Interpretation, Gap-Filling and Further Development of the U.N. Sales Convention

Pace International Law Review Volume 16 Issue 2 Fall 2004 Article 2 September 2004 Interpretation, Gap-Filling and Further Development of the U.N. Sales Convention Peter Schlechtreim Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Peter Schlechtreim, Interpretation, Gap-Filling and Further Development of the U.N. Sales Convention, 16 Pace Int'l L. Rev. 279 (2004) Available at: https://digitalcommons.pace.edu/pilr/vol16/iss2/2 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . INTERPRETATION, GAP-FILLING AND FURTHER DEVELOPMENT OF THE U.N. SALES CONVENTIONt Peter Schlechtriem* translation by Martin Koehler** 281 I. Preliminary Remarks .............................. accordance in II. Interpretation of the Convention with Article 7(1) and Documentary Sales 282 Contracts .......................................... A. Delivery by Means of Documents .............. 282 285 1) First Case ................................. 285 2) Second Case ............................... 288 3) Third Case ................................. B. Sales of contracts as Sales of Goods: 289 Article 7(1) .................................... "International 1) Principle of Interpretation: Character" - Ban on Recourse to Domestic t Editor's Note: Foreign source citations are based upon the author's recommendation. The Pace International Law Review adheres to The Bluebook Uniform System of Citation, but the Law Review has created uniform citations for certain sources not addressed by the Bluebook. Moreover, with respect to foreign sources for which the Law Review was not provided an English translation, the editors have relied on the author for the veracity of the statement drawn from such sources. * This is a translation and adaptation of the text "Auslegung, Liickenfililung und Weiterentwicklung" read at a symposium in honor of Professor Dr. h.c. Frank Vischer in Basel, May 11, 2004. For the symposium presentation, see http://cisgonline.ch/cisg/SchlechtriemSymposium-Vischer.pdf. The author Peter Schlechtriem, Dr. jur. (U. of Freiburg), Dr. h.c. (U. of Basel), Dr. h.c. (U. of Tartu), M.C.L. (U. of Chicago) is Professor Emeritus of the University of Freiburg, Germany, and is at present Head of the Center of Research on the Unification of the European Law of Obligations at the University of Freiburg. ** The author thanks Martin Koehler for having provided a first translation. He is deeply indebted to his colleague Professor Albert H. Kritzer, Pace University School of Law, N.Y., for his continuous, patient review of the various draft translations and for his many helpful suggestions and proposals in regard to the subject matter of the topics dealt with in this article. 1 280 PACE INT'L L. REV. [Vol. 16:279 Concepts; Example: "Good Faith and Fair Dealing" in German Law .................. 289 2) Principle of Interpretation: "To Promote Uniformity" - Stare Decisis? ... . . . . . . . . . . . . 290 3) Principle of Interpretation: "Observance of Good Faith in International Trade" ....... 290 III. Gap-Filling in Accordance with Article 7(2) CISG . 291 A. Delim itations .................................. 291 B. Gaps and Principles ........................... 292 C. Example One: Additional Seller Obligations (Ancillary Obligations) ......................... 293 D. Example Two: Breach of Service Obligations covered by the CISG under Article 3(2) ........ 294 1) Non-performance .......................... 295 a) Right to require performance - subject to Article 28 ........................... 295 b) Dam ages ............................... 295 c) Avoidance of the contract? Article 49(1)(a) or (b) - additional period of time - in connection with Article 51 ... 295 d) Price reduction ......................... 296 e) Retention of the price .................. 296 2) Malperformance of services ................ 296 a) Duty to give notice? .... . . . . . . . . . . . . . . . . 297 b) Cure - limits in terms of Article 46? ... 297 c) Avoidance of the contract? .. . . . . . . . . . . . 297 E. Example Three: Right of Retention, e.g., Buyer's Right to Refuse Payment .............. 298 1) Gap-filling ................................. 298 2) Proposals .................................. 299 a) Prerequisites ........................... 300 b) Defense or objection .................... 300 c) Consequences .......................... 301 3) The buyer's right of retention when there is a tender of non-conforming goods or documents as a functional equivalent to the so-called "perfect tender" rule? . . . . . . . . . 301 a) Withholding of the purchase price ..... 303 b) Refusal to take delivery of nonconforming goods ....................... 303 https://digitalcommons.pace.edu/pilr/vol16/iss2/2 2 U.N. SALES CONVENTION 2004] Refusal to take up non-conforming docum ents ............................. IV. Final Rem arks .................................... c) I. 304 306 PRELIMINARY REMARKS The uniform UN Sales Law, the Convention on Contracts 1 for the International Sale of Goods (CISG), was compiled and adopted in its final form at the United Nations Conference in Vienna in 1980, but preliminary work and forerunners had long been in existence reaching back to the 1930s and to the first drafts drawn up by Ernst Rabel for UNIDROIT, the Institute for the Unification of Private Law in Rome. Thus, it is no surprise that the Convention, like national codifications, is beginning to show symptoms of aging. This is partly due to technical and economic developments, which could not have been foreseen at the time the Convention was drafted - such as electronic commerce - and partly due to misjudgment of the practicality of certain provisions and their consequences. In particular, the acceptability of certain provisions of the CISG in countries with different basic structures of commercial law may have been overestimated, so that perhaps the resistance in England to adoption of the Convention, and the advice often given in practice to exclude the CISG's application could have been partly induced by such misjudgments as to the acceptability of 2 certain solutions and provisions of the Convention. It is, however, certainly more difficult to implement corrections to or amendments of an international Convention than it is for a national legislator to reform national law since, at the international level, the cooperation of all parties to a Convention - i.e., all of the Contracting States and their legislative organs - is necessary. In the case of the CISG, such a process can only be seen as hopeless when one considers the length and difficulty of its labor pains. One should therefore be on the lookout for Convention-internal provisions that allow for adaptation and fur1 United Nations C (...truncated)