Zeller, Bruno (2002) Determining the contractual intent of parties under the CISG and common law - a comparative analysis. European journal of law reform, 4 (4). pp. 629-643. ISSN 1387-2370

Abstract

This paper will investigate how the mutual contractual obligations of parties are determined. The intent of parties is regulated in Article 8, which states: (1) For the purposes of this Convention statements made by other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what the intent was. (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. (3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usage and any subsequent conduct of the parties. It will be argued that Article 8 touches on subtle and difficult issues, especially as some domestic doctrines need to be reviewed or abandoned. Great care must be taken to isolate and discard principles within domestic law which are not compatible with the interpretation of Article 8. For this reason, a comparison of the interpretation and application of the principle of intent between the CISG and common law, in particular the principle of mistake, is used to point to different methods and approaches. A complete understanding of intent also requies knowledge of at least one or two approaches in civil law. For comparative reasons, only Swiss and German legislation is looked at to discover a possible "common" approach to the application and interpretation of intent. It must be noted that the purpose of this paper is to investigate the "teasing out" of the intent of parties and hence to construct the contract. Thereforce, the common law principle of mistake is only viewed from that point of view.

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