1
UNIDROIT PRINCIPLES OF INTERNATIONAL
COMMERCIAL CONTRACTS 2004
(I)
PREAMBLE
(Purpose of the Principles)
These Principles set forth general rules for international commercial contracts.
They shall be applied when the parties have agreed that their contract be governed
by them.(*)
They may be applied when the parties have agreed that their contract be governed
by general principles of law, the lex mercatoria or the like.
They may be applied when the parties have not chosen any law to govern their
contract.
They may be used to interpret or supplement international uniform law
instruments.
They may be used to interpret or supplement domestic law.
They may serve as a model for national and international legislators.
CHAPTER 1 — GENERAL PROVISIONS
ARTICLE 1.1
(Freedom of contract)
The parties are free to enter into a contract and to determine its content.
ARTICLE 1.2
(No form required)
Nothing in these Principles requires a contract, statement or any other act to be
made in or evidenced by a particular form. It may be proved by any means, including
witnesses.
(i)
The reader is reminded that the complete version of the UNIDROIT Principles
contains not only the black-letter rules reproduced hereunder, but also detailed comments
on each article and, where appropriate, illustrations. The volume may be ordered from
UNIDROIT at .
For an update of international case law and bibliography relating to the
Principles see .
(*) Parties wishing to provide that their agreement be governed by the
Principles might use the following words, adding any desired exceptions or modifications:
“This contract shall be governed by the UNIDROIT Principles (2004)
[except as to Articles …]”.
Parties wishing to provide in addition for the application of the law of a
particular jurisdiction might use the following words:
“This contract shall be governed by the UNIDROIT Principles (2004)
[except as to Articles…], supplemented when necessary by the law of [jurisdiction X].
2
ARTICLE 1.3
(Binding character of contract)
A contract validly entered into is binding upon the parties. It can only be modified
or terminated in accordance with its terms or by agreement or as otherwise provided in
these Principles.
ARTICLE 1.4
(Mandatory rules)
Nothing in these Principles shall restrict the application of mandatory rules, whether
of national, international or supranational origin, which are applicable in accordance with
the relevant rules of private international law.
ARTICLE 1.5
(Exclusion or modification by the parties)
The parties may exclude the application of these Principles or derogate from or vary
the effect of any of their provisions, except as otherwise provided in the Principles.
ARTICLE 1.6
(Interpretation and supplementation of the Principles)
(1) In the interpretation of these Principles, regard is to be had to their
international character and to their purposes including the need to promote uniformity in
their application.
(2) Issues within the scope of these Principles but not expressly settled by them
are as far as possible to be settled in accordance with their underlying general principles.
ARTICLE 1.7
(Good faith and fair dealing)
(1) Each party must act in accordance with good faith and fair dealing in inter-
national trade.
(2) The parties may not exclude or limit this duty.
ARTICLE 1.8
(Inconsistent Behaviour)
A party cannot act inconsistently with an understanding it has caused the other
party to have and upon which that other party reasonably has acted in reliance to its
detriment.
ARTICLE 1.9
(Usages and practices)
(1) The parties are bound by any usage to which they have agreed and by any
practices which they have established between themselves.
(2) The parties are bound by a usage that is widely known to and regularly
observed in international trade by parties in the particular trade concerned except where
the application of such a usage would be unreasonable.
3
ARTICLE 1.10
(Notice)
(1) Where notice is required it may be given by any means appropriate to the
circumstances.
(2) A notice is effective when it reaches the person to whom it is given.
(3) For the purpose of paragraph (2) a notice “reaches” a person when given to
that person orally or delivered at that person’s place of business or mailing address.
(4) For the purpose of this article “notice” includes a declaration, demand, request
or any other communication of intention.
ARTICLE 1.11
(Definitions)
In these Principles
– “court” includes an arbitral tribunal;
– where a party has more than one place of business the relevant “place of
business” is that which has the closest relationship to the contract and its performance,
having regard to the circumstances known to or contemplated by the parties at any time
before or at the conclusion of the contract;
– “obligor” refers to the party who is to perform an obligation and “obligee”
refers to the party who is entitled to performance of that obligation.
– “writing” means any mode of communication that preserves a record of the
information contained therein and is capable of being reproduced in tangible form.
ARTICLE 1.12
(Computation of time set by parties)
(1) Official holidays or non-business days occurring during a period set by parties
for an act to be performed are included in calculating the period.
(2) However, if the last day of the period is an official holiday or a non-business
day at the place of business of the party to perform the act, the period is extended until
the first business day which follows, unless the circumstances indicate otherwise.
(3) The relevant time zone is that of the place of business of the party setting the
time, unless the circumstances indicate otherwise.
CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTS
S ECTION 1: FORMATION
ARTICLE 2.1.1
(Manner of formation)
A contract may be concluded either by the acceptance of an offer or by conduct of
the parties that is sufficient to show agreement.
ARTICLE 2.1.2
(Definition of offer)
A proposal for concluding a contract constitutes an offer if it is sufficiently definite
and indicates the intention of the offeror to be bound in case of acceptance.
4
ARTICLE 2.1.3
(Withdrawal of offer)
(1) An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches
the offeree before or at the same time as the offer.
ARTICLE 2.1.4
(Revocation of offer)
(1) Until a contract is concluded an offer may be revoked if the revocation reaches
the offeree before it has dispatched an acceptance.
(2) However, an offer cannot be revoked
(a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that
it is irrevocable; or
(b) if it was reasonable for the offeree to rely on the offer as being irrevocable and
the offeree has acted in reliance on the offer.
ARTICLE 2.1.5
(Rejection of offer)
An offer is terminated when a rejection reaches the offeror.
ARTICLE 2.1.6
(Mode of acceptance)
(1) A statement made by or other conduct of the offeree indicating assent to an
offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.
(2) An acceptance of an offer becomes effective when the indication of assent
reaches the offeror.
(3) However, if, by virtue of the offer or as a result of practices which the parties
have established between themselves or of usage, the offeree may indicate assent by
performing an act without notice to the offeror, the acceptance is effective when the act
is performed.
ARTICLE 2.1.7
(Time of acceptance)
An offer must be accepted within the time the offeror has fixed or, if no time is
fixed, within a reasonable time having regard to the circumstances, including the rapidity
of the means of communication employed by the offeror. An oral offer must be accepted
immediately unless the circumstances indicate otherwise.
ARTICLE 2.1.8
(Acceptance within a fixed period of time)
A period of acceptance fixed by the offeror begins to run from the time that the offer
is dispatched. A time indicated in the offer is deemed to be the time of dispatch unless
the circumstances indicate otherwise.
5
ARTICLE 2.1.9
(Late acceptance. Delay in transmission)
(1) A late acceptance is nevertheless effective as an acceptance if without undue
delay the offeror so informs the offeree or gives notice to that effect.
(2) If a communication containing a late acceptance shows that it has been sent in
such circumstances that if its transmission had been normal it would have reached the
offeror in due time, the late acceptance is effective as an acceptance unless, without
undue delay, the offeror informs the offeree that it considers the offer as having lapsed.
ARTICLE 2.1.10
(Withdrawal of acceptance)
An acceptance may be withdrawn if the withdrawal reaches the offeror before or at
the same time as the acceptance would have become effective.
ARTICLE 2.1.11
(Modified acceptance)
(1) A reply to an offer which purports to be an acceptance but contains additions,
limitations or other modifications is a rejection of the offer and constitutes a counter-of-
fer.
(2) However, a reply to an offer which purports to be an acceptance but contains
additional or different terms which do not materially alter the terms of the offer
constitutes an acceptance, unless the offeror, without undue delay, objects to the
discrepancy. If the offeror does not object, the terms of the contract are the terms of the
offer with the modifications contained in the acceptance.
ARTICLE 2.1.12
(Writings in confirmation)
If a writing which is sent within a reasonable time after the conclusion of the con-
tract and which purports to be a confirmation of the contract contains additional or
different terms, such terms become part of the contract, unless they materially alter the
contract or the recipient, without undue delay, objects to the discrepancy.
ARTICLE 2.1.13
(Conclusion of contract dependent on agreement
on specific matters or in a particular form)
Where in the course of negotiations one of the parties insists that the contract is not
concluded until there is agreement on specific matters or in a particular form, no contract
is concluded before agreement is reached on those matters or in that form.
ARTICLE 2.1.14
(Contract with terms deliberately left open)
(1) If the parties intend to conclude a contract, the fact that they intentionally
leave a term to be agreed upon in further negotiations or to be determined by a third
person does not prevent a contract from coming into existence.
(2) The existence of the contract is not affected by the fact that subsequently
(a) the parties reach no agreement on the term; or
6
(b) the third person does not determine the term,
provided that there is an alternative means of rendering the term definite that is
reasonable in the circumstances, having regard to the intention of the parties.
ARTICLE 2.1.15
(Negotiations in bad faith)
(1) A party is free to negotiate and is not liable for failure to reach an agreement.
(2) However, a party who negotiates or breaks off negotiations in bad faith is
liable for the losses caused to the other party.
(3) It is bad faith, in particular, for a party to enter into or continue negotiations
when intending not to reach an agreement with the other party.
ARTICLE 2.1.16
(Duty of confidentiality)
Where information is given as confidential by one party in the course of
negotiations, the other party is under a duty not to disclose that information or to use it
improperly for its own purposes, whether or not a contract is subsequently concluded.
Where appropriate, the remedy for breach of that duty may include compensation based
on the benefit received by the other party.
ARTICLE 2.1.17
(Merger clauses)
A contract in writing which contains a clause indicating that the writing completely
embodies the terms on which the parties have agreed cannot be contradicted or
supplemented by evidence of prior statements or agreements. However, such statements
or agreements may be used to interpret the writing.
ARTICLE 2.1.18
(Modification in a particular form)
A contract in writing which contains a clause requiring any modification or
termination by agreement to be in a particular form may not be otherwise modified or
terminated. However, a party may be precluded by its conduct from asserting such a
clause to the extent that the other party has reasonably acted in reliance on that conduct.
ARTICLE 2.1.19
(Contracting under standard terms)
(1) Where one party or both parties use standard terms in concluding a contract,
the general rules on formation apply, subject to Articles 2.1.20 - 2.1.22.
(2) Standard terms are provisions which are prepared in advance for general and
repeated use by one party and which are actually used without negotiation with the
other party.
ARTICLE 2.1.20
(Surprising terms)
(1) No term contained in standard terms which is of such a character that the other
party could not reasonably have expected it, is effective unless it has been expressly
accepted by that party.
7
(2) In determining whether a term is of such a character regard shall be had to its
content, language and presentation.
ARTICLE 2.1.21
(Conflict between standard terms and non-standard terms)
In case of conflict between a standard term and a term which is not a standard term
the latter prevails.
ARTICLE 2.1.22
(Battle of forms)
Where both parties use standard terms and reach agreement except on those terms, a
contract is concluded on the basis of the agreed terms and of any standard terms which
are common in substance unless one party clearly indicates in advance, or later and
without undue delay informs the other party, that it does not intend to be bound by
such a contract.
S ECTION 2: AUTHORITY OF AGENTS
ARTICLE 2.2.1
(Scope of the Section)
(1) This Section governs the authority of a person (“the agent”), to affect the legal
relations of another person (“the principal”), by or with respect to a contract with a
third party, whether the agent acts in its own name or in that of the principal.
(2) It governs only the relations between the principal or the agent on the one
hand, and the third party on the other.
(3) It does not govern an agent’s authority conferred by law or the authority of an
agent appointed by a public or judicial authority.
ARTICLE 2.2.2
(Establishment and scope of the authority of the agent)
(1) The principal’s grant of authority to an agent may be express or implied.
(2) The agent has authority to perform all acts necessary in the circumstances to
achieve the purposes for which the authority was granted.
ARTICLE 2.2.3
(Agency disclosed)
(1) Where an agent acts within the scope of its authority and the third party knew
or ought to have known that the agent was acting as an agent, the acts of the agent shall
directly affect the legal relations between the principal and the third party and no legal
relation is created between the agent and the third party.
(2) However, the acts of the agent shall affect only the relations between the agent
and the third party, where the agent with the consent of the principal undertakes to
become the party to the contract.
8
ARTICLE 2.2.4
(Agency undisclosed)
(1) Where an agent acts within the scope of its authority and the third party
neither knew nor ought to have known that the agent was acting as an agent, the acts of
the agent shall affect only the relations between the agent and the third party.
(2) However, where such an agent, when contracting with the third party on
behalf of a business, represents itself to be the owner of that business, the third party,
upon discovery of the real owner of the business, may exercise also against the latter the
rights it has against the agent.
ARTICLE 2.2.5
(Agent acting without or exceeding its authority)
(1) Where an agent acts without authority or exceeds its authority, its acts do not
affect the legal relations between the principal and the third party.
(2) However, where the principal causes the third party reasonably to believe that
the agent has authority to act on behalf of the principal and that the agent is acting
within the scope of that authority, the principal may not invoke against the third party
the lack of authority of the agent.
ARTICLE 2.2.6
(Liability of agent acting without or exceeding its authority)
(1) An agent that acts without authority or exceeds its authority is, failing
ratification by the principal, liable for damages that will place the third party in the same
position as if the agent had acted with authority and not exceeded its authority.
(2) However, the agent is not liable if the third party knew or ought to have
known that the agent had no authority or was exceeding its authority.
ARTICLE 2.2.7
(Conflict of interests)
(1) If a contract concluded by an agent involves the agent in a conflict of interests
with the principal of which the third party knew or ought to have known, the principal
may avoid the contract. The right to avoid is subject to Articles 3.12 and 3.14 to 3.17.
(2) However, the principal may not avoid the contract
(a) if the principal had consented to, or knew or ought to have known of, the
agent’s involvement in the conflict of interests; or
(b) if the agent had disclosed the conflict of interests to the principal and the latter
had not objected within a reasonable time.
ARTICLE 2.2.8
(Sub-agency)
An agent has implied authority to appoint a sub-agent to perform acts which it is
not reasonable to expect the agent to perform itself. The rules of this Section apply to
the sub-agency.
9
ARTICLE 2.2.9
(Ratification)
(1) An act by an agent that acts without authority or exceeds its authority may be
ratified by the principal. On ratification the act produces the same effects as if it had
initially been carried out with authority.
(2) The third party may by notice to the principal specify a reasonable period of
time for ratification. If the principal does not ratify within that period of time it can no
longer do so.
(3) If, at the time of the agent’s act, the third party neither knew nor ought to
have known of the lack of authority, it may, at any time before ratification, by notice to
the principal indicate its refusal to become bound by a ratification.
ARTICLE 2.2.10
(Termination of authority)
(1) Termination of authority is not effective in relation to the third party unless
the third party knew or ought to have known of it.
(2) Notwithstanding the termination of its authority, an agent remains authorised
to perform the acts that are necessary to prevent harm to the principal’s interests.
CHAPTER 3 — VALIDITY
ARTICLE 3.1
(Matters not covered)
These Principles do not deal with invalidity arising from
(a) lack of capacity;
(b) immorality or illegality.
ARTICLE 3.2
(Validity of mere agreement)
A contract is concluded, modified or terminated by the mere agreement of the
parties, without any further requirement.
ARTICLE 3.3
(Initial impossibility)
(1) The mere fact that at the time of the conclusion of the contract the
performance of the obligation assumed was impossible does not affect the validity of the
contract.
(2) The mere fact that at the time of the conclusion of the contract a party was
not entitled to dispose of the assets to which the contract relates does not affect the
validity of the contract.
ARTICLE 3.
本文档为【PICC.E】，请使用软件OFFICE或WPS软件打开。作品中的文字与图均可以修改和编辑，
图片更改请在作品中右键图片并更换，文字修改请直接点击文字进行修改，也可以新增和删除文档中的内容。
该文档来自用户分享，如有侵权行为请发邮件ishare@vip.sina.com联系网站客服，我们会及时删除。
[版权声明] 本站所有资料为用户分享产生，若发现您的权利被侵害，请联系客服邮件isharekefu@iask.cn，我们尽快处理。
本作品所展示的图片、画像、字体、音乐的版权可能需版权方额外授权，请谨慎使用。
网站提供的党政主题相关内容(国旗、国徽、党徽..)目的在于配合国家政策宣传，仅限个人学习分享使用，禁止用于任何广告和商用目的。
浙公网安备 33021202002483