Matriz de análisis

The first observation of the parol evidence rule is that there is no uniform international rule in existence. The rule varies between Australia and the Unites States and even within the United States it is not uniform. In the United States, it has both statutory and varied common law manifestations and is either expressed in the Uniform

Commercial Code article 2 or the Restatement (Second) of Contracts.[749] These facts alone appear to justify the argument that it is difficult to maintain that the parol evidence rule conforms to the international uniformity rule of article 7. More to the point, such observations would lead to the conclusion that unified laws should replace the parol evidence rule.

The parol evidence rule in identifying the content of a written contract determines which evidence is applicable in the circumstances. "The Corbin approach instructed courts to look at all relevant evidence surrounding the

agreement to decide whether the parties actually intended the writing to be complete and exclusive."[750] The crucial point, it appears, is that the courts must determine whether the writing is a partial or a complete integration or statement of the contract.

a. Developments in the United States Courts

In Beijing Metals & Minerals Import/Export Corp. v. American Bus. Ctr. Inc.[751] (Beijing Metals), the court presumed that the writing evidencing the contract was intended to be a complete and final statement of the contract. This decision contradicted the one reached in Filanto SpA v. Chilewich Int'l Corp.[752] One of the parties in Beijing Metals claimed that they were also relying on oral terms that were not included in the agreement. The parol evidence rule would lead to the conclusion that the oral terms, even if proven, are not applicable and only the written contract is of significance. The Beijing Metals court invoked the parol evidence rule ignoring article 8(3). MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.P.A.[753] (MCC- Marble) took a completely different view. MCC-Marble's opinion

"reveals a court striving to transcend its background in domestic U.S. law, energetic in pursuing an international perspective on the Convention's meaning, and informed, thoughtful and coherent in its grasp of CISG provisions and their meaning."[754]

The court stated that, "contrary to the result of the objective approach which is familiar practice in United States courts,"[755] the CISG appears to permit a "substantial inquiry into the parties' subjective intent, even if the parties did not engage in any objectively ascertainable means of registering this intent."[756] The court rejected the Beijing Metals opinion as not being particularly persuasive. In MCC-Marble, the judge made it perfectly clear that article 8(3) "trumps" the parole evidence rule. The clearest indication is expressed in the following statement:

"Moreover, article 8(3) of the CISG expressly directs courts to give due consideration ... to all relevant circumstances of the case including the negotiations ... to determine the intent of the parties. ... article 8(3) is a clear instruction to admit and consider parol evidence regarding the negotiations to the extent they reveal the parties' subjective intent."[757]

The jurisprudence of article 8 has shown that most cases need determination in relation to standard form

contracts, lack of knowledge of foreign language, silence and the elucidation of subjective or objective intent of the parties. MCC-Marble exhibits all the problems except silence. To speculate as to the outcome in MCC- Marble, taking the international jurisprudence into consideration, it is foreseeable that foreign language problems are dismissed as not relevant but that the negotiations would be treated as establishing subjective intent. Failing that, objective intent would need to be established.

Before MCC-Marble was decided, an interesting attempt was made to show that the parol evidence rule actually "is essentially an expression of the CISG article 8 and serves the international uniformity goal of article 7."[758] If what Moore contend is true then indeed the parol evidence rule should be applied. Furthermore MCC-Marble would be incorrect in its ruling. However, the contentions have not only been rejected by scholars, but the court in MCC-Marble itself noted that the contentions as expressed by Moore are incorrect. The argument was that the parol evidence rule serves and complies with international uniformity. It has been weakened by Moore in his statement that "unfortunately the United States version of the rule is not uniform."[759] It is irrelevant whether the United States' version of the parol evidence rule is the only one which is not uniform. The fact remains the same, namely that the parol uniform rule is not internationally uniform and hence is not fulfilling the mandate of article 7. What is meant by this argument is that the parol evidence rule due to its diversity is not and cannot be

considered as being a universally acceptable principle. As stated previously, principles that are universally

acceptable are "a-national" that is not belonging to a defined system of law but used by all. As such, uniformity is of the essence.

Another point to be considered is what happens if a particular domestic law does not recognize the parol evidence rule within its domestic system? It is obvious that international uniformity cannot be achieved. Such an argument

presupposes that the parol evidence rule is different from the rule prescribed in article 8(3). It can be taken as a given and will be explained further below that there is a difference. Moore notes in his argument that article 8(3) admits extrinsic evidence consistent with the parol evidence rule. However, he goes on to argue that alternatively, the parol evidence issues are not expressly settled but as a gap filling conform with general principles of the CISG.[760] The question is how can there be two alternatives to the same debate, which supposedly needs to confirm uniformity in the application of the CISG? In the end, Moore is defeated by the simple fact that "a wide number of other States party to the CISG have rejected the rule in their domestic jurisdiction."[761] Moore is only left with one argument, that there is a gap in article 8(3) which needs filling, and the CISG allows the application of domestic law to fill such a gap. In this case, parol evidence can fill that gap. Moore linked that argument to the words of "due consideration" within article 8(3). However, the argument is false as the CISG needs to be

interpreted within the "Four Corners" of the Convention and not with domestic interpretative tools in mind. Such a tool being the literal interpretation. If we read "due consideration" within the context of the CISG many linkages to principles can be discovered such as good faith and the "reasonable person test" embedded within article 8 itself.

b. The Court Ruling in MCC-Marble

MCC-Marble is important because most of the contentious issues governed in article 8 had to be ruled on in this case. In brief, the President of MCC-Marble negotiated at a trade fair with D'Agostino. The negotiations took place in Italian with the help of a translator, as the American buyer did not speak any Italian. The documentation included the standard form clauses in Italian. The buyer did not request a translation and signed the contract. The signing took place after the parties agreed orally on price, quantity and other key terms. Printed in Italian beneath the signature of the buyer was a clause stating that the buyer was aware and approved of the clauses printed on the reverse side of the order form. In the months that followed MCC-Marble submitted several orders using the Italian order form.

The court predictably dispensed with the argument of signing a document containing terms in a foreign language by stating:

"We find it nothing short of astounding that an individual ... would sign a contract in a foreign language and expect not to be bound simply because he could not comprehend its terms. We find nothing in the CISG that might counsel this type of reckless behavior and nothing that signals any retreat from the position that parties who sign contracts will be bound by them regardless of whether they have read them or understood them."[762]

This opinion mirrors those in international jurisprudence as well as academic writing. It appears that the above views are settled law not only in the CISG but in all other legal systems as well.

The court noted and agreed with the magistrate judge's report that "no interpretation of the contract's terms could support the buyers position."[763] However the Circuit Judge correctly pointed out that the CISG allows an inquiry into the parties' subjective intent even if the parties did not "engage in any objectively ascertainable means of registering this intent."[764] The whole purpose of article 8 in simple terms can be narrowed down to the above observations. It follows therefore that there has to be a difference between domestic law and international law in ascertaining the intent of the parties.

The MCC-Marble decision is also remarkable as the Circuit Judge recognized the importance of the CISG and its implementation by courts.

"One of the primary factors motivating the negotiation and adoption of the CISG was to provide parties to international contracts for the sale of goods with some degree of certainty as to the principles of law that would govern potential disputes and remove the previous doubt regarding which party's legal system might otherwise apply. Courts applying the CISG cannot, therefore upset the parties' reliance on the Convention by substituting familiar principles of domestic law when the Convention requires a different result. We may only achieve the directives of good faith and uniformity in contracts under the CISG by interpreting and applying the plain language of [its articles]."[765]

It is obvious that the mandate of article 7 has been recognized. Such views support the argument that courts do take note of the mandate of article 7 rather than take recourse to domestic law. The fact that some errors will be noted such as in Beijing Metals is inevitable and can be viewed as "teething problems" in the introduction of a law which does require some change of one's "mind set" and training.

The international legal methodology, which is necessary to interpret the CISG has been recognized and MCC- Marble certainly did not fall into the trap of Delchi Carriers, which despite proclaiming to follow international methodology quoted exclusively common law authorities.[766] In this regard, it is significant that the court also consulted and cited treaties by scholars from outside the Anglo-American tradition.[767] It is also interesting to observe that the court in a footnote noted that they also searched for foreign case law. In so doing they also noted that:

"the parties have not cited us any persuasive authority from the courts of other States Party to the CISG. Our own research uncovered a promising source for such a decision at [an internet site]."[768]

This decision therefore forms a solid foundation to further interpretations of the CISG in the Anglo-American legal tradition as it is built on the recognition of the importance of article 7. It must be acknowledged that it is not easy for a court trained and indoctrinated by domestic law to suddenly embrace a new methodology not only in an interpretive sense but also in substantive law. The fact that under article 8(1) a shared subjective intent is binding despite the fact that the parties signed documents, which show the contrary intent. Furthermore, such subjective intent is not "blocked by that ancient pillar of common law tradition, the parol evidence rule."[769] However, it should also be noted that the parol evidence rule is merely a particular way of ensuring that the parties' intentions as stated in or as elicited from the written contract are binding.

Article 8(3) is an expression of party autonomy pursuant to article 6. If an agreement contains a properly drafted merger clause stating that the written contract contains all prior agreements and understandings article 8(3) would not be applicable as the intent of the parties is a subjective one and hence contained in article 8(1).

The court in MCC-Marble raised an important point about the limits of the CISG that the Convention is only applicable to rule on substantive questions of law but not on procedural ones. "[A] Federal district court cannot simply apply the parol evidence rule as a procedural matter ... regardless of the source of the substantive rule of decision."[770]

CHAPTER 8