TÉCNICAS DE PROCESAMIENTO Y ANÁLISIS DE DATOS.

Before attempting to define and clarify the mechanism of gap filling, there is one important aspect of the history of article 7 to be considered. The vote to approve article 7 was 17 in favor, 14 opposed, and 11 abstentions.[470] This shows the article contains contentious and difficult issues. It also raises another point, namely how valuable is it to consult the legislative history of article 7(2)? The vote suggests that there may have been more people who disliked the article than those who liked it. Such a view gives a better insight than the fact that more people voted in favor of the article than against it.

The conclusion is that the travaux préparatoires must be treated with utmost caution. In Fothergill and in the Vienna Convention on the Law of Treaties it has been established that history is only of importance if it reflects a general view of the participants. In such a case the views take on a function of persuasive precedent. However, in the case of article 7(2), can it be said that the views expressed in the legislative history reflect a general view? There certainly must be doubt cast on such an assumption. Without clear and authoritative historical guidelines, courts must take recourse to academic writings and jurisprudence. Yet, in this case, care must be taken that academic reasoning and the reasoning of tribunals does not displace a practical achievable view, important in the establishment of a uniform international law. Courts and tribunals often do not aspire to reach a perfect solution. They may simply contend with a practical outcome.

With this in mind, it is important not to lose sight of the mandate of article 7(1). This article sets the stage for the interpretation by promoting a uniform approach using good faith and the international character of the

Convention. In other words, article 7(1) defines the purpose and the principle of interpretation and is applied to the Convention as a whole. As such, it also includes article 7(2), which goes beyond the "big picture" and settles the problems of gap filling

In view of the mandate of article 7(2), namely to clarify the relationship between the CISG and domestic law, the hypothesis of this thesis needs to be re-examined:

"That courts and tribunals look for a solution within the "Four Corners" of the Convention in a manner contemplated by those preparing it, rather than taking recourse to domestic law. Non-compliance is an error of interpretation rather than an unwillingness to depart from domestic law."

It is also important to understand that the hypothesis is to "look for a solution," which is not only restricted to interpretation but extends to solving a problem. As discussed in Chapter 3, the problem of article 7(1) was the application of uniformity and good faith. The problem in this chapter, simply stated, is to find out how gap filling is achieved and, because of the autonomous mandate of interpretation, to explain and understand its relationship with domestic law. The solution to the interpretation of article 7(2) should be found within the "Four Corners" of the CISG.

To restate, article 7(2) describes two situations where gap filling is needed. First, if the matter is governed by the Convention but not expressly settled then a gap must be filled in conformity with general principles on which it is based. Secondly, if the matter is not covered then the gap must be filled taking domestic law into consideration. There are two reasons why a matter may not be covered by the Convention. First and most obviously, it has been specifically excluded from the sphere of application by the CISG itself such as most validity issues as provided in article 4. Secondly, changes in business methods can lead to apparent gaps. However, it should also be noted that changes in business methods do not necessarily led to gaps. Eiselen has demonstrated that e-commerce does not change the contract formation issue and the formalities required to enter into a contract.[471]

a. The Problem in Practice

The problem of applying article 7(2) can be illustrated through a "trilogy" of German decisions. The dispute commenced in the Landgericht [District Court] [472] and via the Oberlandesgericht [Appellate Court] [473] was finally settled on appeal in the Bundesgerichtshof [Federal Supreme Court].[474] The central question hinged on

the interpretation of reasonable time pursuant to article 39(2). In brief, a German seller delivered surface- protective film to an Austrian buyer. The buyer did not test the film on delivery. When he used the product he found that it left a residue of glue on the surface. The buyer notified the seller the next day of the problem but this notice was given 24 days after the film had been delivered.

As "reasonable time" is not defined in the CISG, a gap exists which needs filling. It has been recognized that "reasonableness" is a general principle of the CISG hence at first glance gap filling pursuant to article 7(2) should be achievable. The Landgericht pointed to the fact that article 39 does not set a time in which notice as to defects must be given to the seller. The court also pointed out that a time limit is alien to many domestic systems except Italy, which sets a time limit of 8 days. The court used doctrinal evidence to come to the conclusion that the term "reasonable" was a compromise in the drawing up of the Convention.[475] It must be assumed that the court concluded that travaux préparatoires were of no help except to indicate that the final article 39 was more "buyer friendly" than its predecessor. This led the court to the conclusion that one-month was appropriate with the proviso that depending on circumstances the period can be shorter.[476]

The Oberlandesgericht reversed the decision on appeal on the grounds that the notification of the lack of conformity was untimely. This Appellate Court argued that the time starts when the lack of conformity "could" have been discovered not "when" it was discovered.[477] Further the buyer ought to have undertaken a trial run to ascertain whether the goods conformed to the desired quality. The court also examined a matter, which the lower court did not take into consideration namely the negotiations between the parties in relation to the fixing of the defects. The court came to the conclusion that the negotiations pursuant to article 7(1) were in good faith and so did not impinge on the breach of article 39.[478]

The German Federal Supreme Court reversed that decision again but, unfortunately, made no comment on the decisions given in relation to "reasonable time" by the lower court. The Supreme Court found that the most important fact was the negotiations both parties had in relation to the fixing of damages. It also found that the fact of entering into negotiation amounts to implicitly waiving the right to rely on articles 38 and 39.[479]

Unfortunately, the Supreme Court did not expressly rely on article 7 - as the Appellate Court did for the wrong reasons - to substantiate the decision. It certainly is a breach of good faith that a seller can enter into negotiations to fix a defect and then turn around and deny the buyer remedies which he would have had, had he not negotiated in the first instance. However, the Supreme Court did reach the correct conclusion, unfortunately, without the appropriate explanations. By contrast, Bonell as the sole arbitrator in an almost identical case held that the seller was estopped from raising the defense of late notice pursuant to article 39. Estoppel as such is not specifically referred to in the CISG but the general principle of good faith will fill the gap.[480]

What conclusions can be drawn from the above? At first glance it can be argued that "reasonable time" is a factual question and no interpretation or gap filling is required. However, if a definition of what constitutes a reasonable time is sought, solutions can vary greatly as seen in the above three proceedings on the film case.

It can be argued that a gap exists, which needs filling, however, none of the courts indicated what method it used to fill the gap, as the courts did not refer to article 7(2). The difference between the court of first instance and the first appeal merely indicated a more sophisticated line of reasoning in determining a "reasonable time." The lower court did take a simple approach but it did take note of scholarly writings. The attempt was made to find a

solution within the "Four Corners" of the CISG, which shows that the hypothesis of this thesis is still affirmed. The Oberlandesgericht [Appellate Court] Karlsruh showed a better insight by recognizing that good faith pursuant to article 7(1) was also applicable. That court, however, showed a lack of understanding by not taking a holistic approach to the application of good faith. In the end, the German Federal Supreme Court arrived at the correct decision in relation to the case. Unfortunately, the Federal Supreme Court did not re-examine the gap-filling requirement and did not refer to the reasons of good faith to come to its conclusion.

The above "trilogy" also confirms the importance of selecting persuasive precedent from reported international jurisprudence. The above case also shows that all levels of the German court hierarchy did show a level of sophistication and knowledge in the application of the CISG.

In sum, it can be argued that it was not obvious whether the courts engaged in gap filling. They did not indicate clearly the use of the general principles nor did they show a method of applying article 7(2). It must be said that the courts did come to a conclusion but only by interpreting words within the relevant articles. The above discussion shows how difficult it is to recognize gaps in an appropriate manner in all circumstances. Courts may feel that interpretation rather than gap filling will bring about a solution to a dispute.