), 472; Schwenzer/Hachem/Kee , para. 17.34. Like‐
wise earlier Soergel/ Lüderitz/Fenge CISG Art. 8 para. 4 (for the error of declaration). Different
Enderlein/Maskow/Strohbach Art. 8 note 3.4.; Ferrari IHR 2003, 10 (13) (in each case question of validity).
58 On the view of error as a problem of consensus, which can be found in England, see Anson/Beatson , p. 321 ff. See
also Heuzé , note 235.
59 According to HGer Aargau 5.2.2008, CISG-online 1740 No. 3.2.1, even a lack of awareness of the declaration is harm‐
less. The situation may be different in Miami Valley Paper v. Lebbing Eng'g GmbH , U. S. Dist. Ct. (S. D. Oh) 26.3.2009,
CISG-Online 1880 (no summary judgment).

4. Interpretation and partial invalidity

According to Article 4, sentence 2, letter a, the Convention does not regulate questions of the validity of the con‐
tract unless the Convention provides otherwise. This rule causes difficulties where invalidity orders based on con‐
flict of laws only affect parts of a contract. The question then arises as to which rules should be used to decide on
the fate of the contract as a whole. It correctly follows from Article 4 , sentence 2, letter a that the primary focus
should be on the norm ordering the invalidity itself: if this norm requires the invalidity of the entire contract - for
example, for the purpose of deterrence - this decision takes precedence. However, the remaining cases in which
the norm does not affect the validity of the other parts of the contract have not yet been clarified. Some people ar‐
gue that the law which brought about the partial invalidity is also relevant in this respect. 66 However, Article 4, sen‐
tence 2 , letter a, does not require this, so that recourse to national provisions on partial invalidity can only be cons‐
idered if the Convention does not contain any provision. However, such a provision can be found in Article 8 : the
standard for interpretation will in each case be the hypothetical question of whether the parties would have conclu‐
67
ded one part of the transaction even without the other part being void. The law applicable to the validity of a le‐
gal transaction, which is invoked via the conflict of laws rules of the lex fori , is often not suitable in the case of in‐
ternational contracts to decide on the scope (and consequences) of partial invalidity, because this will often be ba‐
68
sed on the intervention rules of the forum and not on the lex contractus . There is therefore no gap justifying the
applicability of national law.
66 For example, for partial formal invalidity, see Schlechtriem/Schwenzer/ Schlechtriem , 4th edition 2004, Art. 11 , para.
7.
67 See Schlechtriem , Uniform UN Sales Law, p. 31 fn. 138; Wey , para. 304 and (especially on Swiss antitrust law) para.
421.
68 For partial formal invalidity, see below → Art. 11 para. 7 .

5. Limit to the basis of the transaction

Difficulties can also arise in distinguishing between the interpretation of the contract and the – controversial in its re‐
69
levance – – Idea of a relief through hardship , unaffordability, disruption of the basis of the contract or similar: In
principle, the Convention prohibits a modification of the content of the contract determined by interpretation and, if
70
necessary, supplementation by the judge. But even if many authors have considered the – rare – possibility of re‐
71 72
lief from damagesunder Article 79, is accepted because of “unaffordability”, is primarily concerned with the dis‐
73
tribution of risk to be determined by interpretation.
69 See Schlechtriem/Schroeter , International Sales Law, paras. 678–682 and RB Tongeren 25.1.2005, CISG-online
1106.
70 Cf. Comment B to Art. 5 :101 PECL .
71 In the event of disturbances of this kind, the fate of the claim for performance shall be governed by the national law of
the forum ( Article 28 ).
https://beck-online-beck-de.peacepalace.idm.oclc.org/?vpath=bibdata%2Fkomm%2FSchlechtriemSchwenzerKoUNKaufR_7%2FUNKaufRUe%2Fco… 8/41
02:58 23/10/24 Schlechtriem/Schwenzer/Schroeter | CISG Art. 8 Rn. 1-66 - beck-online
72 Schlechtriem/ Stoll , 3rd edition 2000, Art. 79 para. 39 f.; below Schwenzer → Art. 79 para. 49 , each with further
references.
73 See Najork , p. 157 f.

III. Guiding ideas of interpretation and supplementation

1. Will of the party and protection of the public interest (paras. 9 and 10)

2. Completion of the contract (para. 11)

1. Party will and traffic protection

74
The apparently first cross-jurisdictional regulation of the interpretation of contracts between private law subjects
does not escape the standard dilemma of rules of interpretation in a contract law system based on private auto‐
nomy: on the one hand, the enforcement of the contractual obligation is only legitimized by the will of the debtor
concerned, on the other hand, the latter must communicate his will, i.e., enter into contact with the other party from
the sphere of his own decision-making; with a few exceptions, he is forced to use relevant codes: in order to enter
into a commitment, the individual must therefore be prepared to relativize the dominance of his will through the li‐
mitations of communication. Rules of interpretation serve primarily to deal with the regularly occurring differences
75
between will and communication.

In line with its emphasis on private autonomy in Article 6 , the Convention places the will of the person making the
declaration first in Article 8 I ; in relation to the conclusion of the contract, this corresponds to the requirement for a
76,
(subjective) meeting of minds. This essentially dominant theory of the will however, already in the same para‐
77
graph, the traffic protection encoded in the standards of the could not have been unaware draws a line In prac‐
tice, the so-called objective interpretation – formally laid down as secondary in Article 8 (2) – prevails, based on
the hypothetical understanding of a reasonable person ‘in the shoes’ of the person to whom the declaration is ad‐
78
dressed. The reason for this preponderance lies in the nature of the procedural determination of the content of
the declaration, in which the external facts of the declaration – and, whether expressed or unadmitted, its objective
interpretation under Article 8 (2) – regularly constitute an indispensable indication for establishing the actual inten‐
79
tion of the parties. Moreover, Article 8( II) may apply even if neither of the parties invokes a genuine will within
80
the meaning of Article 8 (I) .
74 See Staudinger/ Magnus CISG Art. 8 para. 3; Soergel/ Lüderitz/Fenge CISG Art. 8 para. 1. For the interpretation of in‐
ternational treaties already addressed earlier, see Art. 31 et seq. Vienna Convention on the Law of Treaties and Bal‐
dus , pp. 139–152 et passim.
75 Fundamental to the primacy of the will over heteronomous elements Lobinger , p. 66 ff., 336 et passim .
76 Honnold/Fletchner Art. 8 para. 106; Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 paras. 1, 2; Staudinger/ Magnus CISG
Art. 8 para. 17; cf. Note 2 to Art. 5 :101 PECL .
77 Honnold/Fletchner Art. 8 Rn. 106; cf. Tjittes R. M. Themis 2005, 2 (7) (“subjective-objective interpretation”).
78 MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A. , U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1391; Honnold/Fletchner Art. 8 Rn. 107; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 5 ; cf. Note 4
to Art. 5 :101 PECL . The picture of the recipient's shoes can also be found below in Schroeter → Art. 14 Rn. 121 .
79 However, the conclusion drawn by a US federal appeals court of a substantive presumption that the will of the parties
under Art. 8 I corresponds to an interpretation under Art. 8 II goes too far ( MCC-Marble Ceramic Center, Inc. v. Cera‐
mica Nuova D'Agostino S. P. A. , U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-online 342 = 144 F. 3d 1384, 1388: It is evi‐
dently due to the situation, unusual for US courts, of actually having to determine the subjective will of the parties.
See 144 F. 3d 1384, 1387: The court expressly emphasises the deviation from usual US practice this represents).
80 HGer Zurich 17.9.2014, CISG-online 2656 No. IV. 5.1.3.1.

2. Completion of the contract

The convention's rules of interpretation also have a second function to fulfil when interpreting contracts: the ascer‐
tainable intention of the parties usually focuses on a few core issues of the contract conclusion; the parties have
not given any thought to other points - in the end, without this calling the contractual obligation into question. Ulti‐
mately, this does not mean that the contract is incomplete: it simply assigns the risk to the party who relies on a
certain contractual content but cannot prove its existence; the convention therefore does not recognise a gap re‐
81
quirement comparable to German law. That the Convention does not necessarily leave it at that conclusion is al‐
ready shown by its validity as dispositive law and the possibility of its further development according to the rules
of Article 7 (2) Alt. 1, by the inclusion of customs and practices according to Article 9 and in particular Article 8 (2)
82
. The provision therefore also fulfils functions in supplementing ‘incomplete’ treaties; What is unclear is only
83
where the limits of this heteronomous contract supplement lie. Mechanisms for supplementing the treaty under
84 85
national law are displaced. This even applies to the determination of the purchase price, see Article 55 .
81 Apparently different: Schwenzer/Hachem/Kee , paras. 26.65, 26.69, but without justification.
82 As here now also Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 para. 29 (citing favor contractus , see below →
para. 49 ); in substance also OLG Cologne 2.7.2007 , CISG-online 1811 para. 28.
83 Below → paras. 25 – 27 .
84 Schwenzer/Hachem/Kee , paras. 26.4, 26.71 and below → paras. 25 – 27 . See OLG Cologne 2.7.2007 , CISG-online
1811 para. 37. Different arbitration law of the exchange for agricultural products in Vienna 10.12.1997, CISG-online
351.
85 KG Vaud 29.2.2016, CISG-online 2761 No. 4.2.2.

IV. Interpretation according to the will of the declarant ( Art. 8 I )

1. Determination of the will of the parties (paras. 12, 13)

2. Knowledge or attributable lack of knowledge of the recipient of the declaration (paras. 14-18)

1. Determination of the will of the parties

Article 8 I fundamentally requires the clarification of the parties' intentions even to the extent that they have not
86
been reflected in the objective content of the declaration. A general substantive presumption that the parties’ in‐
Article 87 88
tention corresponds to an interpretation according to Art. 8 II , does not justify paragraph 1 . Instead, the
Convention requires the courts to take into account a number of circumstances in determining the will ( Article 8 III
89 90 91
). , namely the negotiations between the parties, the customs that have developed between them and
92 93
customs and the party’s subsequent conduct. This list, which also had an impact on other efforts to harmo‐
94 95
nize contract law, is not exhaustive. Rather, as Article 8 (3) expressly emphasises, all conceivable circumstan‐
96
ces must be taken into account. The purpose of this provision is to exclude formal restrictions on the interpreta‐
tive material to be taken into account by the court: the Convention does not impose any formal limits on interpreta‐
97
tion and thus supersedes contrary national rules. Specific rules on the extent to which empirical investigations
98
into the circumstances referred to in Article 8 III are also part of the determination of the parties’ will, have not
yet developed. In any case, the primary starting point must always be the wording of the declaration, which is not
99
expressly mentioned in paragraph 3 .

Art. 8 III generalizes the rule of freedom of form laid down in Art. 11 for the sales contract in two respects: firstly,
no declaration to which the Convention applies needs to be in writing and can be proven in any way; secondly, the
substantive and evidentiary freedom of form is directed not only against written form requirements, but against
any substantive or formal restriction of the material for interpretation. The weighting of the material and the pro‐
100
cess of establishing the facts, including the assessment of the evidence, are not the only factors. as such,
101
however, the Convention has no influence. It is also permissible to disregard material that is otherwise relevant
because of procedural errors by a party, for example due to a period of preclusion.
86

MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1387; Supermicro Computer Inc. v. Digitechnic, S. A., U. S. Dist. Ct. (N. D. Cal.) 30.1.2001,
CISG-online 612 = 145 F. 2d 1147, 1151; BGer 5.4.2005, CISG-online 1012 E. 3.2.
87 So MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-
online 342 = 144 F. 3d 1384, 1388.
88 Above → para. 10 .
89 AA Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 5 ( paragraph 3 serves only to determine the required level of care in para‐
graph 1 ). Paragraph 3 refers precisely to the will and is at best unsuccessful insofar as this is not explicitly used to
specify the “could not have been unaware”.
90 Below → paras. 31 – 35 .
91 Below → para. 44 .
92 Below → para. 45 ff.
93 Below → para. 50 ff.
94 See Art. 4.3 PICC and Art. 5 :102 PECL .
95 Bianca/Bonell/ Farnsworth Art. 8 note 2.6.; Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 para. 25 ; Staudinger/
Magnus CISG Art. 8 para. 24; Witz/Salger/Lorenz/ W. Witz Art. 8 para. 11 ; cf. Comment 1 to Art. 4.3 PICC; Comment
to Art. 5 :102 PECL .
96 Staudinger/ Magnus CISG Art. 8 Rn. 2.
97 Staudinger/ Magnus CISG Art. 8 para. 23. See below → para. 35 (merger clauses), 32 f. (parol evidence rule).
98 This approach consists in identifying comparable facts, examining them and – in extreme cases – determining the
authoritative interpretation based on the majority results in the comparable cases. See, for example, Ben-
Shahar/Strahilevitz , Interpreting Contracts via Surveys and Experiments, or Benoliel 69 Ala. L. Rev. (2017), 469 (with
particular attention to merger clauses, see below → para. 35 ).
99 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 11 ; Schwenzer/Hachem/Kee , Rn. 26.16.
100 Retrieved 16 July 2012, CISG-online 2371 Nr. 3.4.
101 On the question of the standard of proof, see Federal Court of Justice 16 July 2012, CISG-online 2371 No. 5.2 (ex‐
pressly leaving open the relationship to national procedural law).

2. Knowledge or attributable lack of knowledge of the recipient of the declaration

The question of whether the recipient of the declaration is aware or attributable to lack of awareness is preceded
by another, namely whose knowledge is to be taken into account. This is particularly important when distinguishing
the contracting parties from intermediaries, such as commodity brokers. The decisive factor here is the addressee
102
of the declaration specified by the person making the declaration. If the latter does not recognise his status as
the addressee and was not required to do so, the application of Article 8 (1 ) is ruled out, at least with regard to the
determination of the contracting parties. However, the application of paragraph 1 may also be considered in this
casefor the determination of the remaining content of the contract

Apart from the interpretative material mentioned above, the Convention naturally contains no rule as to when the
recipient of the declaration had positive knowledge of the will of the person making the declaration. To the extent
that this is expressly assumed in individual decisions, it is not easy to say whether the wording of the judgment
may simply conceal a breach of due diligence on the part of the recipient of the declaration: This applies, for
103
example, to the assumed knowledge of the meaning of a distribution restriction in one case, the explicit conclu‐
sion from the buyer's knowledge of the intended use to knowledge of the intention for the corresponding suitability
104
or the proven knowledge of a Belgian entrepreneur of the standard conditions of the Swiss Mechanical Engi‐
105
neering Industry Association.

As a standard of attributable ignorance, Article 8 I contains the formula “could not have been unaware”, which is
used in other places in the Convention ( Articles 35 III , 40 , 42 I , II lit. a) and has also been incorporated into the in‐
terpretative provisions of further steps towards international legal unification ( Article 4.2 I PICC; Article 5 :101 II
PECL ). Usually, this is understood to mean – in contrast to the formulation “ ought to have known”, which can also
106 107
be found. – an increased degree of negligence is understood, which in German-language literature is regu‐
108
larly equated with gross negligence. Better than this reference to national terminology is, however, the simple
109
formulation that the will was particularly easy to recognize and that a further inquiry was simply necessary. To
the extent that this connection to the care of the recipient of the declaration is seen as a functional equivalent to
110
the doctrine of the recipient’s horizon, , it must be noted that Article 8 (1) can at best be concerned with a sub‐
111
jective recipient’s horizon.

When specifying the standard within the framework of Article 8 I, it should be noted that in practice this is rarely re‐
112
levant: The examination of the increased lack of care is only of interest if the intention of the person making the
declaration does not already correspond to the interpretation according to paragraph 2 , i.e. if it does not corre‐
spond to the understanding of a reasonable person in the shoes of the person receiving the declaration. This app‐
113
lies in particular to the case dealt with in case law where the wording of the declaration is unambiguous, in
which the correct core of the – traditional andinapplicable under the Convention already because of paragraph 3
114 115
– The interpretation of the rule in the clear does not become relatively der plain meaning rule widerspiegelt.
Paragraph 1 also becomes relevantin the case of a special understanding previously clarified between the parties
116
which deliberately deviates from a reasonable understanding. However, a particular breach of duty of care wit‐
hin the meaning of paragraph 1 that exceeds the standard of paragraph 2 may arise in individual cases, for
117
example, from the use of an employee who does not speak the language, from the special expertise of the reci‐
118
pient of the declaration or from his familiar legal environment result.

The decisive point in time for knowledge and its equivalent is controversial : the most common point in time is the
119
time of declaration, whereas, according to an opposing view, the decisive factor is the date on which the decla‐
120
ration takes effect. The main issue in this case is the assessment of subsequent knowledge gains by the recipi‐
ent of the declaration and its temporal relationship to the effects of the declaration. However, this factual question
cannot be decided conclusively: if, for example, the recipient gains knowledge before the binding nature of the of‐
fer under Article 16 occurs , this must be taken into account. If the contract is declared to be rescinded and this
was not initially clear enough, subsequent knowledge gained by the party against whom the contract is rescinded
will not lead to retroactive rescission.
102 OGH 18.6.1997, CISG-online 292; Staudinger/ Magnus CISG Art. 8 Rn. 11.
103 CA Grenoble 22.2.1995, CISG-online 151 (distribution of the clothing sold only in South America).
104 CA Grenoble 13.9.1995, CISG-online 157.
105 Trib. com. Nivelles (Belgium) 19.9.1995, CISG-online 366.
106 Artt. 2 lit. a, 9 II, 38 III, 49 II lit. b i, 64 II lit. b i, 68 III, 74 S. 2, 79 IV 2. Entsprechend Art. 39 I sowie 82 II lit. c („ought to
have discovered“), Art. 43 I („ought to have become aware of“) und 74 S. 2 („ought to have foreseen“).
107 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 5 .
108 Honsell/ Melis Art. 8 Rn. 6 ; Staudinger/ Magnus CISG Art. 8 Rn. 12. Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 5 , which
are rightly critical .
109 LG Kassel 15.2.1996 , CISG-online 190; Bamberger/Roth/ Saenger CISG Art. 8 Rn. 2 ; Staudinger/ Magnus CISG Art. 8
Rn. 12; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 5 .
110 Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 Rn. 4; Bamberger/Roth/ Saenger CISG Art. 8 Rn. 2 ; Staudinger/ Magnus
CISG Art. 8 Rn. 11.
111 LG Hamburg 26.9.1990 , CISG-online 21; Schlechtriem/ Junge , 3rd edition 2000, Art. 8 Rn. 5. Too undifferentiated the‐
refore LG Oldenburg 28.2.1996 , CISG-online 189 and OLG Schleswig 29.10.2002 , CISG-online 717.
112 Doctor RabelsZ 68 (2004), 430 ( 434 ).

V. Interpretation according to reasonable understanding ( Art. 8 II )

121
The formally subordinate Article 8 (2) contains the practical core of interpretation under the Convention: state‐
ments are to be interpreted as they would have been understood by a reasonable person in the shoes of the ad‐
dressee . The decisive factor is therefore the hypothetical understanding of a reasonable person of the same kind
122
who – it should be added – finds himself in the same external situation. Article 8 (2) therefore focuses from the
123, 124
outset on the recipient’s horizon, in contrast to paragraph 1 , however, focuses on the objective. The provi‐
125
sion thus protects the principle of trust . This standard can lead to disagreement in the case of differences in
126
meaning between the spheres of contracting parties, This, however, cannot be avoided by restricting the scope
127
of application of Article 8 (2) to the first declaration in the case of two identical declarations. The Convention
does not indicate the possibility of such a restriction. Whether the treaty fails in such cases because of the diffe‐
rent understandings is decided rather – apart from the obligation to ask questions and provide clarification, which
must be examined as a matter of priority – according to the standard of Article 19 .

In determining the hypothetical recipient’s understanding, the aspects mentioned in Article 8 III must again be ta‐
128
ken into account. This dual application of the criteria in paragraph 3 to establish the actual intention of the per‐
son making the declaration on the one hand and to determine the hypothetical understanding of the recipient on
the other has undoubtedly contributed to the fact that paragraphs 1 and 2 are often not distinguished. In addition
to the aspects mentioned in paragraph 3 , paragraph 2 also containsthe reference to the need to refer to an expert
129 130
in the relevant sector. In addition, particular importance is again attached to the wording of the declaration.
121 AppGer Basel-Stadt 26.9.2008, CISG-online 1732 No. 4.2; Staudinger/ Magnus CISG Art. 8 Rn. 17.
122 Bianca/Bonell/ Farnsworth Art. 8 note 2.4.; Honnold/Fletchner Art. 8 para. 107.1; Staudinger/ Magnus CISG Art. 8
para. 17. See also the Swiss version: “in the same position”.
123 HGer Aargau 5.2.2008, CISG-online 1740 No. 3.1.2; Bamberger/Roth/ Saenger CISG Art. 8 Rn. 3 ;
Schlechtriem/Schroeter , International UN Sales Law, Rn. 215; Staudinger/ Magnus CISG Art. 8 Rn. 17;
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 7 .
124 LG Hamburg 26.9.1990 , CISG-online 21; Schlechtriem/ Junge , 3rd edition 2000, Art. 8 Rn. 7; Ferrari IHR 2003, 10 (13);
Soergel/ Lüderitz/Fenge CISG Art. 8 Rn. 5. A subjective understanding of Art. 8 II can be found, however, in OLG
Hamm 22.9.1992 , CISG-online 57. On the difficulties of Ibero-American legal systems with this rule, see Schwenzer/E.
Muñoz/ E. Muñoz Sec. Comp. Arts. 7–13 Rn. 4, 8.
125 AppGer Lugano 29.10.2003, CISG-online 912 Nr. 3.2; KG Freiburg 11.10.2004, CISG-online 964; HG St. Gallen
14.6.2012, CISG-online 2468 Nr. III. 4. a).
126 Bianca/Bonell/ Farnsworth Art. 8 note 3.2.; Heuzé , note 235. In this respect also correct Witz/Salger/Lorenz/ W. Witz
Art. 8 Rn. 8 .
127 But see Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 8 .

VI. Determination of the contract content

1. Steps in determining the content of the contract (para. 21)

2. Determinable common will of the parties and recognizable will of one party (paras. 22, 23)

3. Objective third parties (para. 24)

4. Judicial contract supplement (paras. 25-27)

1. Steps in determining the content of the contract

When applying Article 8 to the interpretation of concluded contracts, some modifications and shifts in emphasis
131
occur: the starting point is always the sufficient consensus of the parties. Based on this, the order of prece‐
132
dence established by Article 8 also applies to the interpretation of contracts: According to Article 8 I Alt. 1,the
primary determining factor here is also the will of the parties, albeit in the form of a common intention of the par‐
133
ties. If only the will of one party can be ascertained, it is sufficient, according to Article 8 (1) alternative 2, that
134
the other party could not have failed to recognise it. Furthermore, recourse must then be had to the hypothetical
135
understanding of reasonable persons of the same kind ( Art. 8 II ) and, in addition, judicial supplementation to
136
the contract may also be possible under the Convention. The provisions of the Convention then only intervene
as a subsidiary measure (principle of subsidiarity of the Convention). The same applies, in accordance with the
hierarchy governed by Articles 4 and 7 (II) , to the filling of gaps through general principles of the Convention and
through the application of national law.
131 Above → para. 4 .
132 Ferrari IHR 2003, 10 (11); Staudinger/ Magnus CISG Art. 8 Rn. 7; s. also ICC 8324/1995 , CISG-online 569 (three-stage
system); OGer Zug 8.11.2011, CISG-online 2425 Nr. 3.1.
133 This is expressly stated by Federal Court of April 5, 2005, CISG-online 1012 E. 3.2 and AppGer Basel-Stadt September
26, 2008, CISG-online 1732 No. 4.2; Higher Regional Court of Zurich June 25, 2010, CISG-online 2161 No. 4.2.6; Higher
Regional Court of Zurich September 17, 2014, CISG-online 2656 No. IV. 1.4.; also Art. 4.1 I PICC; Art. 5 :101 I PECL .
The agreement of wills therefore replaces the knowledge of the other party otherwise required under Art. 8 I Alt. 1.

134 Art. 5 :101 II PECL ; cf. Art. 4.2 II PICC.

135 Art. 4.1 II PICC; Art. 5 :101 III PECL .
136 ICC 8324/1995 , CISG-online 569 (“the usual reasoning techniques which fall within the scope of general logic [reaso‐
ning by analogy, a contrario, etc.]”); vgl. Artt. 4.8, 5.2 PICC; Art. 6 :102 PECL .

2. Determinable common will of the parties and recognizable will of one part
As generally stated in Article 8 (1), the practical significance of the common intention of the parties should not be
137
overestimated, if only because of the difficulties of proof. At least its priority has the consequence that a falsa
138
demonstratio does no harm. The case material on this point is, however, rather sparse: for example, the unilate‐
ral regulation in a preliminary calculation was not considered sufficient to establish a common will of the parties.
139 140
An established common understanding of free and franco clauses may replace the usual meaning. Finally,
141
the common intention can even override Article 19 (3) .
142
The common intention is equivalent to the unmistakable will of one party. The explicit inclusion of this rule –
143
corresponding to Article 8 (1) (2) – had been envisaged at some point when the Convention was drawn up. This
144
is again a reflection of the legally prescribed priority of the will of the parties. In interpretative practice, this con‐

stellation is more likely to be encountered because it eliminates the difficult task of establishing the will of a se‐
cond party for the deciding court.
137 Comment 1 to Art. 4.1 PICC.

138 OLG Munich 16.8.2017 , CISG-online 2900; Schwenzer/Hachem/Kee , para. 17.37; Bamberger/Roth/ Saenger CISG
Art. 8 para. 2 ; Soergel/ Lüderitz/Fenge CISG Art. 8 para. 4; Staudinger/ Magnus CISG Art. 8 para. 16;
Witz/Salger/Lorenz/ W. Witz Art. 8 para. 6 ; Comment 1 to Art. 4.1 PICC; Comment B to Art. 5 :101 PECL . The wording
should therefore not be given too much focus, cf. OGer Zug 8.11.2011, CISG-online 2425 no. 3.3.2.
139 RB Hasselt 18.10.1995, CISG-online 364 (exclusion of the CISG).
140 BGH 11.12.1996, CISG-online 225.
141 OGH 20.3.1997, CISG-online 269.
142 BGer 5.4.2005, CISG-online 1012 E. 3.3.
143 Art. 3 II UNIDROIT draft for contract conclusion.
144 Heuzé , Anm. 235.; Comment C zu Art. 5 :101 PECL .

3. Objective third parties

The practical rule for interpreting a contract is again to base it on the hypothetical understanding of a reasonable
third party; this determines the procedural starting point. The figure of the reasonable business participant is de‐
145
cisive in transactions of the same type. This open reference to reasonableness avoids the otherwise inevitable
146
temptation of the courts to feign an actual will of the parties. The actual intention of the parties can therefore
147
serve as a limit for interpretation. However, for certain provisions, subjective agreement is sometimes conside‐
148
red indispensable; this has been decided in particular for the tacit exclusion of the Convention.
145 Arbitration Act of the Agricultural Products Exchange in Vienna 10.12.1997, CISG-online 351; BGer 4.8.2003, CISG-on‐
line 804 E. 4.3; BGer 5.4.2005, CISG-online 1012 E. 3.3; Ferrari IHR 2003, 10 (13); Staudinger/ Magnus CISG Art. 8 Rn.
17.
146 Comment D to Art. 5 :101 PECL ; cf. Arbitration Act of the Agricultural Products Exchange in Vienna 10.12.1997, CISG-
online 351.
147 Comment D to Art. 5 :101 PECL .
148 RB Hasselt 18.10.1995, CISG-online 364; in substance also Magnus ZEuP 2002, 523 ( 530 ). See also Neumayer/Ming
Art. 6 note 3.

4. Judicial contract supplement

More recent projects for legal unification now regularly provide, in addition to the rules of contract interpretation,
special provisions for the supplementation of contracts by the judge, which - although standards differ in some
149
areas - make use of the Anglo-American concept of implied terms . Neither this nor the continental tradition of
‘supplementary interpretation of treaties’ or the clause tacite have been expressly adopted in the Convention; in li‐
terature and case law there are always voices that reject judicial supplementation of treaties under the Convention
150 151
at all. and wish to apply the relevant national rules of the Treaty supplement. Sometimes it is even argued
that recourse to such instruments is unnecessary because corresponding practices and customs have developed
in international trade in goods and are already reflected in the interpretation of contracts; in addition, sufficient pro‐
152
vision has been made in model contracts. However, the impression given by the case law to date does not sug‐
gest that the Convention applies primarily to such well-organised markets. The conclusion, which could also be
drawn from the existing special rules in the Unidroit Principles and the European Principles, that there are no corre‐
sponding rules under the Convention would neglect the fact that they came into being much later.

In fact, the Convention opens up the possibility of judicial supplementation of the treaty in individual cases and in
153
this respect displaces the relevant national mechanisms. This is clear from its overall picture: According to Arti‐
154
cle 35 (2), the Convention is wellof the concept of the implication of terms , and the Swiss Federal Court has
155
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spoken – functionally correctly – of objective interpretationwith regard to both Articles 8 and 35 . Article 9 (2)
156
also makes useof the technique of implication . Article 35 specifies the other two provisions. The Convention
157
therefore recognises the possibility of supplementing a contract independently of the will of the parties; Only
158
their limits are questionable. The supplementation by dispositive law is initially unproblematic (cf. Art. 6 ). and
159
by customs and traditions ( Article 9 ). It is also possible for the (arbitration) tribunal to be explicitly empowered
160
to supplement the contract ex aequo et bono by agreement between the parties. As Art. 7 II shows, in the case
of internal gaps, the rules developed from the general principles of the Convention supplement the respective con‐
tract. In view of Art. 6 and 8 I, it can therefore be assumed that the courts are in principle able to supplement the
contract in line with the individual contract . Insofar as the limits of Art. 8 II are exceeded in concrete terms , this re‐
sultsfrom a general principle of the Convention, which is reflected above all in Art. 6 , 7 , 8 , 9 and 35 II and is also
161
helpfully recorded in Art. 4.8 and 5.2 PICC. Finally, the control of individual contract supplementation by the
Convention is also necessary with regard to the uniformity of its interpretation ( Article 7 (1 )): since the limits of
the so-called objective interpretation to judicial contract supplementation cannot be determined with sufficient pre‐
162
cision, there would otherwise be a risk of diverging interpretations of Article 8 .
The contract supplement is particularly necessary if the parties' intentions are otherwise in danger of being defea‐
163 164
ted. With regard to Article 8 (2), this must be based in particular on the hypothetical will of the parties: The
determination of the content is already hypothetical when Art. 8 II is simply applied to individual declarations; when
it comes to determining the content of the contract, the hypothetical understanding is opposed to its hypothetical
165 166
approval. The criterion of reasonableness does not play an independent role. In any case, the established
167
will of the parties constitutes an insurmountable limit to the supplementation of the contract. It is still unclear
whether there is a general obligation under the Convention to protect the interests of the contracting party in the
168
performance of the contract.
149 See Articles 4.8, 5.2 PICC, Article 6 :102 PECL and Comment A to Article 5 :101 PECL . For the concept in English law,
see Schmidt-Kessel ZVerglRW 96 (1997), 101 (133).
150 Arbitration Act of the Agricultural Products Exchange in Vienna, 10.12.1997, CISG-online 351; Schlechtriem/ Junge ,
3rd edition 2000, Art. 8 Rn. 3; Najork , p. 61 f.
151 Arbitration Act of the Agricultural Products Exchange in Vienna, 10.12.1997, CISG-online 351.
152 See in particular Schlechtriem/ Junge , 3rd edition 2000, Art. 8 para. 3.
153 Already above → para. 11 (with references) and footnote 146.
154 AP Madrid 20.2.2007, CISG-online 1637; as here also Schwenzer/Hachem/Kee , paras. 26.4, 26.71.
155 BGer 22.12.2000, CISG-online 628.
156 Najork , p. 46 f.; below → Art. 9 Rn. 2 , 12 .
157 OLG Cologne 2.7.2007 , CISG-online 1811 Rn. 28; Brunner/ Hurni Art. 8 Rn. 22 ; Kröll/Mistelis/Perales Viscasillas
CISG/ Zuppi Art. 8 Rn. 29 ; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 3 .
158 New York , p. 44. Cf. Comment 2 to Art. 4.8 PICC.
159 See Articles 1.8, 5.2 lit. b PICC; in this sense also Commentary on Article 5 :102 PECL .
160 Najork, S. 44.
161 Najork (p. 61 f.) comes to the opposite conclusion ; the reason for this is that he does not examine a general principle
of judicial contract supplementation, but only two – in fact irrelevant – standards of the same (good faith and reason‐
ableness ).
162 See only the extremely problematic decision of the Arbitration Court of the Agricultural Products Exchange in Vienna
of 10.12.1997, CISG-online 351.
163 As here also Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 Rn. 29 (efficiency of the contract). See Baldus , p.
135.
164 Comment C to Art. 6 :102 PECL . In contrast, Schlechtriem/ Junge , 3rd edition 2000, Art. 8 para. 3 and Ferrari IHR
2003, 10 (11 f.) (each without justification). See Art. 4.8 II lit. a PICC; 6:102 lit. a PECL .
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165 See Articles 4.8 II lit. d, 5.2 lit. d PICC and the critical comments by Najork , pp. 56–60.
166 Regarding good faith and fair dealing and Art. 7 I see below → para. 30 (good faith is not a general guideline for inter‐
pretation) and Najork , pp. 52–56, which is to be agreed with in this respect. See also Art. 4.8 II lit. c, 5.2 lit. c PICC;
Art. 5 :102 lit. g, 6:102 lit. c PECL.
167 Staudinger/ Magnus CISG Art. 9 para. 17 (for commercial practices). See Art. 4.8 II lit. a PICC; 6:102 lit. a PECL .
168 OLG Cologne 2.7.2007 , CISG-online 1811 para. 28 ff. ( in any case, in concreto no breach of duty).

VII. Specific questions of interpretation

1. Alignment with the subject matter of the contract (para. 28)

2. Interpretation of the contract as a whole (para. 29)

3. Good faith as a guideline for interpretation (para. 30)

4. Consideration of the negotiations and the circumstances of the conclusion of the contract (paras. 31-35b)

a) General (para. 31)

b) Parol Evidence Rule and presumption of correctness and completeness (paras. 32-34)

c) Treatment of merger clauses (paras. 35-35b)

5. Silence and obligation to ask questions (paras. 36-38)

6. Foreseeability and recognizability as circumstances (para. 39)

7. Usual meaning of the word (para. 40, 40a)

8. Language risks (paras. 41-43)

9. Practices (para. 44)

10. Customs (paras. 45, 46)

11. Contra proferentem (Rn. 47, 48)

12. Favor negotii and effectiveness-oriented interpretation (para. 49)

13. Subsequent conduct of the parties (paras. 50-51a)

14. Favor of the debtor (Rn. 51b)

1. Alignment with the subject matter of the contract

169
The interpretation of a contract and the declarations relating to it must be based on its subject matter. The Con‐
vention is of course primarily concerned with the classic contractual obligations of delivery of proper goods, trans‐
fer of ownership and payment. To the extent that other obligations arise from a contract, the interpretation relating
to them must also be based on these. To the extent that the contract also obliges the buyer to provide services to a
certain extent (see Art. 3 ), these obligations can be classified as mere obligations of conduct ( obligations de mo‐
170 171
yens ). and thus a relief from liability even below the high requirements of Art. 79 .
169 Vgl. Artt. 4.3 lit. d, 4.8 II lit. b, 5.2 lit. a PICC; Artt. 5:102 lit. c, 6:102 lit. b PECL.
170 Comment A to Art. 5 :101 PECL ; Comment D to Art. 6 :102 PECL ; cf. Art. 5.4, 5.5 PICC.
171 The same applies to the special obligations under Articles 85 – 88 ; for both points see Schmidt-Kessel , Standards, p.
294.

2. Interpretation of the contract as a whole

172
The Convention requires that the treaty as a whole be considered when interpreting it. Individual provisions
must be regarded as an integral part of the contract; they must be considered in the context of the contract as a
173 174
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173 174
whole and not in isolation. This also includes taking into account the interests of the parties. In principle,
175
there is no hierarchy of contractual clauses, such as their order; Deviations from this justify the explicitly agreed
176 177
hierarchy, the priority of individual agreements over general terms and conditions, the restrictive interpreta‐
178 179
tion of exceptions and, in certain circumstances, the precedence of a more specific provision. Particular im‐
portance is also attached to the preamble and any definitional provisions; the latter partly corresponds to the pre‐
180
sumption of uniform terminology in the Treaty. The requirement to interpret the contract as a whole may also
181,
apply to groups of contracts, for example, on a framework agreement and the associated execution transac‐
182
tions or to a series of contracts.
172 Arbitration Act Russ. IHK 27.5.2005, CISG-online 1456 No. 3.3.3; Brunner/ Hurni Art. 8 Rn. 14 ; Nabati Rev. Dr. unif.
2007, 247 (254); Schwenzer/Hachem/Kee , Rn. 26.25; cf. Art. 4.4 PICC, Art. 5 :105 PECL ; Tjittes R. M. Themis 2005, 2
(16).
173 Comment 1 to Art. 4.2 PICC; Comment to Art. 5 :105 PECL . In substance also BGH 3.4.1996 , CISG-online 135 and
CIETAC 7.12.2005, CISG Online 1445. Exemplarily presented at BGH 28.5.2014 , CISG-online 2513 para. 17 et seq. See
HGer Zurich 30.11.1998, CISG-online 415.
174 OLG Dresden December 27, 1999 , CISG online 511.
175 Comment 2 to Art. 4.4 PICC; Comment on Art. 5 :105 PECL .
176 Comment 2 to Art. 4.4 PICC.
177 Below → para. 58 .
178 Vgl. Baldus, S. 120 f.
179 Cf. Comment 2 to Art. 4.4 PICC; Baldus , p. 127.
180 According to Comment 2 to Art. 4.4 PICC; Comment to Art. 5 :105 PECL .
181 Comment on Art. 5 :105 PECL .
182 OLG Hamburg 5.10.1998 , CISG-online 473 (choice of law); Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 Rn. 2; Comment
on Art. 5 :105 PECL . See below → Rn. 44 .

3. Good faith as a guideline for interpretation

The assumption that good faith provides a general guideline for the interpretation of contracts is problematic. Alt‐
hough Article 8 , unlike Article 7 I , makes no reference to this principle, such a guideline is often explicitly advoca‐
183
ted. This is, of course, not to be agreed with. The Convention deliberately did not give any scope to the principle
of good faith beyondArticle 7 I , but contented itself with adopting partial functional equivalents – with regard to in‐
terpretation, in particular the so-called objective interpretation of the treaty and the supplementation of the treaty.
184 185
In particular, the Convention does not allow for a review of content to be based on good faith and Article 8 .
186
The reduction of a contractual penalty for reasons of equity cannot be based on Article 8 either .
183 Civ. 1 30.6.2004, CISG-online 870 (critical of this Remy-Corlay RTDciv 2005, 354 (355)); OGer Zug 5.7.2005, CISG-on‐
line 1155; OGer Thurgau 19.12.1995, CISG-online 496; Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 Rn. 9; Brunner/ Hurni
Art. 8 Rn. 15 ; Staudinger/ Magnus CISG Art. 8 Rn. 10. More reserved Schlechtriem/Schroeter , Internationales UN-
Kaufrecht, Rn. 215.
184 In addition, the work of Najork (also on the location of further functions).
185 See below → Art. 9 paras. 5 and 20 .
186 So Gerechtshof Arnhem 22.8.1995, CISG-online 317, which rightly resolves this question according to national law.

4. Consideration of the negotiations and the circumstances of the conclusion of the contract

a) General (para. 31)

b) Parol Evidence Rule and presumption of correctness and completeness (paras. 32-34)

c) Treatment of merger clauses (paras. 35-35b)

a) General
The circumstances referred to in Article 8 (III) which must be taken into account in determining the intention of the
parties ( paragraph 1 ) and in determining the hypothetical understanding of the recipient ( paragraph 2 ) also in‐
187
clude the negotiations and the circumstances of the conclusion of the contract. These play a special role be‐
cause they enable the meaning and purpose of the declarations to be inferred and, where appropriate, why the sub‐
188
sequent dispute did not become the subject of an express contractual arrangement. In this way, the meaning of
189
unclear currency information (e.g. dollars in contacts with Canada or Australia) can be clarified. Even when ex‐
amining the contract for the agreement on retention of title, the agreement of which played a role in the negotiati‐
190,
ons again and again, recourse to this material can help.
187 Cf. Art. 4.3 litres. a PICC; Art. 5 :102 lit. and PECL
188 OGer Zug 8.11.2011, CISG-online 2425 No. 3.1.
189 Illustration 2 to Art. 4.3 PICC.
190 Roder Zelt- und Hallenkonstruktionen GmbH v. Rosedown Park Pty Ltd. , FCA 28.4.1995, CISG-online 218.

191
b) Parol Evidence Rule and presumption of correctness and completeness
The reference to the negotiations and other circumstances relevant at the time of conclusion of the contract is im‐
192
portant, particularly with regard to the parol evidence rule as it is known in many Anglo-American legal systems.
This involves two substantive issues, namely, firstly, the provability – and thus functionally: relevance – of oral side
agreements and, secondly, the use of further interpretative material to clarify the content of a written contract. The
two points cannot, of course, be completely separated from one another; the Convention deals with them – even if
193 194
not explicitly Accordingly, no parol evidence rule applies under the UN Convention on Con‐
– in Artt. 8 , 11 .
195
tracts for the International Sale of Goods: First, Article 8 (3) is incompatible with a general exclusion of the in‐
196 197
terpretative material referred to therein; of the general insignificance of oral side agreements is also Art. 11 .
198
Furthermore, the parties are in principle free to submit witness evidence that they did not wish to be bound by
199 200
certain clauses of the written contract. The occasionally expressed opposing view would jeopardise the uni‐
201
formity of the interpretation of the Convention. Nor can it be justified by reference to the recipient's horizon of
the other party, which is also shaped by the other circumstances mentioned in paragraph 3 .

The parol evidence rule is functionally a substantive law rule which a national court cannot apply as part of its pro‐
202
cedural law, which in principle has unlimited application; Nevertheless, it still shapes the litigation behavior of
203 204
US parties and, where appropriate, the allocation of tasks between judge and jury. There is no legitimate ex‐
205
pectation in the applicability of domestic legal rules in this respect, However, the Convention does not claim to
206
influence the procedural allocation of tasks.

In the same way, Articles 8 and 11 provide corresponding instruments of other legal systems such as the German
207
presumption of correctness and completeness or the rebuttable presumption of the parol evidence rule accord‐
208
ing to the English understanding comes into question. As a legal rule, this could only be maintained within the
scope of the Convention insofar as it is reflected in Article 8. The rebuttability of the presumption speaks in favour
of compatibility with the Convention, which therefore does not leave the other circumstances to be taken into ac‐
209
count under Article 8 III unquestioned. Nevertheless, such a privilege for written statements cannot be inferred
from Articles 8 and 11 ; the regulatory purpose of these provisions is contradicted by any formal strengthening of
210
the gap in evidence which already exists in fact. It would be conceivable, and in case of doubt should be verified
in reality, to assume a corresponding commercial practice whichwould be capable of overriding the basic rules of
211
Articles 8 and 11 . . In view of the extent of the actual evidence gap, it cannot be ruled out that the threshold of
Article 9 (2) will be overcome in this respect.
191 Central to this is CISG-AC, Op. 3 ( Hyland ). For the expansion of the interpretative material in English law under the in‐
fluence of the CISG, see Rugby Group Ltd. v. ProForce Recruit Ltd. [2006], EWCA Civ 69 (C. A.) 17.2.2006, CISG-online
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1424 and The Square Mile Partnership Ltd. v. Fitzmaurice McCall Ltd. (C. A.) 18.12.2006, CISG-online 1423 para. 61 et
seq. (per L. J. Arden ).
192 See in particular § 2 – 202 UCC; see the comparative legal presentations in Baumann , pp. 88–98, Kaufmann , pp. 23–
145 and Schwenzer/Hachem/Kee , paras. 26.28, 26.45 ff. For a US perspective, see Benoliel 69 Ala. L. Rev. (2017),
469 (472–477).
193 MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1389; Honnold/Fletchner Art. 8 Rn. 110.
194 See accordingly below → Art. 11 para. 13 .
195 Filanto, S. p. A. v. Chilewich Intern. Corp., U. S. Dist. Ct. (S. D. N. Y.) 14.4.1992, CISG-online 45 = 789 F. 1229, 1238 Fn. 7;
Calzaturifico Claudia v. Olivieri Footwear Ltd., U. S. Dist. Ct. (S. D. N. Y.) 6.4.1998, CISG-online 440 = 1998 WL 164824;
MCC – Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1389 f.; Mitchell Aircraft Sparse Inc. v. European Aircraft Service AB, U. S. Dist. Ct. (N. D. Ill.)
28.10.1998, CISG-online 444 = 23 F. 2d 915, 920; TeeVee Tunes, Inc. v. Gerhard Schubert GmbH, U. S. Dist. Ct. (S. D. N.
Y.) 12.8.2006, CISG-online 1272; Miami Valley Paper, LLC v. Lebbing Eng’g GmbH, U. S. Dist. Ct. (S. D. Ohio) 26.3.2009,
CISG-online 1880; ECEM European Chemical Marketing B. V. v. The Purolite Company, U. S. Dist. Ct. (E. D. Pen.)
29.1.2010, CISG-online 2090; Andreason 1999 B. Y. U. L. Rev., 351 (364 ff.); L. F. Del Duca 25 J. L. & Com. (2005-06),
133 (136, 142 ff.); Honold/Fletchner Art. 8 Rn. 110; Soergel/Lüderitz/Fenge CISG Art. 8 Rn. 8; Staudinger/Magnus
CISG Art. 8 Rn. 23; Witz/Salger/Lorenz/W. Witz Art. 8 Rn. 1. Gegen eine Rezeption dieser Regel durch das autonome
neuseeländische Recht wegen Bindung an den Privy Council Hideo Yoshimoto v. Canterbury Golf International Ltd.
27.11.2000, CISG-online 1078 Nr. 88 ff.
196 Filanto, S.p. A.v. Chilewich Int. Corp. , U.S. Dist. Ct. (S. D. N. Y.) April 14, 1992, CISG-online 45 = 789 F. 1229, 1238 note
7; MCC Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A. , U. S. Ct. app. (11th Cir.) June 29, 1998,
CISG-online 342 = 144 F. 3d 1384, 1389 f.; Mitchell Aircraft Spares Inc. v. European Aircraft Service AB , U.S. Dist. Ct.
(N. D. Ill.) 28.10.1998, CISG-online 444 = 23 F. 2d 915, 920 f.; Schwenzer/Hachem/Kee , Rn. 26.50; Staudinger/ Ma‐
gnus CISG Art. 8 Rn. 23; therefore misleading Kaufmann , S . 272: “The CISG nowhere expressly deals with the admis‐
sibility of evidence external to the contract for the purpose of determining the content of the contract.”
197 For the relationship above → para. 13 .
198 Calzaturifico Claudia v. Olivieri Footwear Ltd., U. S. Dist. Ct. (S. D. N. Y.) 6.4.1998, CISG-online 440 = 1998 WL 164824;
MCC – Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1389.
199 ECEM European Chemical Marketing B. V. v. The Purolite Company, U. S. Dist. Ct. (E. D. Pen.) 29.1.2010, CISG-online
2090.
200 Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc., U. S. Ct. App. (5th Cir.) 15.6.1993,
CISG-online 89 = 993 F. 2d 1178, 1183; Moore 1995 B. Y. U. L. Rev., 1347 (1351). Die in diesem Punkt nicht begründete
Entscheidung Beijing Metals gilt als überholt: MCC – Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P.
A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-online 342 = 144 F. 3d 1384, 1390: „not particularly persuasive on this
point“ (zustimmend Mitchell Aircraft Spares Inc. v. European Aircraft Service AB, U. S. Dist. Ct. (N. D. Ill.) 28.10.1998,
CISG-online 444 = 23 F. 2d 915, 920); ECEM European Chemical Marketing B. V. v. The Purolite Company, U. S. Dist. Ct.
(E. D. Pen.) 29.1.2010, CISG-online 2090 Fn. 5: „not … particularly persuasive on this point“.
201 MCC – Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1391 (zustimmend zitiert von Zapata Hermanos Sucesores, S. A. v. Hearthside Baking Co.,
Inc., U. S. Dist. Ct. (N. D. Ill.) 28.8.2001, CISG-online 599 = 2001 WL 1000 927).
202 MCC – Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A. , U. S. Ct. App. (11th Cir.) June 29, 1998,
CISG-online 342 = 144 F. 3d 1384, 1389 with reference to Art. 11 .
203 Calzaturifico Claudia v. Olivieri Footwear Ltd., U. S. Dist. Ct. (S. D. N. Y.) 6.4.1998, CISG-online 440 = 1998 WL 164,
824.
204 CISG-AC, Op. 3 ( Hyland ) Comment 1.2.2; Flechtner 18 J. L. & Com. (1999), 259 (275).
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205 MCC – Marble Ceramic Center, Inc. v. Ceramica Nuova D’Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1391.
206 Flechtner 18 J. L. & Com. (1999), 259 (275).
207 Applied for example by OLG Hamm 22.9.1992 , CISG-online 57. S. Evidence of corresponding rules in Japan and Scan‐
dinavia in CISG-AC, Op. 3 ( Hyland ) Comment 1.2.8.
208 S. CISG-AC, Op. 3 (Hyland) Comment 1.2.4.
209 In this sense, for German law, see BGH 18.7.2002 , NJW 2002, 3254 .
210 Kaufmann , p. 294; In this sense also Flechtner 18 J. L. & Com. (1999), 259 (278 f.). For a "balance of evidence" in fa‐
vour of written statements in the sense of a rebuttable ( Art. 8 III ) presumption of completeness and correctness,
however, see Schlechtriem/Schwenzer/ Schlechtriem , 4th ed. 2004, Art. 11 para. 13 . See CISG-AC, Op. 3 ( Hyland )
Comment 2.7.
211 For the dispositive nature of the provisions on this point, see below → para. 35 .
212
c) Treatment of merger clauses
The requirement for comprehensive consideration of all available interpretative material in Article 8 (3) is disposi‐ 35
213 214
tive. The Convention therefore takes the agreement of merger clauses (also called “ four corner clause ”,
215 216 217 218
entire agreement clause or integration clause ) without further ado. Clauses of this type are inten‐
ded to reduce the contract to the contract document; the idea behind this is that the previous negotiations merge
into the written text. American voices recommend such clauses as compensation for the lack of the parol evi‐
219
dence rule . Because the parol evidence rule cannot be applied by the courts under the Convention, only such
220
an agreement can ensure that none of their previous correspondence is included in the written contract.
However, the acceptance of an implied merger clause by simple reference to a written contractual documentsa‐
221
tisfy the requirements of Article 8 (III) .
222 223
The validity of merger clauses is governed by Art. 4 S. 2 lit. a and is therefore not always guaranteed. In 35
224
some cases, the effective inclusion of such a clause is examined very thoroughly.

In individual cases, it must also be determined by interpretation whether such clauses merely eliminate oral side 35
agreements or whether they also preclude recourse to further interpretative material in addition to the contractual
225 226
document; The latter is overwhelmingly regarded as the norm. For example, the People's Supreme Court,
Appeal Division in Ho Chi Minh City refused to apply a clause for the interpretation of the contract which was con‐
tained in a subsequently opened letter of credit; it merely constituted an offer to conclude an amending contract.
227

212 To this CISG-AC, Op. 3 ( Hyland ).

213 Flechtner 18 J. L. & Com. (1999), 259 (275); Honsell/ Melis Art. 8 Rn. 4 ; Kaufmann , p. 298 f.; Schlechtriem , FS Krit‐
zer, 2008, 416 (420); Schwenzer/Hachem/Kee , Rn. 26.53; Soergel/ Lüderitz/Fenge CISG Art. 8 Rn. 9;
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 1 .
214 See TeeVee Tunes, Inc. v. Gerhard Schubert GmbH , U. S. Dist. Ct. (S. D. N. Y.) 12.8.2006, CISG-online 1272 with an
example from a CISG contract.
215 Oberst. VolksG Vietnam (Ho Chi Minh) 5.4.1996, CISG online 1081.
216 Rugby Group Ltd. v. ProForce Recruit Ltd. [2006], EWCA Civ 69 (C. A.) 17.2.2006, CISG-online 1424.
217 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 17 .
218 Incorrect Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 Rn. 26 : Paragraph 3 overcomes any merger clause .

219 J. Kim 12 N. Y. Int'l L. R. (1999), 105; Murray 8 J. L. & Com. (1988), 11 (at fn. 155). Andreason 1999 B. Y. U. L. Rev., 351
(370–372) is skeptical; for some recommended clauses see Kaufmann , pp. 299–302.
220 A. Müller , p. 178; Wallach 44 Mo. L. Rev. (1979), 677; Vogenauer/ Kleinheisterkamp Art 2.1.17 Rn. 1.
221 Flechtner 18 J. L. & Com. (1999), 259 (278); Schwenzer/Hachem/Kee , para. 26.53.

5. Silence and obligation to ask questions

The silence of a party is generally recognised under the Convention as a factor to be taken into account in the in‐
228
terpretation of the Convention . Although, according to the express provision of Article 18 I 2 , it is not sufficient
as a declaration of acceptance alone, it is – in conjunction with other circumstances – often classified by the
courts as consent, which is complemented by a duty to alert , an obligation of the party concerned to ask questi‐
229 230,
ons. This applies in particular to the intervention of corresponding customs and practices, for example, the
231
rules on commercial confirmation letters, and it applies in the sense of a last shot rule in many cases when the
232
contract is executed without objection to the last statement of the other party. There are numerous decisions to
this effect: for example, it is sometimes assumed that a jurisdiction agreement has been concluded by silence on a
233
‘pro forma’ invoice leading to the conclusion of the contract. If, in a long-term supply relationship, the supplier
demands a higher price from a certain point in time and the buyer accepts further deliveries without objection, this
234
canbe regarded as consent to the price increase under Article 8 (2) . Likewise, unconditional consent to a de‐
sign plan modified at the purchaser’s request may be interpreted as consent to the associated technical specifica‐
235
tions. The same applies to the unchallenged communication of the buyer's expectations regarding the perfor‐
236
mance of a machine sold. Finally, the uncontested cashing of a cheque drawn up in good faith for an amount
less than that owed and marked as a final payment may lead to the remission of the excess amount under Article
237 238
29 . As a rule, however, mere silence in response to an offer to amend the contract will not be sufficient.
239
In principle, the Convention allows for a tacit waiver of one’s own legal positions. According to the Federal
Court of Justice, the fact that negotiations on a claim for damages lasted several months suggests that the objec‐
240
tion of delay under Article 39 should be waived . Waiver is excluded in the case of rights which are unknown to
241
the person making the declaration and whose existence he does not expect. However, this is not the case if the
242
rights arise from fundamental rules of commercial transactions. Legal advice also speaks against the
243
claimant’s lack of knowledge.
244
The passivity of a party is repeatedly discussed from the point of view of an obligation to ask questions : This
245
was affirmed, for example, in cases of difficulties in understanding due to a lack of language skills. On the other
hand, the Federal Court of Justice considers it unreasonable for the recipient of the declaration to ask for clarifica‐
246
tion when referring to terms and conditions that were not sent. Finally, the acceptance of a late payment with a
247
discount without further inquiry has been regarded by the lower courts as consent.
228 Civ. 1 27.1.1998, CISG-online 309; OLG Jena 10.11.2010 , CISG-online 2216 Rn. 31; Schlechtriem/ Junge , 3rd ed.
2000, Art. 8 Rn. 10; Bamberger/Roth/ Saenger CISG Art. 8 Rn. 4 ; Staudinger/ Magnus CISG Art. 8 Rn. 27.
229 Filanto, S. p. A. v. Chilewich Intern. Corp. , U. S. Dist. Ct. (S. D. N. Y.) 14.4.1992, CISG-online 45 = 789 F. 1229, 1240; in
substance also LG Mönchengladbach 22.5.1992 , CISG-online 56; LG Augsburg 12.7.1994 , CISG-online 390; CA Gre‐
noble 26.4.1995, CISG-online 153. General information on the obligation to ask questions below → para. 38 .
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230 OLG Innsbruck 1.2.2005 , CISG-online 1130; below → paras. 44 – 46 and cf. below → Art. 9 para. 12 .
231 Below → Art. 9 paras. 22 – 24 .
232 In this sense, for example, Filanto, S. p. A. v. Chilewich Intern. Corp. , U. S. Dist. Ct. (S. D. N. Y.) 14.4.1992, CISG-online
45 = 789 F. 1229, 1240; BGer 5.4.2005, CISG-online 1012 E. 4.2, 4.3; Staudinger/ Magnus CISG Art. 8 Rn. 27. On the is‐
sue of conflicting general terms and conditions, see below Schroeter → Art. 19 Rn. 64 – 92 .
233 CNACom 14.10.1993, CISG-online 87.
234 CA Grenoble 26.4.1995, CISG-online 153.
235 Civ. 1 27.1.1998, CISG-online 309.
236 AppGer Basel-Stadt 26.9.2008, CISG-online 1732 No. 4.3.
237 LG Kassel 15.2.1996 , CISG-online 190.
238 OLG Jena 10.11.2010 , CISG-online 2216 Rn. 31 (subsequent inclusion of general terms and conditions).
239 See BGH 25.11.1998 , CISG-online 353 (on rights under Art. 39 ).
240 BGH 25.11.1998, CISG-online 353.
241 BGH 25.11.1998, CISG-online 353.
242 BGH 25.11.1998, CISG-online 353.
243 BGH 25.11.1998, CISG-online 353.
244 See Heuzé , note 235.; Soergel/ Lüderitz/Fenge CISG Art. 8 para. 5. In addition to the decisions mentioned below, see
also Filanto, S. p. A. v. Chilewich Intern. Corp. , U. S. Dist. Ct. (S. D. N. Y.) 14.4.1992, CISG-online 45 = 789 F. 1229,
1240.
245 OLG Hamm 8.2.1995 , CISG-online 141; Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 Rn. 4a; Staudinger/ Magnus CISG
Art. 8 Rn. 29.
246 BGH 31.10.2001 , CISG-online 617; see below → para. 54 .
247 LG Mönchengladbach 22.5.1992 , CISG-online 56.

6. Foreseeability and recognizability as circumstances

The interpretation also takes individual circumstances into account when it takes into account the predictability
and identifiability of certain risk situations. The idea behind this is that the person who foresaw or recognized cer‐
tain circumstances when concluding the contract also included these in his considerations. Ultimately, it is again a
question of assessing passivity : anyone who foresees or recognizes a circumstance and does not protect them‐
selves against it by agreement assumes the corresponding risk . By objectifying the interpretation, this considera‐
tion is also extended to the lack of care in ascertaining. A large number of corresponding considerations have
found their way into statutory provisions, which ultimately reveal themselves as rules of interpretation - which often
248
modify Article 8 . Thus, the significance of the disruption for the injured party under Article 25 also depends on
249
its foreseeability; In this respect, Article 25 aEestablishesburden of proof that differs from Article 8 I but corre‐
250
sponds to Article 8 II of the infringing part. Another example is the exclusion of the lack of conformity under
251
Art. 42 II lit. a, if the buyer could have recognized the existence of the protective right. Since 23 June 2016,
Brexit has been a foreseeable development, so that it can be assumed that the parties have assumed the associa‐
ted risks, unless the contract contains specific provisions in this regard.
248 In addition to the following provisions of the Convention mentioned above → para. 16 .
249 See OLG Frankfurt a. M. September 17, 1991 , CISG-online 28; LG Berlin September 30, 1992 , CISG online 70.
250 See below → para. 61 .
251 Cf. Civ. 1 19.3.2002, CISG-online 662.

7. Usual meaning of the word

In view of the objectivity provided for in Article 8 (3) and the standards of care on the part of the recipient pur‐ 40
252
suant to paragraph 2 , particular emphasis is placed on the usual meaning of the words used by the parties. A
253
presumption that the will of the parties corresponds to an interpretation according to Art. 8 II , is of course not
254 255
justified by this. The intended meaning of the word in the individual case takes precedence. However,
where reference is made to standard clauses or conditions, there is a presumption that the parties intended that
256 257
the usual interpretation of those clauses should prevail. An occasionally mentioned wording limit does not
exist – due to the possibility of judicial amendments to the contract and the priority of the parties’ will. A general
inferred from paragraph 258
priority of a “clear wording” Article 8 cannot be .
259
The usual meaning of the word is usually determined by the legal system whose language is used . This may 40
260
also include judicial and arbitral decisions on specific clauses or common interpretation rules such as
261.
Incoterms® 1990, 2000 or 2010 However, with the latter, it is always necessary to ask whether the respective
interpretations actually reflect the "usual" meaning. For example, free and franco clauses can also be understood
as pure cost clauses without any effect on the place of performance - in deviation from the understanding of
262
FCA, FAS and FOB according to Incoterms®. This is just one example of the considerable difficulties encoun‐
tered in applying the usual meaning of words when terms in one language have different meanings in different le‐
263
gal systems or markets. A wording customary between the parties will of course override an otherwise usual
264
meaning as well as usages within the meaning of Article 9 .
252 HGer Zurich 24.10.2003, CISG-online 857 (general linguistic understanding of the word exchange includes withdra‐
wal); Schlechtriem/ Junge , 3rd edition 2000, Art. 8 Rn. 8; Staudinger/ Magnus CISG Art. 9 Rn. 32. Critical Bonell JBl.
1985, 385 ( 391 f.). See Art. 9 III EKG; Art. 4.3 lit. e PICC; Art. 5 :102 lit. e PECL .
253 Dafür MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998,
CISG-online 342 = 144 F. 3d 1384, 1388.
254 Above → para. 10 .
255 Treibacher Industrie, A. G. v. Allegheny Technologies, Inc., U. S. Ct. App. (11th Cir.) 12.9.2006, CISG-online 1278.
256 See Staudinger/ Magnus CISG Art. 8 para. 20.
257 S. OLG Stuttgart 15.5.2006 , CISG-online 1414.
258 For this, see HGer Zurich 24.10.2003, CISG-online 857.
259 OLG Karlsruhe 20.11.1992 , CISG-online 54; cf. on German law Triebel/Balthasar NJW 2004, 2189 ( 2189 – 2196 )
(with many differentiations).
260 Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 Rn. 8; Comment on Art. 5 :102 PECL .
261 BGH 7.11.2012 , CISG-online 2374 Rn. 20, 22; Bianca/Bonell/ Farnsworth Art. 9 note 3.5.; Schlechtriem/ Junge , 3rd
edition 2000, Art. 8 Rn. 8. The question of binding the explanations of the Incoterms® is a different question (see be‐
low → Art. 9 Rn. 26 ), which is admittedly not always sufficiently distinguished from the use for interpretation: see
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 11 .
262 BGH 11.12.1996 , CISG-online 225. See also OLG Karlsruhe 20.11.1992 , CISG-online 54 (“free house, duty paid, tax un‐
paid” as a regulation of risk); OGH 10.9.1998, CISG-online 409 (“free house” usually delivery clause).
263 Bianca/Bonell/ Farnsworth Art. 9 note 3.5.; Honnold/Fletchner Art. 8 Rn. 107.1 (he mentions warranty, condition, disc‐
laimer, trust); Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 10 .
264 Treibacher Industrie, A. G. v. Allegheny Technologies, Inc., U. S. Ct. App. (11th Cir.) 12.9.2006, CISG-online 1278.

8. Language risks
A particular problem in international legal transactions is the allocation of risks arising from the use of different 4
265
languages. According to the assessments of Article 8 , the risk of incorrect wording of the declaration is al‐
ways borne by the person making the declaration; in this respect, national validity standards may be of assis‐
266
tance. . The more important risks of misunderstanding are often distributed by the parties agreeing on a con‐
267
tractual language. This is often done by way of a custom or the acceptance of a negotiating language by one
268
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side. The choice of a language for the contract places the risk of misunderstanding on the person who misun‐
269 270
derstands it. This applies in particular to the interpretation of general terms and conditions. If a party uses
271
another language in further communication, it does so at its own risk, unless, exceptionally, it is a native lan‐
guage of the recipient – that is, a language spoken at the place of his establishment – in which case the recipient
272
bears the risk of misunderstanding. The inclusion of general terms and conditions in a different language or
273
by means of a foreign language reference often fails. National language regulations which prescribe the use
274,
of certain languages, however, do not constitute a contractual language that is relevant for the interpretation
of the contract, because theyare superseded by Article 11 CISG within the scope of application of the Conven‐
275
tion.
If no specific contractual language can be identified, the user of a language generally bears the risk that the reci‐ 4
pient of the declaration will not understand him or her or will not understand him or her correctly due to a lack of
276
language skills. This risk may, however, be limited by the standards of Article 8 if the recipient of the declara‐
tion violates the standards of paragraphs 1 and 2 , in particular if he has declared that he has a command of the
277 278
language in question, or has not reasonably assured himself of the content of the declaration. This is the
279
case, for example, when a party signs a document whose language he or she does not understand. Further‐
more, the language of the State of establishment and – where a branch is involved – also of the branch State can
be assumed to be understandable; this applies all the more so if the professional authorisation of a party requi‐
280
res knowledge of the – used – language of its State of establishment.

There is no consensus on the effects of using English : it is sometimes argued that knowledge of this language 4
281
can generally be expected in cross-border trade. However, it seems more correct to take the view that a gene‐
282
ralising approach is not possible in this respect. English is not spoken and understood in every cross-border
market – one need only think of Bavarian-Austrian contracts. However, the requirements for the parties' ability to
understand this language are typically considerably higher than in other languages. It is also conceivable that in
283
certain markets an understanding of English can be assumed as a matter of use. Finally, it may also happen
284
that a party does not want to invoke a lack of language skills for image reasons.

If several language versions of a contract are drawn up and differences arise between them, the version in the 43
285
language of the original draft takes particular weight. However, this rule can also be waived: if the contract
provides that all language versions are equally binding, the criterion of the original version is no longer applicable.
286
Deviations from the basic rule are also obvious when referring to international standard terms and conditi‐
287
ons.
265 Fundamental Schlechtriem , FS Weitnauer, 1980, 129. Misleading Ferrari IHR 2003, 10 (13 f.), who speaks of the inef‐
fectiveness of the declarations in question.
266 Regarding the restrictions on the applicability of the rules on defects of will, see above → para. 6 et seq. Norms
which allocate language risks as such (cf., for example, the now repealed French Loi 75–1349) are superseded by Ar‐
ticle 8 .
267 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 9 ; cf. LG Augsburg 12.7.1994 , CISG-online 390; OGH 17.12.2003, CISG-online
828; LG Aachen 22.6.2010 , CISG-online 2161 Rn. 49.
268 LG Kassel 15.2.1996 , CISG-online 190; Enderlein/Maskow/Strohbach Art. 8 note 3.2.; Witz/Salger/Lorenz/ W. Witz
Art. 8 Rn. 9 .
269 LG Augsburg 12.7.1994 , CISG-online 390; OLG Hamm 8.2.1995 , CISG-online 141; LG Kassel 15.2.1996 , CISG-online
190; Schlechtriem/ Junge , 3rd ed. 2000, Art. 8 Rn. 4a.
270 Cf. Comment 4 to Art. 4.1 PICC; Comment 3 to Art. 2.20 PICC.
271 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 9 .
272 Staudinger/ Magnus CISG Art. 8 Rn. 28.
273 See below → para. 54a .
274

For example, the Law on the Polish Language of 7 October 1999 (see Klapsa WiRO 2000, 233 ff.), and also Article
671 of the Commercial Code of Guatemala (quoted in Schwenzer/Hachem/Kee , para. 26.18).
275 See below → Art. 11 Rn. 14a .
276 In substance, this was already the case with LG Frankfurt a. M. 2.5.1990 , CISG-online 183. Also see the literature
Schlechtriem/ Junge , 3rd edition 2000, Art. 8 para. 4a; Staudinger/ Magnus CISG Art. 8 para. 29; Witz/Salger/Lorenz/
W. Witz Art. 8 para. 9 .
277 LG Kassel 15.2.1996 , CISG-online 190; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 9 .
278 See OLG Hamm 8.2.1995 , CISG-online 141.
279 MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A. , U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1387 (the decision speaks of a " reckless behavior " of the party in question); Schlechtriem ,
FS Weitnauer, 1980, 129 (138).
280 See Article 53 of EC Directive 2005/36/EC on the recognition of professional qualifications, OJ 2005 L 255, 22 .
281 Schlechtriem/ Schlechtriem , 3rd edition 2000, Art. 24 para. 16; more cautious below Schroeter → Art. 24 para. 52
(“mostly”); cf. OGH 17.12.2003, CISG-online 828 (“German after English and French probably also … a world
language”).
282 OLG Hamm 8.2.1995 , CISG-online 141; Ferrari IHR 2003, 10 (13).
283 In this direction Schlechtriem , FS Weitnauer, 1980, 129 (133) (for sea transport); Witz/Salger/Lorenz/ W. Witz Art. 8
Rn. 9 .
284 Schlechtriem , FS Weitnauer, 1980, 129 (133).
285 See Kingston Estate Wines Pty Ltd. v. Vetreria Etrusca S. r. l. , Supr. Ct. SA 14.3.2008, CISG-online 1891 (express provi‐
sion of priority in the contract). Also Comment on Art. 4.7 PICC; Comment on Art. 5 :107 PECL .
286 Comment on Art. 5 :107 PECL .
287 Comment on Art. 4.7 PICC.

9. Customs
288
Practices established between the parties are among the circumstances expressly mentioned in Article 8( III) .
289 290
This includes, in particular, a meaning which the parties have previously given to similar clauses. Customs
291
are also capable of overriding the understanding of international commercial practice. In previous decision-ma‐
king practice, customs have played a particularly frequent role: for example, the effects of framework agreements
292
on the execution transactions have been classified in this way. Conversely, the rejection of the offer for a frame‐
work agreement militated against the assumption of a customary practice with regard to the terms and conditions
293
contained therein. It is not uncommon for provisions from previous contracts to be continued under subse‐
294 295
quent ones. This is the case, for example, for previously agreed notice periods , delivery clauses or due
296 297.
dates and occasionally even for general terms and conditions in total In addition, a subsequent contract
maybe understood to be ex works if the previous ones have been carried out accordingly and the buyer has not ob‐
298
jected. If it was customary between the parties to a long-term business relationship that the seller always deli‐
vered immediately upon the buyer's order without confirming it, his silence on further orders may – contrary to Arti‐
299
cle 18 I 2 – be regarded as acceptance. If it was customary for the parties to agree on an obligation to make
advance performance, this could not be interpreted as a contractual penalty in the event that the goods were not
300
accepted. If the debtor had previously always paid within ten working days when the agreed payment period
was ten days, a subsequent contract would need to contain clear indications if the payment period was to be chan‐
301
ged to calendar days. Finally, if it was customary between the parties to a long-term supply relationship for
crude oil to describe minor deviations in quantity as ‘+/– 10%’, this militated against an interpretation of the word‐
302
ing ‘up to’ as meaning approximately. If the replacement delivery of defective goods has so far always been lin‐
ked to their return, this argues for an understanding of the word ‘exchange’ which includes the return by the seller.
303

10. Customs
304 305
Customs too are part of the interpretative material to be taken into accountunder Article 8 III . However, the
relationship between the provision and Article 9 (II) is not entirely clear in this respect; the question to be decided
306
is whetherthe conditions of Article 9( II) must also be met within the framework of Article 8( III) . This is often
307
doubted. Accordingly, for Article 8 III with Schlechtriem, local or national customs can also be taken into ac‐
308
count. Article 8( III) fulfils a very different function from Article 9 (II) , since the latter is not concerned with sup‐
plementing the contract ‘or’ or ‘and’ with the content of customs, but merely with collecting the material for inter‐
309
pretation. The opposite view also introduces a restriction of the material for interpretation through the back
door of systematic interpretation – which is precisely what is to be rejected according to Art. 8 III . Ultimately, the‐
310
refore, the validity at the place of conclusion of the contract is not important, but on whether the use in ques‐
tion enables a conclusion to be drawn about the will of the person declaring it within the meaning of Art. 8 I or is
part of the objective recipient horizon within the meaning of paragraph 2. The latter is not infrequently – but not “at
311 312
least” – require that the use also applies in the recipient’s home country. However, if there are indications of
a different understanding on the part of the person making the declaration, the recipient will not be entitled to as‐
313
sume without further ado that the content of the declaration corresponds to his or her usual understanding.
This deviation from Article 9 (II) also explains the special importance of internationally used rules such as
314
Incoterms®, which as such cannot be recognised as commercial practices.

The case law has made an interpretation based on customs, for example in the case of the delivery clause “ prima
315
ferie non dopo ”, pointing out that in the German-Italian shoe trade this clause requires delivery before August.
Furthermore, two arbitration tribunals have interpreted an advance payment agreement as not normally requiring
316
the buyer to settle amounts under other contracts before delivery. Another arbitral decision found that the
purchase prices had not yet been finally determined between the parties, based not only on the wording of the
317
agreements but also on the customary provisional prices on the magnesium market. Furthermore, particular
emphasis was placed on the correspondence between commercial practice and the wording of the agreement bet‐
318
ween the parties. If it is not customary to conclude commission transactions but rather purchase contracts, the
319
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threshold for a deviation from this ‘custom’ is high. For German-Dutch business transactions, it is generally as‐
320
sumed that agreed prices are net prices with regard to VAT.
304 For the term see below → Art. 9 Rn. 11 .

305 See Art. 4.3 lit. f, 1.8 PICC, Art. 5 :102 lit. f PECL ; KG Vaud 29.2.2016, CISG-online 2761 No. 4.3.
306 In this sense, for example, OLG Hamm 30.11.2010 , CISG-online 2217; Soergel/ Lüderitz/Fenge CISG Art. 8 Rn. 6;
Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 12 . See the differentiation between Art. 4.3 lit. e and f and also Comment 2 to
Art. 4.3 PICC and also Comment to Art. 5 :102 PECL .
307 Staudinger/ Magnus CISG Art. 8 Rn. 24. Implicitly left open in BGH 11.12.1996 , CISG-online 225, since the will of the
parties can be determined. Now BGH 7.11.2012 , CISG-online 2374 Rn. 24: “Even if no commercial practice has yet ari‐
sen from this that meets the requirements of Art. 9 para. 2 CISG .”
308 Schlechtriem/Schroeter , International Sales Law, para. 218. On the same issue, see Kröll/Mistelis/Perales Viscasillas
CISG/ Zuppi Art. 8 para. 27 ; Witz/Salger/Lorenz/ W. Witz Art. 8 para. 11 (expressly different, however, para. 12).
309 Schlechtriem/Schroeter , International UN Sales Law, para. 218. Both functions are also distinguished by Najork , p. 46
and Pamboukis 25 J. L. & Com. (2005-06), 107 (108).
310 But see Commentary on Art. 5 :102 PECL .
311 But see Schlechtriem/ Junge , 3rd edition 2000, Art. 8 para. 10.
312 In this sense, for example, OLG Karlsruhe 20.11.1992 , CISG-online 54 (“free house, duty paid, tax unpaid” in relation to
the regulation of risk transfer). Critical of this decision Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 11 .
313 In this respect, see Witz/Salger/Lorenz/ W. Witz Art. 8 para. 11 ; also Soergel/ Lüderitz/Fenge CISG Art. 8 para. 6.
314 Cf. Leisinger , p. 145.
315 AG Nordhorn 14.6.1994 , CISG-online 259.
316 Arbitration Court of Hamburg HK 21.3.1996 , CISG-online 187; Arbitration Court of Hamburg friendly arbitration
29.12.1998, CISG-online 638 = NJW-RR 1999, 780 ( 782 ).
317 ICC 8324/1995, CISG-online 569.
318 OLG Hamm 30.11.2010 , CISG-online 2217 (on the health and infection status of pigs).
319 HGer Aargau 5.2.2008, CISG-online 1740 Nr. 3.4.1 (Obsthandel).
320 AG Geldern 17.8.2011 , CISG-online 2302.

11. Against proferentem

321
The internationally widespread rule that unclear statements should be interpreted contra proferentem is consi‐
322 323
dered one of the origins of the so-called objective interpretation. The rule also applies under the Convention.
324
There, in reversal of genealogy, it is a consequence of the decisiveness of the recipient’s understanding. Contra
proferentem is based on the basic idea that the party which drafted or enforced the wording in question must bear
325
the risk of its ambiguity; For the Convention, this allocation of risk is a general principle ( Article 7 (2) (1)) ari‐
326
sing from Article 8 and from other provisions in which it is reflected. This principle can also be used to resolve
327
ambiguities whichmay arise under Article 8 . could not be eliminated. The interpretation of general terms and
328
conditions is the most important, but not the only, area of application; the rule also applies to the draft of an in‐
dividual contract formulated by one party or to corresponding parts of the contract (or respective clauses). Contra
proferentem does not establish an absolute priority of the interpretation against the user, but presupposes the
329
openness of the interpretation result. If the will of the parties is ascertainable and recognisable, their applica‐
330
tion is therefore ruled out. One of the systematic consequences of the rule is that Article 8 establishes an ex‐
ception to Article 4 sentence 2 lit. a in that – unlike occasionally under national law – the vagueness of a unilate‐
rally drawn up clause does not entail its invalidity if an interpretation to the detriment of the declarant is possible.
331
; this applies in particular to transparency requirements under general terms and conditionssuch as Section
332
307 I 2 BGB , which are superseded by the Convention . However, the application of contra proferentem may re‐
333
sult in a party’s declaration not containing a sufficiently specific offer within the meaning of Article 14 .

Contra proferentem applies , for example, in the case of diverging language versions if this or the original version
334
was drafted unilaterally. The disregard of an insufficiently specific complaint under Article 39 is a legally regula‐
335
ted case of application. The rule applies all the more if the person making the statement does not provide cla‐
336
rity despite further enquiries. Based on this idea, the courts have refused to interpret an agreed exclusion of the
337
Hague Sales Law as a rejection of the Convention. Furthermore, a contract termination may be ineffective if the
338 339
declarations of the entitled party are contradictory. Finally, the clause delivery ‘ prima ferie non dopo ’ does
340
not sufficiently recognise a possibly intended fixed character.
321 For further formulations of this rule see Baldus , p. 118.
322 Honnold/Fletchner Art. 8 Rn. 107.1.
323 BGH 28.5.2014 , CISG-online 2513 Rn. 21; OLG Stuttgart 31.3.2008 , CISG-online 1658 Rn. 37; Honnold/Fletchner Art.
8 Rn. 107.1; Brunner/ Hurni Art. 8 Rn. 21 ; Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 Rn. 24 ;
Schwenzer/Hachem/Kee , Rn. 26.61; Staudinger/ Magnus CISG Art. 8 Rn. 18. In substance also OLG Frankfurt a. M.
31.3.1995 , CISG-online 137; OLG Celle 24.5.1995 , CISG-online 152. See Art. 4.6 PICC; Art. 5 :103 PECL .
Witz/Salger/Lorenz/ W. Witz Art. 8 para. 15 ,however, are doubtful because Art. 8 II does not help to overcome remai‐
ning ambiguities. Also Ferrari IHR 2003, 10 (14) takes a different view.
324 Staudinger/ Magnus CISG Art. 8 Rn. 18.
325 Comment on Art. 4.6 PICC; Comment on Art. 5 :103 PECL . Zur Person des proferens Baldus , S. 118–120.
326 Artt. 14, 35 II lit. b, 39 I, 43 I.
327 See Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 15 .
328 This is now expressly stated in BGH 28.5.2014 , CISG-online 2513 para. 21.
329 Comment on Art. 5 :103 PECL .
330 In the same matter see BGH 11.12.1996 , CISG-online 225.
331 See Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 1 .
332 AA below Schroeter → Before Artt. 14–24 Rn. 36 .
333 See OGH 10.11.1994, CISG-online 117; Magellan International Corp. v. Salzgitter Handel GmbH , U. S. Dist. Ct. (N. D.
Ill) 17.12.1999, CISG-online 439 = 76 F. 2d 919, 924; Geneva Pharmaceutical Technology Corp. v. Barr Laboratories,
Inc. , U. S. Dist. Ct. (S. D. N. Y.) 10.5.2002, CISG-online 653 = 201 F. 2d 236, 282 ( but in each case sufficient certainty
was assumed); below Schroeter → Art. 14 Rn. 38 f. AA apparently OGH 20.3.1997, CISG-online 269.
334 Comment on Art. 5 :107 PECL .
335 On the merits, OLG Saarbrücken 13.1.1993 , CISG-online 83; BGH 4.12.1996 , CISG-online 260. On the obligation to
give notice of defects and interpretation, see above → para. 37 .
336 see OLG Frankfurt a. M. 31.3.1995 , CISG-online 137.
337 LG Düsseldorf 11.10.1995 , CISG-online 180; aA Wolf/Horn/Lindacher/ Lindacher Anh. to Section 2 Rn. 73.
338 OLG Koblenz 31.1.1997 , CISG-online 256.
339 Above → para. 46 .
340 AG Nordhorn 14.6.1994 , CISG-online 259.

12. Favor negotii and effectiveness-oriented interpretation

341
In accordance with the special rules of the Principles Article 8 providesa general guideline for the interpretation
342
of the favor negotii . It is based on the consideration, ultimately rooted in Articles 6 and 8 I , that the parties
want to conclude a meaningful contract. The principle protects the common will of the parties and thus the objec‐
343
tives of the contract. The favor negotii has three main variations: firstly, the interpretation is intended to avoid
344
the invalidity of the contract or, in the event of invalidity or meaninglessness of individual parts of the contract,
345
to minimize them to these. The Convention therefore requires that invalid clauses be reduced in order to pre‐
serve their validity; however, this is limited by the national prohibitions on such an interpretation, which must also

be taken into account under Article 4 , sentence 2 , letter a. Secondly, the favor negotii serves to avoid absurd inter‐
346
pretation results . In particular, contradictions between individual clauses must be resolved in a reasonable
manner in accordance with the purpose of the contract; the rule therefore warns against sticking to the wording in
such cases. It would be fundamentally incompatible with Art. 8 to assume that both clauses are invalid. Further‐
more, the favor negotii results in the – rebuttable – presumption that the parties did not agreeto the individual clau‐
347
ses without reason . Accordingly, the Convention does not recognise any ground for invalidity based on the per‐
plexity of declarations and leaves no room for it.
341 Cf. Art. 5 :106 PECL ; Art. 4.5 PICC und dazu Nabati Rev. dr. unif. 2007, 247 (254).

342 Brunner/ Hurni Art. 8 para. 21 ; Kröll/Mistelis/Perales Viscasillas CISG/ Zuppi Art. 8 para. 29 ;
Schwenzer/Hachem/Kee , para. 26.56.
343 Furniture , S. 131.
344 As here also Schwenzer/Hachem/Kee , para. 26.58. Comment on Art. 5 :105 PECL .
345 See OLG Stuttgart 15.5.2006 , CISG-online 1414 (against an interpretation which leaves no relevant scope of applica‐
tion for an arbitration clause).
346 Comment on Art. 5 :105 PECL ; cf. Baldus , p. 116 f.
347 See illustration to Article 4.5 PICC; and now also Schwenzer/Hachem/Kee , para. 26.59.

13. Subsequent conduct of the parties

The fourth circumstance to be taken into account, as expressly provided for in Article 8 III, is the subsequent con‐ 50
348
duct of the parties. This includes statements and notifications as well as other actions. Despite the difficulties
349 350
of a logical justification common – Relevance is based on the fact that subsequent conduct may allow
351
conclusions to be drawn about the original intention or understanding of the parties. At the same time, Article
352
8 III refersto general principles of the Convention, namely the prohibition of venire contra factum proprium
353 354
and the possibility of forfeiture of legal positions. However, the fluid border can cause difficulties between
the interpretation based on subsequent conduct of the parties and the amendment of the contract within the me‐
355
aning of Art. 29 . In particular, the risk that such conduct may unilaterally lead to a subsequent amendment of
356
the contract must be avoided.

The subsequent conduct of the parties plays a role, especially in cases where the obligation to the contract as a 5
whole was in question. For example, a subsequent unconditional reference to the text of the contract proves that
357
the party in question feels bound by the contract. The resale of the goods confirms the view that a valid con‐
358
tract has been concluded. If one party accepts invoices from the other relating to the contract, this is an argu‐
359
ment in favour of considering the contract as concluded between them. A mutually agreed adjustment of the
terms of the documentary credit does not constitute a material breach of contract, even if it was made under pro‐
360
test by the seller. On the other hand, the requirement for confirmation of the contract shows doubts about the
361
contractual obligation. Furthermore, the fact that a party continues to perform the contract without reserva‐
362
tion militates against the assumption that it has declared an effective termination of the contract. Likewise,
the buyer's unconditional demand for an invoice for the entire delivery, knowing that only part of the goods would
363
be used, conflicts with an agreed right of return.

Other actions allow conclusions to be drawn about the content of the contract . For example, the party who takes 5
out transport insurance without a corresponding contractual arrangement obviously assumes that they themsel‐
364
ves bear the transport risk. On the other hand, a practice which deviates from Article 57 does not necessarily
constitute evidence of a different agreement as to the place of payment; it may also represent generosity on the
365
part of the creditor. Furthermore, acceptance without objection may indicate that the goods are in conformity
366
with the contract; However, this consideration is not unproblematic, because Articles 38 et seq. contain a
special regulation in this respect. The basis of this regulation is precisely the explanatory value of acceptance wi‐
thout objection. This explanatory value is also taken into account in other respects: For example, the acceptance
367
of late delivery can be set against the acceptance of a fixed-term transaction. as well as the acceptance of a
368
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368
time limit according to Art. 48 III , II . Even if the acceptance of the performance is only for the purpose of miti‐
gating the damage within the meaning of Article 77 , this may speak against the materiality of the breach of con‐
369
tract. The acceptance without objection of a subsequent notification from the buyer that he will use the
purchased item in a certain way may justify the conclusion that this specific use was from the outset part of a
less precisely formulated intended use within the meaning of Art. 35 ( 2 )(b). The presentation of a bill of ex‐
change issued by the seller for the price of a partial delivery for acceptance by the buyer speaks against the im‐
370
mediate due date of the entire purchase price.
348 OGer Zug 8.11.2011, CISG-online 2425 No. 3.1.

349 Schlechtriem/Schroeter , International UN Sales Law, para. 219; also sceptical Baldus , p. 137 f.
350 See Art. 4.3 lit. c PICC; Art. 5 :102 lit. b PECL and Schwenzer/Hachem/Kee , para. 26.40.
351 HGer Aargau 5.2.2008, CISG-online 1740 no. 3.1.1; OGer Zug 8.11.2011, CISG-online 2425, no. 3.1;
Schlechtriem/Schroeter , Internationales UN-Kaufrecht, Rn. 219. Likewise for German law BGH 7.12.2006 , NJW-RR
2007, 529 ( 530 ).
352 OLG Linz 23.3.2005, CISG-online 1376 No. 5.1; HGer Zurich 17.9.2014, CISG-online 2656 No. IV. 2.1.3.2. See Schlech‐
triem/ Junge , 3rd edition 2000, Art. 8 Rn. 6; Enderlein/Maskow/Strohbach Art. 8 note 11.; Najork , p. 47; more reser‐
ved Staudinger/ Magnus CISG Art. 8 Rn. 26 (preference for conduct).
353 See International Arbitration Act of the Federal Chamber of Commerce (Vienna) 15 June 1994, CISG-online 120. On
the tacit waiver see above → para. 37 .
354 See Staudinger/ Magnus CISG Art. 8 Rn. 25; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 13 . Too broad, however, OLG Linz
23.3.2005, CISG-online 1376 No. 5.1: also includes changes to the content of the contract.
355 Very open in this respect OGer Zug 8.11.2011, CISG-online 2425 No. 3.1.
356 Schlechtriem/Schroeter , International UN Sales Law, para. 219; Staudinger/ Magnus CISG Art. 8 para. 25; cf. Oberst.
VolksG Vietnam (Ho Chi Minh) 5.4.1996, CISG online 1081 (refusal to consider a clause from a later letter of credit;
qualification as an offer to change the contract); Château de Charmes Wines Ltd. v. Sabaté USA Inc. , U. S. Ct. App.
(9th Cir.) 5.5.2003, CISG-online 767 (no effective agreement on a place of jurisdiction through a clause in later in‐
voices). Ferrari IHR 2003, 10 (14) is therefore too undifferentiated.
357 Filanto, S. p. A. v. Chilewich Intern. Corp., U. S. Dist. Ct. (S. D. N. Y.) 14.4.1992, CISG-online 45 = 789 F. 1229, 1240; BGer
5.4.2005, CISG-online 1012 E. 4.3.
358 OGH 10.11.1994, CISG-online 117.
359 OLG Stuttgart 28.2.2000 , CISG-online 583.
360 HGer Zurich 17.9.2014, CISG-online 2656 No. IV. 2.1.3.2.
361 OLG Frankfurt a. M. 30.8.2000 , CISG-online 594.
362 OLG Koblenz 31.1.1997 , CISG-online 256.
363 BezG St. Gallen 3.7.1997, CISG-online 336.
364 OLG Karlsruhe 20.11.1992 , CISG-online 54.
365 Cf. Cass. 7.8.1998, CISG-online 538.
366 see OLG Frankfurt a. M. 31.3.1995 , CISG-online 137.
367 AG Nordhorn 14.6.1994 , CISG-online 259; for contrary party conduct see, for example, CA Milano 20.3.1998, CISG-on‐
line 348.
368 AG Nordhorn 14.6.1994 , CISG-online 259.
369 OLG Hamburg 5.10.1998 , CISG-online 473.
370 Arbitration Act of the Russian Chamber of Commerce and Industry, 27 May 2005, CISG-online 1456 No. 3.3.3.2.

14. Favor of the debtor

A general guideline of interpretation in favour of the debtor is based on the experience that each party wants to 5
commit itself as little as possible. It can conform to contra proferentem or work against this guideline because
the starting point is not the specification of the contractual wording but the contractual obligation itself. Whether
371
this empirical principle can be converted into a general rule of interpretation under the Convention is is open .
However, the objective approach to interpreting Art. 8 (2) speaks strongly against this; accordingly, the rule of ex‐
perience can at best be taken into account when specifying the expectation of due diligence under paragraph 1 .
371 See Schwenzer/Hachem/Kee , para. 26.62.

VIII. Treatment of general terms and conditions

1. Inclusion of general terms and conditions (paras. 52-56)

2. Surprising clauses (para. 57)

3. Priority of the individual agreement (para. 58)

4. Interpretation of general terms and conditions (para. 59)

1. Inclusion of general terms and conditions

372
The Convention does not contain any specific rules for the treatment of standard terms and conditions. Arti‐ 5
cle 8 therefore determines – together with Articles 14 et seq. – the conditions for the effective inclusion of con‐
373 374
ditions in the contract. This requires at least an explicit reference to the general terms and conditions. This
375
must be sufficiently clear. Without such a reference, neither inclusion under Article 8( II) nor knowledge or cul‐
376
pable ignorance under Article 8 (I) arises . In any case, the express transmission of the general terms and con‐
377
ditions is usually sufficient. The express rejection of sent general terms and conditions excludes their inclu‐
378,
sion, while the individual and express approval of the inclusion makes the General Terms and Conditions app‐
379
licable even without the knowledge of the other party. Of practical importance are those cases in which the
other party has responded with silence . It is also possible to include the matter based on a custom of the parties
380
in accordance with Art. 9 I or commercial practice according to Art. 9 II ; such a practice could also exclude in‐
381 382
clusion in individual cases. The applicability of Articles 8 , 9 , 14 et seq. excludes recourse to national law.
383
A protective norm comparable to Art. 31 II EGBGB or Art. 8 II Rome I Convention/Art. 10 II Rome I Regulation
384
is neither present nor necessary. To the extent that the CISGis applied via Art. 1 I lit. b, these – which may lead
385
to a split assessment of the contract – – rules are, however, significant. The question of the validity of general
386
terms and conditions is expressly excluded from the Convention according to Art. 4 S. 2 lit. a. However, con‐
387
flicting general terms and conditions are treatedaccording to the standards of Articles 8 , 9 , 14 et seq.

The question of whether Article 8 imposes a general obligation for the user of general terms and conditions to 53
388
send information or whether a reference to the conditions not sent can also be sufficient is controversial . The
German Federal Court of Justice has – following a widespread view in the German literature – ruled in favour of a
389
general transmission requirement. This is justified primarily by the argument that the waiver of transmission
390
under German law is justified by the control of content. The recognised exceptions include prior knowledge of
391 392
the General Terms and Conditions, the express approval (also) of the General Terms and Conditions and
393
compliance with a practice or usage of international trade by inclusion; If the General Terms and Conditions
themselves are already relevant international commercial practice, inclusion does not take place under Art. 8 but
394
under Art. 9 . In any case, sending the document to the contracting party’s accounting department does not
395
meet these standards.
396
However, it is correct to reject such a general obligation to transmit information . Since the BGH apparently 53
397
ignored previous judgments of the OGH and the Tribunal commercial de Nivelles (Belgium) , its judgment
398
does not even have persuasive authority as a precedent. US jurisprudence tends todecide the question on the
399
basis of the criteria of Article 8 without addressing the European dispute. Positive knowledge of the content
400
of the conditions is therefore not required anyway, Art. 8 II . Rather, a differentiated approach is required, in

keeping with the openness of Article 8 : even tacit inclusion as a result of negotiations or by custom may be con‐
401 402
sidered; a simple reference may suffice. What is crucial is that this reference is so clear that a reasonable
403
party within the meaning of Article 8 (2) can understand it. In addition, the recipient must be given the oppor‐
tunity to take note of the conditions in a reasonable manner upon request. Such a request is not always unrea‐
Of course, he doesn’t have to look for 404 405
sonable for the recipient of the declaration; himself. The delay resulting
from its necessity is, however, to the detriment of the user and may be sanctioned under Article 16 (2) .
In principle, the inclusion of the General Terms and Conditions requires that the reference is made during the 53
406,
negotiations on the specific contract, i.e. at the latest when the contract is concluded. The subsequent sen‐
ding of invoices or delivery notes with references to general terms and conditionsoften causes difficulties . This
407
does not usually lead to inclusion . There are two exceptions to this : Inclusion by reference in delivery notes
and invoices sent subsequently can, in rare cases, be made by way of a contract amendment, but additional infor‐
mation will be required from the sender to prove that the parties have intended this; the mere transmission is not
408
sufficient for this purpose. High demands must also be placed on the will of the other party: in particular, the
409
simple payment of the invoice does not constitute consent to the amendment of the contract and certainly
410
not from simple silence. A second exception may arise in the case of ongoing business relationships in that
the invoices or delivery notes sent regularly with reference to general terms and conditions have effects on con‐
411
tracts concluded subsequently. For example, some courts have considered the regular sending of invoices or
similar documents containing references to general terms and conditions to be sufficient for inclusion if the refe‐
412
rences were readily apparent even to the casual reader. Whether this is sufficient, without further evidence, to
413
assume that the parties intended to conduct their business on the basis of the General Terms and Conditions,
414
is a matter for the trial judge. In any event, it should be sufficient for inclusion that the parties have observed
other clauses contained only in the invoices or delivery notes – such as a cash discount clause – when executing
415
the contract.

In addition to this fundamental point, there are decisions on many individual questions : For example, a reference 54
416,
to the conditions printed on the back of the contract is sufficient, while the simple print on the back without
417
such a reference may not be sufficient. A reference in a ‘pro forma’ invoice leading to the conclusion of the
418
contract may also be sufficient. There is controversy in the literature as to whether, when concluding con‐
419
tracts on the Internet, the provision of the general terms and conditions on the user's homepage is sufficient;
420
This is unlikely to meet the – overly strict – requirements of the German Federal Court of Justice. Inclusion –
by both parties – tacitly or by custom can only be assumed if the other party is positively aware of the conditions.
421
However, the simple reference to ‘usual conditions’ or the ‘contractual basis’ is not sufficient for inclusion if it
422
is not clear between the parties that the terms and conditions are covered by it. Distinguishing such conditi‐
423
ons from recorded customs may be difficult. In any event, since the loss of their normative force, the General
Terms and Conditions of Supply of the Council for Mutual Economic Assistance (GTC CMEA) only become part
424
of the contract if the parties have expressly included them.

If the terms and conditions are drafted in a language that is not understandable to the recipient of the declaration 54
and is not already the language of the contract and does not have to be in the circumstances, this may make it
425
unreasonable for them to be acknowledged and may also prevent inclusion. The same generally applies to a
foreign language reference to general terms and conditions if it is not the language of the contract and the lan‐
426
guage used is not understandable to the recipient. Which language must be understandable to the recipient of
the declaration depends on the circumstances of the individual case. The more widespread a language is, the
427 428 429
more likely it is to be included; The use of English is neither necessary is still sufficient. The user must
430
prove the comprehensibility; any remaining doubts are at his expense. In any event, the language understood
431
by the recipient of the declaration is one in which a representative appointed by him is proficient. Despite their
incomprehensibility, such general terms and conditions are also included whose validity the unintelligible party
432
has expressly and individually accepted.
433
The general rules of inclusion also apply to choice of law clauses : Articles 1 (1 )( b) and 6 refer the question 55
434
to the scope of the Convention; Articles 8 , 14 et seq. therefore control its inclusion. This also applies in
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principle to the simple rejection of the Convention or the choice of the law of a Contracting State while rejecting
435 436
the Convention . The widespread conflict of law rule of the decisiveness of the target law , however, does
437
not apply because it does not constitute a choice of law based on conflict of laws. A fortiori, special protec‐
438
tion mechanisms under conflict of laws apply, , which refer to the law of the place of residence of the recipient
439
of the declaration, do not apply. Two practically irrelevant exceptions to this are the case where the forum
state is not a contracting state to the Convention and whose private international lawdoes not recognise Article 1
(I )(b) and the situation where the forum state is a reserved state under Article 95 and does not recognise Article
1 (I )(b) in any other respect. In practice, the choice of the law of a non-contracting state is considerably more im‐
portant; in this case, the effective inclusion is not governed by the Convention, but the chosen target law decides
on the effectiveness of the choice of law.
440
The treatment of jurisdiction and arbitration clauses poses difficulties . The conditions for their validity lie fun‐ 56
441
damentally outside the scope of the Convention. There is, however, uncertainty as to whether the consensus
442
on the clause in question and thus in particular its inclusion falls within the scope of the Convention or not.
443
The decisive factor for the application of Articles 8 , 14 et seq. to jurisdiction and arbitration clauses is Arti‐
444
cle 19 III : The provision even declares clauses of this kind to be an essential part of the contract and, in case
of doubt, allows the conclusion of the contract to fail if there are differences on this point. In this respect, the
Convention supersedes all national inclusion rules; on the other hand, special rules on consensus arising from in‐
445
ternational treatiestake precedence under Article 90 .
372 So expressly BGH 31.10.2001 , CISG-online 617; OLG Cologne 19.10.2011 , CISG-online 2535 Rn. 38; OLG Naumburg
13.2.2013 , CISG-online 2455; OLG Stuttgart 21.12.2015 , CISG-online 2747.
373 OLG Saarbrücken 13.1.1993 , CISG-online 83; OGH 6.2.1996, CISG-online 224; OLG Zweibrücken 31.3.1998 , CISG-on‐
line 481; BGH 31.10.2001 , CISG-online 617; OGH 17.12.2003, CISG-online 828; HR 28.1.2005, CISG-online 1002; OLG
Cologne 19.10.2011 , CISG-online 2535 Rn. 38; OLG Naumburg 13.2.2013 , CISG-online 2455; OLG Munich 16.8.2017 ,
CISG-online 2900; Honnold/Fletchner Art. 8 Rn. 109; Lurger IHR 2005, 177 (182); Schlechtriem/Schroeter , Internatio‐
nales UN-Kaufrecht, Rn. 221, 250 ff.; below Schroeter → Art. 14 Rn. 117 ; Schwenzer/Mohs IHR 2006, 239 (241);
Wolf/Horn/Lindacher/ Lindacher Anh. to § 2 Rn. 73, 77. See Art. 2 :104 PECL ; different CNACom 14.10.1993, CISG-
online 87 (for a jurisdiction clause) and decisions of some Dutch courts of first instance, see RB Arnhem 17.4.2004,
CISG-online 946 and the evidence in Janssen Uniform L. Rev. 2005, 901 (904 f.). Also Barbara Berry, S. A. de C. V. v.
Ken M. Spooner Farms Inc. , U. S. Dist. Ct. (W. D. Wash.) 13.4.2006, CISG-online 1354 (application of Art. 4 ); for more
details see Eiselen PER/PELJ 14 (2011), 1.
374 This is now expressly stated by RB Zwolle 9.12.2009, CISG-online 2069 No. 4.6. For the question of the obligation to
send, see below → para. 53 .
375 CSS Antenna, Inc. v. Amphenol-Tuchel Electronics, GmbH, U. S. Dist. Ct. (Maryland) 8.2.2011, CISG-online 2177 („This
language is ambiguous at best.“) für die zu höflich geratene Formulierung „May we point out that for all deliveries and
services only the known general conditions of supply and delivery for products and services of the electrical industry
(ZVEI) in their latest editions are valid.“.
376 For the latter, see CSS Antenna, Inc. v. Amphenol-Tuchel Electronics, GmbH , U. S. Dist. Ct. (Maryland) 8.2.2011, CISG-
online 2177.
377 LG Fulda 29.9.2015, CISG-online 2716.
378 OLG Linz 23.3.2005, CISG-online 1376 No. 6.2.
379 Below → para. 53a .
380 OGH 31.8.2005, CISG-online 1093; OLG Hamm 6.12.2005 , CISG-online 1221 para. 33 (on Art. 23 EuGVVO aF, but CISG
case); OLG Linz 23.3.2005, CISG-online 1376 no. 5.2; OLG Innsbruck 1.2.2005 , CISG-online 1130; OLG Vienna
27.2.2017 , CISG-online 2814. Likewise for German law BGH 1.6.2005 , CISG-online 1429 = NJW-RR 2005, 1518 ( 1520
).
381 See RB Zwolle 22.1.2003, CISG-online 1023 ( in casu denied).

396 See Trib. com. Nivelles (Belgium) 19.9.1995, CISG-online 366; OGH 6.2.1996, CISG-online 224; LG Heilbronn 15.9.1997
, CISG-online 562; OLG Zweibrücken 31.3.1998 , CISG-online 481; OLG Linz 8.8.2005, CISG-online 1087; Berger , FS
Horn, 2006, 3 (17); Kindler , FS Heldrich, 2005, 225 ff.; Mittmann IHR 2006, 103 (105); Schmidt-Kessel NJW 2002,
3444 ff. Left open by Trib. Rovereto August 24, 2006, CISG online 1374.
397 See OGH 6.2.1996, CISG-online 224 (followed by OGH 17.12.2003, CISG-online 828); Trib. com. Nivelles (Belgium)
19.9.1995, CISG-online 366.
398 See Janssen IHR 2004, 194 (199 f.).
399 CSS Antenna, Inc. v. Amphenol-Tuchel Electronics, GmbH, U. S. Dist. Ct. (Maryland) 8.2.2011, CISG-online 2177.
400 Misunderstood RB Tongeren 25.1.2005, CISG-online 1106.
401 OGH 6.2.1996, CISG-online 224; OLG Zweibrücken 31.3.1998 , CISG-online 481; OGH 17.12.2003, CISG-online 828;
OGH 31.8.2005, CISG-online 1093; LG Coburg 12.12.2006 , CISG-online 1447; Kramer , FS Welser, 2004, 539 (550 f.);
Schwenzer/Mohs IHR 2006, 239 (241). On the requirements for such a practice, see LG Aachen 22.6.2010 , CISG-on‐
line 2161 para. 51.
402 OLG Zweibrücken 31.3.1998 , CISG-online 481 (obiter for individual general terms and conditions); OGH 17.12.2003,
CISG-online 828; LG Coburg 12.12.2006 , CISG-online 1447.
403 OLG Zweibrücken 31.3.1998 , CISG-online 481 (obiter for individual general terms and conditions); OGH 17.12.2003,
CISG-online 828; LG Coburg 12.12.2006 , CISG-online 1447.
404 Generell otherwise BGH 31.10.2001 , CISG-online 617.

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405 Schwenzer/Mohs IHR 2006, 239 (241).
406 LG Coburg 12.12.2006 , CISG-online 1447; RB Kortrijk 8.12.2004, CISG-online 1511 = IHR 2005, 114 (with misleading
guiding principle by Piltz ); OLG Cologne 19.10.2011 , CISG-online 2535 Rn. 40; OLG Stuttgart 21.12.2015 , CISG-online
2747; Piltz IHR 2007, 121.
407 Ontario Superior Court of Justice 28.10.2005, CISG-online 1139 No. 29 (“ unreasonable ”); RB Hasselt 2.6.1999, CISG-
online 762; Gerechtshof Arnhem 21.10.2000, CISG-online 1533 = NIPR 2001, No. 14; RB Rotterdam 14.10.1999, CISG-
online 1312; Mittmann IHR 2006, 103 (105 f.).
408 As here now OLG Jena 10.11.2010 , CISG-online 2216 para. 30; OLG Cologne 19.10.2011 , CISG-online 2535 para. 40;
LG Aachen 22.6.2010 , CISG-online 2161 para. 50.
409 Ontario Superior Court of Justice 28.10.2005, CISG-online 1139 No. 29; RB Kortrijk 8.12.2004, CISG-online 1511 = IHR
2005, 114 (with misleading guiding principle by Piltz ); in this respect correct Piltz IHR 2007, 121 f.
410 OLG Jena 10.11.2010 , CISG-online 2216 Rn. 31.
411 Expressly, as here now also OLG Cologne 19.10.2011 , CISG-online 2535 para. 40 ( in concreto denied).
412 OLG Zweibrücken 31.3.1998 , CISG-online 481; LG Coburg 12.12.2006 , CISG-online 1447; critically on this see Piltz
IHR 2007, 121 (122).
413 Negative OLG Cologne 19.10.2011 , CISG-online 2535 para. 42 (due to lack of sufficient explanations); Piltz IHR 2007,
121 (122); cf. Rauscher , FS Heldrich, 2005, 933 (941).
414 Below → para. 60 .
415 Vgl. BGer 5.4.2005, CISG-online 1012 E. 4.2.
416 OLG Saarbrücken 13.1.1993 , CISG-online 83; AG Nordhorn 14.6.1994 , CISG-online 259; for the sufficiency of a refe‐
rence in the delivery note to the general terms and conditions printed on the back of the note, even OLG Cologne
19.10.2011 , CISG-online 2535.
417 MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S. P. A., U. S. Ct. App. (11th Cir.) 29.6.1998, CISG-on‐
line 342 = 144 F. 3d 1384, 1391 f.; LG Göttingen 31.7.1997, CISG-online 564.
418 CNACom 14.10.1993, CISG-online 87 (for jurisdiction clause).
419 In favour, see Stiegele/Halter IHR 2003, 169; against, see Ventsch/Kluth IHR 2003, 224 f.
420 Differentiating according to the type of contract conclusion, see also LG Hamburg 17.7.2017 , CISG-online 2925 (refe‐
rence to general terms and conditions accessible on the Internet is insufficient if the contract is not also concluded
on the Internet).
421 OGH 6.2.1996, CISG-online 224; Trib. Rovereto 24.8.2006, CISG-online 1374. In the case of unilateral tacit inclusion,
however, the reasonable possibility of knowledge is sufficient, above → para. 52 ff.
422 OGH 6.2.1996, CISG-online 224.
423 See OGH 15.10.1998, CISG-online 380 (Austrian timber trade practices).
424 Arbitration Act Bulg. IHK 12.2.1998, CISG-online 436.
425 OLG Düsseldorf 21.4.2004 , CISG-online 915; LG Heilbronn 15.9.1997 , CISG-online 562; LG Aachen 22.6.2010 , CISG-
online 2162 Rn. 49; AG Kehl 6.10.1995 , CISG-online 162; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 16 ;
Schwenzer/Hachem/Kee , Rn. 12.18; cf. AG Nordhorn 14.6.1994 , CISG-online 259 ( in this case, bilingual general
terms and conditions are sufficient); OLG Linz 8.8.2005, CISG-online 1087 (negotiation language is sufficient).
426 OGH 6.11.2008, CISG-online 1833; OLG Düsseldorf 21.4.2004 , CISG-online 915; LG Göttingen 31.7.1997 , CISG-online
564; cf. OLG Stuttgart 16.6.1987 , IPRax 1988, 293 f.; OGH 17.12.2003, CISG-online 828 and OGH 16.4.2004 with note
Gamerith ÖJZ 2004, 837 f. (on Austrian law); too undifferentiated Piltz NJW 2005, 2126 ( 2128 ).
427 See OGH 17.12.2003, CISG-online 828 (“After English and French, German is also a world language”) and subse‐
quently OLG Innsbruck 1.2.2005 , CISG-online 1130.
428 Too narrow therefore Schwenzer/Mohs IHR 2006, 239 (241).

430 OLG Düsseldorf 21.4.2004 , CISG-online 915; LG Aachen 22.6.2010 , CISG-online 2161 para. 49.
431 OGH 17.12.2003, CISG-online 828; OLG Innsbruck 1.2.2005 , CISG-online 1130.
432 Above → para. 42 .
433 Above → para. 1a .
434 Wolf/Horn/Lindacher/ Lindacher Anh. Zu § 2 Rn. 73; left open by OLG Düsseldorf 30.1.2004 , CISG-online 821; appar‐
ently overlooked by OLG Celle 2.9.1998 , CISG-online 506.
435 HGer St. Gallen 15.6.2010, CISG-online 2159; LG Aachen 22.6.2010, CISG-online 2162.
436 See Art. 8 I EuIPRÜ; Art. 31 I EGBGB .
437 Schlechtriem , 50 years BGH, p. 407, 410 f.; Schmidt-Kessel NJW 2002, 3444 f.; Ie also Ventsch/Kluth IHR 2003, 61.

438 See Art. 8 II EuIPR; Art. 31 II EGBGB .

439 Apparently not seen by LG Duisburg 17.4.1996 , CISG-online 186.
440 See OLG Cologne 8.1.1997 , CISG-online 217; Wolf/Horn/Lindacher/ Lindacher Anh. Zu § 2 Rn. 81–124; for a detailed
discussion of these questions, see Rauscher , FS Heldrich, 2005, 933 ff.
441 Schlechtriem , International Sales Law, 4th ed., para. 58.
442 So Trib. Com. Nivelles (Belgium) 19.9.1995, CISG-online 366; LG Trier 8.1.2004 , CISG-online 910; left open by OLG
Düsseldorf 30.1.2004 , CISG-online 821.
443 In this sense, CNACom 14.10.1993, CISG-online 87; Schlechtriem/ Schlechtriem , 3rd ed. 2000, before Art. 14–24
para. 1.
444 As here Mittmann IHR 2006, 103 (104).
445 Schlechtriem , International Sales Law, 4th ed., para. 58.

2. Surprising clauses
If general terms and conditions contain surprising clauses, these will not become part of the contract even if the in‐
446
clusion is otherwise successful. In this respect, the other party may misunderstand the intention of the person
making the declaration ( Art. 8 I ). Furthermore, the clause does not correspond to the contractual content that a
reasonable person in the shoes of the contracting party would have assumed ( Art. 8 II ). The prerequisite for non-
447
inclusion is therefore, first of all, the contracting party's ignorance of the clause. In addition, the clause must not
have been reasonably foreseeable for him, given the content, language and external design of the contract. This se‐
448
cond threshold is quite high and is exceeded less and less the more widespread the related terms are. In this
449
sense, arbitration clauses as such will hardly ever be surprising. With regard to Article 4, sentence 2 , letter a, it
must be ensured that relevant clauses are only examined with regard to their surprise character, because only this
assessment is covered by Articles 8 , 14 et seq.
446 OLG Düsseldorf 21.4.2004 , CISG-online 915 (with unclear demarcation between Art. 8 and § 3 AGBG aF ); Schlech‐
triem/ Junge , 3rd ed. 2000, Art. 8 Rn. 8a Fn. 24; Schwenzer/Mohs IHR 2006, 239 (241); Wolf/Horn/Lindacher/ Lin‐
dacher Anh. To § 2 Rn. 77. AA (application of national law, since question of validity) Schlechtriem JZ 1988, 1037 (
1040 ) Fn. 28; Staudinger/ Magnus CISG Art. 4 Rn. 25. See Art. 2.20 PICC.
447 Cf. Comment 4 to Art. 2.20 PICC.
448 Schlechtriem/ Junge , 3rd edition 2000, Art. 8 para. 9. For various criteria see Schwenzer/Hachem/Kee , para.
12.24.
449 This applies to commercial transactions in general OLG Munich 16.8.2017 , CISG-online 2900.

3. Priority of the individual agreement

450
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450
The Convention recognizes the priority of individual agreements over incorporated terms and conditions. Ex‐
451
ceptionally, a hierarchy of clauses arises. This arises from the overall context of the contract and from the pri‐
mary consideration of the will of the parties , to which the individual agreement – according to a rebuttable pre‐
452
sumption – is closer than the general terms and conditions. This presumption also applies to oral agreements.
453

450 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 14 ; Wolf/Horn/Lindacher/ Lindacher Anh. to Section 2 Rn. 77;
Schwenzer/Hachem/Kee , Rn. 12.25. See Art. 2.21 PICC; Art. 5 :104 PECL .
451 Above → para. 29 .
452 Comment on Art. 2.21 PICC; Comment on Art. 5 :104 PECL .
453 Comment on Art. 5 :104 PECL .

4. Interpretation of general terms and conditions

454
Overall, the interpretation of general terms and conditions is governed by the general rules of the Convention.
However, it is often considered inappropriateto take into account the individual will of the user under Article 8 (1) .
455 456
Of particular importance, however, is the rule of interpretation contra proferentem ; However, the more wi‐
457
despread the related conditions are, the less this applies. In the case of particularly widespread standard terms
458
and conditions, court decisions on specific clauses must be taken into account in the interpretation. Overall, Ar‐
ticle 8 thus also has the function of controlling the content of general terms and conditions to a certain extent; the‐
refore, the provision also displaces those national rules on the interpretation of general terms and conditions
459
which are functionally related to controlling the content. Article 4, sentence 2 , letter a does not apply in this re‐
spect because of the different provision in Article 8. In designing their content control, the Contracting States must
rather take into account their obligations under international law, which are specified in the limits drawn by both
provisions: Within the scope of application of the Convention, the instruments of treaty interpretation cannot – bey‐
ond Article 8 – be used for the purpose of content control.
454 BGH 28.5.2014 , CISG-online 2513 Rn. 20; Wolf/Horn/Lindacher/ Lindacher Anh. to § 2 Rn. 79; Brunner/ Hurni Art. 8
Rn. 10. Overlooked by HR 28.1.2005, CISG-online 1002.
455 Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 14 ; Comment 4 to Art. 4.1 PICC.
456 BGH 28.5.2014 , CISG-online 2513 para. 21; Staudinger/ Magnus CISG Art. 8 para. 18. Above → para. 47 et seq.
457 Schlechtriem/ Junge , 3rd edition 2000, Art. 8 Rn. 9.
458 Above → para. 40 .
459 AA Teklote , pp. 156–159; Wolf/Horn/Lindacher/ Lindacher Annex to Section 2, marginal no. 79. On the suppression
of national transparency requirements, see above → marginal no. 47 .

IX. Treatment in the procedure

1. Legal or factual question

In many cases, the differentiation between legal and factual questions is important for the procedural treatment of
contract interpretation : This can determine, for example, whether the decision on the interpretation is assigned to
460
the judge or the jury . The demarcation is also important for the admissibility of legal remedies limited to legal
461
questions, such as revision or appeal in cassation: For example, the Dutch Hoge Raad examined an appeal
462
court decision on interpretation only with regard to its onbegrijpelijkheid and rejected this in the negative. The
Swiss Federal Supreme Court has refused to review findings on the real intention of a party, but has classified the
question of whether this intention must be recognised and understood by a reasonable third party as a question of
law and thus made it subject to review by the Federal Supreme Court;it has considered factual findings on the cir‐
cumstances relevant under Article 8 III to be binding for itself. 463 Ultimately, the question behind this is the extent
of the international treaty binding nature of the contracting states and, specifically, whether the convention interfe‐
464
res with the procedural division of tasks between individual states. Although this is fundamentally to be denied,
465,
and the interpretation of the contract is predominantly classified as a question of fact, the efficient implemen‐

tation of the Convention requires full consideration of the interpretative material provided for in Article 8( III) and
its adequate verifiability. In any case, the interpretation – including of foreign language texts – is the task of the
466
judge and not of experts.
2. Burden of proof
467,
The burden of proof, which is generally addressed by the Convention when interpreted in accordance with Arti‐
468
cle 8 I, applies to the person making the declaration, both with regard to his will and its unmistakability. This is
469
usually also linked to corresponding burdens of presentation or explanation. On the other hand, the interpreta‐
tion under paragraph 2 and the circumstances under paragraph 3 maintain the basic rule that the burden of proof
470
lies with the party to whom they are favourable. The evaluative assessment of the statements and their circum‐
471
stances, however, is a question of law and therefore not subject to proof. The judicial assessment of evidence
in the sense of the evaluation of the probative value of the evidence offered is – within the limits set by Art. 8 III –
472
not regulated by the CISG and is governed by the procedural law of the lex fori .
460 Calzaturifico Claudia v. Olivieri Footwear Ltd. , U. S. Dist. Ct. (S. D. N. Y.) 6.4.1998, CISG-online 440 = 1998 WL 164, 824
(interpretation as a question of trial ); Honnold/Fletchner Art. 8 Rn. 110.
461 OGH 9.3.2000, CISG-online 573 (binding of the OGH to the first instance findings regarding the interpretation); BGer
23.9.2013, CISG-online 2560 No. 3.2.1 (on Art. 105 II BGG ).
462 HR 7.11.1997, CISG-online 551.
463 BGer 5.4.2005, CISG-online 1012 E. 3.2, 3.4; BGer 23.9.2013, CISG-online 2560 Nr. 3.2.2.
464 Honnold/Fletchner Art. 8 Rn. 110.
465 Calzaturifico Claudia v. Olivieri Footwear Ltd., U. S. Dist. Ct. (S. D. N. Y.) 6.4.1998, CISG-online 440 = 1998 WL 164 824;
OGH 9.3.2000, CISG-online 573; BGH 11.12.1996, CISG-online 225; HR 7.11.1997, CISG-online 551.
466 For the division of tasks, see OLG Stuttgart 15.5.2006 , CISG-online 1414.
467 See, for example, Federal Court of 16 July 2012, CISG-online 2371 no. 8.1; Higher Regional Court of Zurich 10 Febru‐
ary 1999, CISG-online 488; Higher Regional Court of Zurich 25 June 2010, CISG-online 2161 no. 4.2.7; above Ferrari →
Art. 4 para. 48 ff.; Antweiler , p. 197 et passim ; Henninger , 181 ff.
468 HGer Zurich 17.9.2014, CISG-online 2656 No. IV. 5.1.2.2; Ferrari IHR 2003, 10 (15); Staudinger/ Magnus CISG Art. 8
Rn. 31; Witz/Salger/Lorenz/ W. Witz Art. 8 Rn. 5 . Only the latter is addressed by T. M. Müller , p. 53.
469 For example, HGer Zurich 25.6.2010, CISG-online 2161 No. 4.2.12 (lack of evidence regarding the intention to
declare).
470 T M. Müller , p. 50; Staudinger/ Magnus CISG Art. 8 Rn. 31; in substance also OLG Koblenz 31.1.1997 , CISG-online
256; and KG Zug 2.12.2004, CISG-online 1194 No. 3.1 (for practices with significance for the interpretation). Too un‐
differentiated, however, HGer Aargau 26.11.2008, CISG-online 1739 No. 6.2.1.3.1 (burden of proof for alleged contract
content).
471 T. M. Müller , p. 48. For the division of tasks between the court and the expert in this context, see KG Zug 21.6.2004,
CISG-online 1213.
472 Retrieved 16 July 2012, CISG-online 2371 Nr. 3.4.

X. Comparison with the German-speaking legal systems

For German law, the interpretation according to Art. 8 corresponds in principle to that according to §§ 133 , 157
BGB . In German law, too, the recognizable real will of the contracting parties is primarily decisive, § 133 BGB . If
this is not recognizable, the understanding from the point of view of the objective recipient of the declaration is de‐
cisive. According to § 157 BGB, contracts under German law are to be interpreted as good faith and with regard to
commercial practice require. When it comes to the question of the effectiveness of general terms and conditions,
however, the special features of general terms and conditions control according to §§ 305 ff. BGB must be taken
into account in German law. In German law, the inclusion and content control are expressly standardized by law
even for commercial transactions. In the B2B area, control is not possible to the same extent as in the B2C area, §

310 I BGB , but the evaluations and regulatory content of the clauses excluded there can be indirectly taken into ac‐
count via § 307 I , II BGB . Section 305 of the German Civil Code (BGB) applies to inclusion .
Subjective and subsidiary objective interpretation take place in Swiss law according to Art. 18 OR and are similar to
the regulations mentioned in the UN Convention on Contracts for the International Sale of Goods. The legal regula‐
473
tion deals with the interpretation of contracts, but is also applied to the interpretation of individual declarations.
Subjective interpretation of the contract aims at determining the real intention and is based on the assessment of
474
evidence, which is fundamentally beyond the review of the Federal Court. The objective interpretation based on
the principle of trust is also regarded by the Federal Supreme Court as an investigation of a presumed will of the
475
parties and is therefore only applied if the will of the parties cannot be ascertained. What is decisive is how the
statements could and should have been understood according to their wording and context as well as the overall
476
circumstances. The Federal Supreme Court examines this objective interpretation of declarations of intent
upon appeal as a question of law, whereby it is in principle bound by the findings of the cantonal judge regarding
477
the external circumstances and the knowledge and intention of the parties involved. A judicial amendment to
478
the contract may also be considered. The subsequent conduct of the parties may be used to draw conclusions
479
about the content of the contract and also for the interpretation of the contract concluded earlier. There is no
480
general limitation of the means of knowledge.
481
A general terms and conditions check is not explicitly standardized in Swiss law for commercial transactions, ,
482
however, takes place according to a four-stage model developed in case law and doctrine, whereby the inclu‐
sion control – even insofar as it represents a covert content control – is given a much greater weight than in Ger‐
483
many. An inclusion that is examined within the framework of the so-called validity control, is also carried out
here via corresponding declarations of intent; however, whether these exist is determined according to the
484
principle of trust. Different language versions of the general terms and conditions are not foreign to Swiss law
either – similar to the CISG, however, there is extensive freedom of language here; only unusual languages can be
considered unreasonable. However, at least the general terms and conditions formulated in the negotiation and
485
contract language are reasonable. Surprising clauses can also be controlled under Swiss law according to the
non-statutory “unusuality rule”; unlike in the UN Convention on Contracts for the International Sale of Goods, under
Swiss law only the weaker, economically inferior party may invoke this rule, so that surprising clauses do not be‐
486
come part of the contract.

In Austria, interpretations of declarations and contracts take place according to the rules of §§ 914 – 916 ABGB .
487
According to this, the "intention of the parties" is decisive for the understanding of the contract, whereby the
practice of fair dealing must be taken into account as a corrective. The intention of the parties means the will of
the declarant or of the contracting parties, which is recognizable to the opponent of the declaration and accepted
488
by him without objection. A reference to fair dealing is made in the alternative and refers to the circumstances
489
of the declaration as well as to the customs and practices existing in legal transactions. Beyond the limits of
the wording of declarations or contracts, a supplementary interpretation may be considered, particularly to esta‐
490
blish and specify secondary contractual obligations. § 915 contains a statutory version of the rule of ambiguity.

In Austrian law, the general terms and conditions are also controlled according to the ABGB. Here, too, the inclu‐
sion takes place via a corresponding consensus between the parties. The agreement can be made expressly or im‐
plicitly according to § 862 ABGB , whereby commercial customs must also be taken into account. The contents of
491
the general terms and conditions are binding in commercial transactions. can be checked ex post by courts for
violations of laws such as § 864a or § 879 III ABGB or for general violations of common decency, § 879 I ABGB
.The validity check, i.e. the review of hidden, surprising clauses that disadvantage the contracting party, is regula‐
ted in § 864a ABGB . It is noteworthy that according to § 915 ABGB , unclear clauses are interpreted to the detri‐
ment of the user. A content check takes place according to § 879 III ABGB , whereby gross disadvantages for the
contracting party are not permitted.
473 BGer 11.2.2010, 4A_575/2009, No. 2.2; Huguenin , para. 274. On the interplay between contract interpretation and in‐
terpretation of the individual declarations, see Huguenin , para. 282.

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