CISG的解释

D D. INTERPRETING CLSG The underlying goal of CISG is the creation of a uniform body of international commercial sales law. In deciding questions governed by the Convention, Article 7(2) directs a court to look to the following sources, in the following order: (1) the Convention, (2) the general prin​ciples on which the Convention is based, and (3) the rules of private international law. The Convention When the words of CISG itself require interpretation, Article 7(1) directs a court to consider (a) the international character of the Convention, (b) the need to promote uniformity in the Convention's application, and (c) the observance of good faith. Article 7(1), however, does not describe the sources the Court may—or must—use in making its interpretation. On its face, CISG implies that a court may use only the plain meaning of the language in the Convention. The plain meaning rule is common to countries whose judicial practices fol​low those of England. In England, at least until very recently, courts may deduce the meaning of legislation only from the words contained in a statute.15 In most other countries, however, including the United States and the civil law countries, the courts also look to a statute's leg​islative history—the travaux préparatoires—to determine its intent. Additionally, when an international tribunal interprets a treaty, its legislative history is commonly used both to con​firm the meaning derived from the treaty's terms and to determine the treaty's meaning when the terms are ambiguous or obscure.16 Considering the widespread general me of travaux préparatories, it seems likely that most courts will turn to it in interpreting CISG's provisions, especially as the record of the Convention's preparation is now widely available.17 ————————— 15 In 1980, the English House of Lords used legislative history in interpreting the Warsaw Convention's provi​sions on the liability of air carriers. In the landmark decision of Fothergill v. Monarch Airlines, All England Law Reports, vol. 1980, pt. 2, p. 696 (1980), a majority of opinions relied on the rules of interpretation in the Vienna Convention on the Law of Treaties (1.969). Article 32 of that treaty expressly provides for the use of "the preparatory work of the treaty and the circumstances of its conclusion" in interpreting international conven​tions. 　 In addition to travaux préparatories, courts in most countries use case law to interpret statutes and treaties.18 At present, the number of cases that have interpreted CISG are few. Undoubtedly, this will change quickly. As it does, the courts will have to keep in mind the Convention's admonitions: that CISG is an international treaty, that its purpose is to establish uniform international rules, and that the courts are bound by the principle of good faith in interpreting the Convention. Because CISG is an international treaty, the courts of many countries will interpret it. The directive that it be interpreted to promote uniformity in its application compels courts to examine and follow the decisions of the courts in other con​tracting states. The requirement to use good faith means that courts must accept foreign deci​sions as precedents and depart from them only when they are clearly distinguishable, clearly erroneous, or no longer applicable to changed international circumstances.19 General Principles CISG calls for courts to look to the general principles on which the Convention is based when interpreting its provisions, but it gives no list of general principles. It is for the courts to divine those principles. The following two have been suggested: (1) A party to a contract has the duty to communicate information needed by the other party, and (2) parties have the obliga​tion to mitigate damages resulting from a breach.20 Both concepts appear, in varying forms, throughout the Convention.21 Although CISG does not give a list of general principles, it does set out the mechanism for determining them. They must be derived (as is the case for the suggestions listed above) from particular sections of the Convention, and then extended, by analogy, to the case at hand.22 In choosing this particular mechanism, the drafters rejected the adoption of general principles derived from public or private international law, as well as from domestic law codes. This limitation on the sources that the courts may turn to in creating general principles was consciously made, and it reflects the drafters' concern for uniformity and consistency, both in the drafting and in the evolution of the Convention. ______ 16 Article 31(1) of the Vienna Convention on the Law of Treaties (1969) provides: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Article 32 adds: "Recourse may be had to supplementary means of inter​pretation including the preparatory work of the treaty and the circumstances of its conclusion, in order to con​ firm the meaning resulting from the application of Article 31, or to determine the meaning when the interpre​tation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." 17 See John Honnold. Uniform Law for International Saks under the 1980 United Nations Convention (1982); and John Honnold, Documentary History of the Uniform Law for International Sales (1989). 18 Scholarly writings (doctrine) are also widely relied on in civil law and the United States to interpret legisla​tive materials. In England, and in the countries that derive their judicial practice from England, scholarly writ​ing is generally given little weight. Because the Convention does not name the sources that courts are to use in its interpretation, this disparity will undoubtedly continue. 19The use of case law will present difficulties when different courts come to different conclusions based on sim​ilar facts. Absent the existence of a single appellate court to harmonize differing opinions, the principle of good' faith imposes on every court that is hearing a dispute the obligation to harmonize its decision with those of other courts and, where there are conflicting precedents, to harmonize the precedents. The principle of good faith that appears in CISG is apparently limited. The drafters meant that it be used only in interpreting the provisions of the Convention, and not as a loose or general obligation imposed on the parties. This is in contrast to its much broader application in the German Civil Code, § 242; the United States Uniform Commercial Code, § 1-203; and other code systems. However, one might note that the drafters of the German Civil Code also originally meant for good faith to be used in a similar limited way. Nevertheless, Ger​man judges ignored the drafters' intention because the principle proved to be a convenient tool for adding flex​ibility. One can also anticipate that courts used to a more liberal use of the concept will apply it in a similar lib​eral way when interpreting CISG. 20 John Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, pp. 131-132 (1982). 21 The general duty to communicate is in the UN Convention on Contracts for the International Sale of Goods. Articles 19(2), 21 (2), 6,39(1), 48(2), 65,71 (3), 72(2), 79(4), and 88(1) (1980). The duty to mitigate is in id., Arti​cles 77,85, and 86. 22 Id., Article 7(2), states: "Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based... ."The mechanism is described in more detail in Jonhn Honnold, Uniform Law for International Sales under the 1980 United Nations Convention. P. 132 (1982). 　 Rules of Private International Law The rules of private international law are the third and final source for interpreting the Con​vention. They may be used, however, only when CISG itself does not directly settle a matter or when the matter cannot be resolved by the application of a general principle derived from the Convention itself. Private international law rules vary from country to country. Some states—notably in Central and Eastern Europe—have enacted private international law codes, whereas oth​ers—such as the English common law countries—rely on case law. This will undoubtedly pro​duce inconsistent holdings. Nevertheless, these rules are much more harmonious internation​ally than other rules of domestic law, and adoption of their use represents a pragmatic decision by the authors of the Convention. By allowing courts to turn to the rules of private international law, the Convention avoids the possibility that courts will adopt interpretive aids on an entirely ad hoc23 basis. E. INTERPRETING SALES CONTRACTS    In determining if a contract has been made, in interpreting its terms, and in ascertaining if it has been performed as agreed, courts throughout the world look at the statements, the con​duct, and the usages and practices of the parties, as well as the practices of the trade to which the contract relates. Article 8 of CISG establishes rules for interpreting the statements and conduct of the parties; Article 9 deals with usages and practices. Statements and Conduct of the Parties A contract is sometimes said to be formed only when the parties have a "meeting of the minds" or a "common intent." This comes from the idea, commonly accepted in many civil law countries, that parties are only bound by a contract when they subject their "will" to its terms. Such a subjective approach, however, has its problems. If a dispute arises about the meaning of the contract, the parties are hardly impartial witnesses about what was in their minds at the time they made the contract. This shortcoming has led some courts, notably those in the common law countries, to reject completely the use of subjective intent in the interpretation of a contract. As Oliver Wendell Holmes, a noted American judge, once wrote: "The law has nothing to do with the actual state of the parties' minds. In contract, as else​where, it must go by the externals, and judge parties by their conduct."24    Of course, the subjective intent of the parties is the best evidence for interpreting a con​tract—if it can be fairly ascertained—and CISG allows courts to turn to it first. Thus, courts are to use the subjective intent of a speaker, but only if "the other party knew or could not have been unaware" of the speaker's intent. When a speaker's intent is not clear, CISG directs the court to look at objective intent. In that case, a party's statements and other con​duct "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." ______      23 Latin: “for this” Something done for a specific purpose, circumstance, or case.      24 Oliver W. Holmes, Common Law, p. 242 (M. A. DeWolfe Howe, ed., 1963) Negotiations When a court is to determine intent—be it the patty's subjective intent or a reasonable per​son's objective understanding—Article 8(3) of CISG directs that "due consideration" be given "to all relevant circumstances," including (a) the negotiations leading up to the con​tract, (b) the practices that the patties have established between themselves, and (c) the par​ties' conduct after they agree to the contract. The purpose of Article 8(3) is to do away with the technical rules that domestic courts sometimes use to interpret contracts. One notable example is the common law's parol evidence rule.25This rule forbids a court from considering any "prior" or any "contemporaneous oral understanding" when it is interpreting a writing that the parties intended as a "final expression of their agreement.26 Article 8(3) specifically allows courts to consider the par​ties' preliminary negotiations when they interpret a contract. Nevertheless, while Article 8(3) gives a court the flexibility to consider all relevant evi​dence, Article 6 allows the parties to "derogate from or vary the effect of" any of the provi​sions of the Convention. Thus, if the parties include a contract term (often called an "integra​tion clause") that directs a court to ignore all prior or contemporaneous agreements, the court will have to give effect to that term. In other words, if the parties choose to adopt the parol evidence rule, they can do so. However, unless they specifically do so, the court will look at all the relevant circumstances of the case. In addition to considering prior and contemporaneous conduct, CISG lets a court consider the parties' subsequent conduct. Again, this is contrary to the practice in some domes-tic tribunals.27 CISG, however, docs reflect the most widely followed practice, and, as is the case for parol evidence, the parties are free to insert a provision in their contract excluding its consideration.    In the next case, a US. court analyzed the CTSG provisions dealing with parol evidence.