De la inclusión laboral

As the above discussion suggests, ascertaining the true intention of the parties is the "key stone" in the understanding and application of article 8. The first question the courts would ask is, What is each party's understanding of the statements or conduct of the other party? The court in M. Caiato Roger v La Societe

Francaise de factoring international factor France SA [714] looked at the prolonged dealings between the parties and found it impossible for the seller to deny knowledge that the goods were destined for the French market and hence had to comply with French marketing regulations.[715] The Oberlandesgericht [Appellate Court] München applied article 8(1) in the correct way. The German buyer insisted that he could pay a reduced price as arranged in the contract. However, the court noted that by ordinary interpretation the parties had agreed to a discounted payment only if the buyer met certain terms. As he failed to do so, the full price became due.[716]

Not all intentions are expressly stated. Silence can also amount to an expression of intent. Article 8(1) not only includes statements made, but also conduct by parties as constituting intent. A Swiss decision illustrates this point.[717] A German supplier filled an order for a Swiss buyer regarding a summer cloth collection. Because the buyer did not pay on time the seller did not supply the winter collection. The purchaser, after part payment, sent a letter to the seller setting out a payment schedule for the outstanding amount as well as delivery dates for the winter collection. The seller refrained from delivering and was sued for damages arising from the failure to deliver the winter collection. The question was whether the seller's silence constituted an acceptance of the content of the letter. The court inquired into the intention of the parties and found that silence in this case did not constitute acceptance of the amendment to the contract.[718] The other party, that is, the Swiss buyer, must have been aware that through silence the seller did not accept the variations as proposed by the buyer. In other words, the buyer could not have been unaware of the true intention of the seller.[719]

Silence is an excellent example to illustrate the point of "true intent". In Ste Calzados Magnanni v. SARL Shoes International [720] the buyer placed an order for shoes but the seller denied ever having received such an order and furthermore relied on article 18(1) which states that silence "does not in itself amount to acceptance." Article 18 through its terminology does not indicate that silence as such is always insufficient. "In itself" indicates that unless otherwise shown silence does not constitute acceptance. The court therefore again looked at article 8 and found that the practice in previous years indicated that the seller always fulfilled the orders without formal acceptance. In addition, the seller was asked to manufacture samples and he was left with the original material in his possession.[721] The court found that this fact alone should have prompted the seller to question the buyer how an absence of an order should have been interpreted. Such an obligation is founded on the general principle of good faith pursuant to article 7(1).

Silence as such is a part of several articles notably 14 and 18. Article 14(1) allows for indications of silent

intentions (stillschweigende Festsetzung). The Austrian Supreme Court noted that price, quantity and character of goods can be ascertained by "a reasonable person similarly situated" through a construction of the objective intent pursuant to article 8(2).[722] Silence as expressing the intent of parties in relation to the offer and acceptance of a contract can be summarized though by Inta SA v MCS Officina Meccanica S.p.A,[723] where the Argentine judge noted:

"It is certain that in this framework the Convention provides that silence or inactivity in itself will not constitute acceptance, but in this case there were repeated acts that were taken to conclude the contract and, by the standards discussed above ... there was no disagreement with the clause and, even less, abuse of a dominant position by one party over the other."[724]

The interaction between article 7 concerning good faith and article 8 is highlighted in the above cases. The conduct of the parties is measured on the principle of good faith and hence plays a role in the elaboration of the courts on the true intent of the parties.

The conclusion of a Swiss court explains the interaction between article 8 and good faith.[725] A company and its subsidiary bought for many years granular plastic from a French seller. The subsidiary company was incorporated into the overall structure of the parent company and renamed. Employees of the old subsidiary still ordered material under the old company name. The new company, which in effect was the buyer, claimed that it was not liable. The court ruled that article 7 concerning good faith had to be applied and in all the circumstances, pursuant to article 8, the buyer was liable to pay for the purchases.[726] The reason given was that the buyer could not have been unaware of the seller's intentions.

An important area where the intention of the parties is not always easily to ascertain is found in the inclusion of general terms and conditions into contracts. Schlechtriem in a lecture pointed out that:

[As the CISG lacks] provisions on the control on standard form contracts, I think the one tool that may come to grips with standard contracts is Art. 8(2). It enables the court to ignore fine print, which is

contradictory, vague, or difficult to understand by using a "reasonable person similarly situated" standard. And it is also possible that fine print in a language which under normal circumstances could not be

expected to be understood by the other party will not determine the content of the contract."[727] Schlechtriem alludes to two points namely the treatment of standard form contracts and the choice of a foreign language.

The mere fact that by mutual consent a foreign language has been chosen does not in itself bring article 8(2) into play. It is settled law that there is an obligation on the other party to have the contract translated. If in doubt, the principle of good faith would dictate that the party in question would ask for clarifications from the other party or gain understanding through expert translations. A party who agrees to contract in a particular language is bound generally not only by the standard form terms but also by an expectation that the language is understood.[728] Schlechtriem also argues that a term in a foreign language cannot necessarily be relied upon if the choice of communicating a term in a foreign language is unilateral.[729] Again, the principle of good faith as well as the reasonable person test pursuant to article 8(3) will determine this issue.

As far as the inclusion and treatment of standard terms and conditions is concerned, the matter appears to be settled. The Oberlandesgericht [Appellate Court] Zweibrücken confirmed the views held by Schlechtriem. It noted that the CISG does not provide specific requirements for the incorporation of standard form contracts. "Whether such terms become part of the contract must be determined by the application of article 8."[730] The court tested the subjective intent first and found that there were no negotiations, which could have helped to establish the subjective intent. Recourse to article 8(3) also established that there was no prevailing customary practice. Therefore the objective intent could not be established. As far as the validity of the exemption clause was concerned the court relied on article 4 and decided the matter by having recourse to national law.[731] A decision by the Kantonsgericht [District Court] Freiburg is relevant. It stated that the rules in article 8 coincide with corresponding principles under German and Swiss domestic law.[732] As seen above this observation is correct and the court noted that the rules correspond to "principles" and not "rules" of domestic law. If we assume that the choice of words was deliberate it would indicate that the court was aware of the autonomous mandate of the CISG. However the court further noted that if the subjective or objective intent of the parties cannot be established "the intent of the parties has to be elicited in accordance with the principles of Swiss domestic

law."[733] This is rather puzzling. If, on one hand, the principles of the CISG and Swiss domestic law correspond with each other, one principle cannot solve the problem if the other one cannot. Hopefully, the possibility of a problem in translation contributed to such a mistake. One would assume that the court said that as no intent could be established, the principles of validity, which are not governed within the CISG, make it mandatory to invoke Swiss law.

What then is the mandate of article 8? The Landgericht [District Court] Heilbronn pointed to the fact that article 8 is not only concerned with communications. The question is what can a reasonable person in the same

Landgericht [District Court] Zwickau put it similarly by pointing out that in a communication between parties "the wording was clear and unambiguous and furthermore the meaning given to the words corresponds with those a 'reasonable person' would attribute to those words."[735] Such intent is in line with the desire of the CISG to keep the contract afoot as long as there is a possibility to perform contractual obligations. This principle conforms with the attempt of uniform laws to overcome problems of distance, expense and time to have a contract

terminated where in fact a contract can be executed if the principle of good faith is applied.

Article 8 seeks to direct the courts or tribunals to take into consideration the actual intention of the parties. This is manifest in article 8(1) where it is stated that "statements made by and other conduct of a party are to be

interpreted according to his intent."[736] Failing this, the court will establish the objective intent of the parties pursuant to article 8(2) Such mandates do not pose any problems as seen by the above jurisprudence.

Article 8(3) however does need further careful analysis. This article has recognized that to establish the intent of a party certain tools or events must be consulted such as the negotiations, any practices the parties may have

established, usage as well as subsequent conduct of the parties.[737] The intention of this article is to find out the state of mind or the belief of the parties in relation to the execution of their contractual obligations. The ICC Court of Arbitration correctly connected article 8(1) to 8(3).

"When parties have concluded a contract ... the agreement of the parties has to be analyzed in first instance by interpreting the wording of the contract itself. According to art. 8(3) ... usages of trade constitute

guidelines only to establish what a reasonable person had to understand in view of the wording of the contract."[738]

8. Article 9

Through the application of establishing usage, article 8 is linked to article 9 which states that:

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

"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in

international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned."[739]

Usage is defined in two ways. Article 9(1) points to the usage and practices which parties have established between themselves which means practices which will influence a parties perception of the other's intent. The court in Societé Harper Robinson v Societé Internationale de Maintenance et de Réalisations Industrielles (SMRI) et autres [740] took into consideration that the seller had been supplying the buyer for a long time without

showing any concerns for his insolvency. Therefore, the other firm established pursuant to article 9 a long- standing practice.[741] There is, however, an important overlap between article 8(1) and article 9. Article 8 regulates "other conduct" whereas article 9 directs the court to take usage into consideration. Usage denotes an ongoing activity thus creating a habit whereas conduct is linked to a "once only" occurrence. It can be argued that the difference between usage and conduct is only a semantic one and is of no practical value. This may be so but it is still necessary to appreciate that there is such a difference, despite the fact that the outcome does not differ. To illustrate this point, a German decision is relevant.[742] The seller entered into negotiations over the lack of conformity and discussions were held over the amount of damages and the manner in which damages had to be paid. These negotiations were conducted over a period of 15 months and the buyer did not reserve the right to rely on article 38 and 39 of the CISG. The court relied on article 8 to note that the sellers' conduct could only indicate that he would not at a later stage rely in his defense based on articles 38 and 39.[743]

The Supreme Court of Austria combined the requirements of article 8 with article 9 and illustrated how that particular relationship works. The parties initially intended to enter into a "basic skeleton agreement" containing the general conditions, which would constitute the trade usage between the parties.[744] However they could not

reach an agreement. Nevertheless, a singular contract went ahead with the conditions that a letter of credit had to be obtained and that the goods were not to be sold in the "Benelux" countries.[745] The court made the

observation in line with established jurisprudence that the CISG does not have special provisions regulating the inclusion of general conditions of sale. Article 8 will rule on this matter but the notice

"to include general conditions of sale which are not part of the offer, has to be so explicit that a reasonable prudent person from the perspective of the recipient can understand this notice."[746]

Deviations from this observation are possible if the parties have developed customs between themselves, which implicitly explain the intent of the parties. The question arose whether the conditions in the attempted negotiations of a skeleton contact apply to the single contract in question. The court, relying on article 8 and 9, rejected such a conclusion. The mere allusion to "usual conditions" does not mean that the buyer was referring to the general conditions of sale of the seller which were discussed in the framework of the skeleton contract which was

ultimately not agreed upon.[747] The buyer therefore could not know and it could not be assumed that he ought to know that the seller intended to make his conditions the basis for subsequent contracts. Furthermore, pursuant to article 9 there were no customary practices evident between the buyer and the seller, which could shed any light on the true intent of the parties.

So far attention has been focused on the application of article 8 and 9 but it must be said that the sophisticated grasp of international uniform laws does not end with an understanding of applicable articles. An understanding of the purpose of the CISG as a whole will also influence any outcomes. The focal point is the contractual obligations of the parties. In sum, we need to be reminded that:

"... where the provisions of the contract and of [custom] do not provide specific answers, the rules of the Convention and in a subordinate way, rules of its underlying principles and, even in a more subordinate way, the rules of [domestic] law are determining for defining the mutual obligations of the parties based on their contract."[748]

The above observation demonstrates a sophisticated understanding of the methodology required to interpret and apply international instruments such as the CISG. It must be added that "under the rules of the Convention," article 7 is the most important one since without it, the Convention could not stand uniform. The treaties and declarations of the EU do not contain interpretational instruments but rather rely on a supranational court, the European Court of Justice. As the CISG has no such body, reliance on article 7 must take on that function. Article 7 arguably goes beyond a mere instrument of interpretation - it is actually taking on metaphorically the mantle of a supranational tribunal or court.

The hypothesis of this thesis implicitly includes such a notion and it appears that courts and tribunals have viewed the importance of article 7 and 8 in such a light. This statement is based on the jurisprudence available, which supports the thesis that courts interpret the CISG uniformly without taking recourse to domestic law. Mistakes in the application of the CISG are a result of inexperience and appear in cases which require a more sophisticated approach. In simple cases, there is no deviation from the hypothesis of this thesis. In support of this statement, we need only to look at the jurisprudence of the first cases in each country to understand that the judiciary is not "tuned in" to the international methodology. Canada, Australia and the United States provide excellent case studies. To illustrate this point the parol evidence rule will be discussed below in detail.