Judge Finn used the unidroit principles, namely Article 1.7, as a means of interpreting the applicable national law. He noted that the principle of good faith as such was not recognized or, at best, that his status was undecided. The Court concluded that the principle of good faith is fundamental in international trade agreements. When drafting a contract for the international sale of goods, it should be borne in mind that it is important to explicitly state which law is applicable. Nowadays, it can usually be a certain national law or the United Nations Convention on Contracts for the International Sale of Goods. If the CESL Regulation enters into force, an additional option will be proposed. In this case, contracting parties within the EU generally have the right to choose between the United Nations Convention on Contracts for the International Sale of Goods, the ESCL and national law. Therefore, greater attention must then be paid to the agreement of the applicable law. Issues relating to standard conditions are regulated differently in the United Nations Convention on Contracts for the International Sale of Goods and those.
In order for a contracting party to be able to rely on its standard conditions, it is therefore necessary to verify whether those standard conditions have actually been incorporated into the contract. With regard to the United Nations Convention on Contracts for the International Sale of Goods, the CISG Advisory Board answered many questions in its Opinion No. 13 on the inclusion of model conditions. However, not all issues have been resolved. Will cesl offer an advantage for contracts for the international purchase of goods? As stated by the CISG Advisory Board in its recent statement on the United Nations Convention on Contracts for the International Sale of Goods and Regional Harmonization, with explicit reference to the IGF and the CESL, “the existence of a global and regional law on sale in addition to the two national laws of the contracting parties would certainly have complicating effects on the pre-contractual process”.40xCISG-AC Declaration No. 1, CisG and regional harmonisation, Rapporteur: Professor Michael Bridge, London School of Economics, London, United Kingdom. Adopted by the CISG-CA after its 16th meeting in Wellington, New Zealand, on Friday, 3 August 2012. So there is never a boring moment in the field of contracts for the international sale of goods.
The CESL does not explicitly answer the question whether, in B2B relationships, a mere reference to the general terms and conditions is sufficient to include such clauses in a contract.22xSee also Kruisinga 2013, p. 352 et seq.; Spanjaard & Van Wechem 2012, p. 229. Article 70 of the CESL in the manner proposed by the European Commission contained the obligation to make known the standard contractual clauses. Article 70(2) of the CESL provided that the contractual terms of the other party were not sufficiently brought to the attention of the other party by a mere reference to them in a contractual document. That part of the provision applies only in the relationship between a trader and a consumer. Using a contrario reasoning, it follows from the CESL that, in a commercial purchase agreement, the party using standard terms is not required to provide the text of the terms to the other party.23xSee also Loos 2012, pp. 776-796.
However, it may be limited to a simple reference to its general conditions in a contractual document. Thus, it appears that Article 70 of the CESL does not require that such clauses be handed over to the other party in B2B.24x TransactionsSee also Advocate General Wissink in Van Vliet/Dealkent, HR 11 May 2012, NJ 2012, 318. It may not yet be clear what was required; When did a professional take reasonable steps to draw the other party`s attention to the terms and conditions? This was a very important point, since the provision of Article 70 of the CEUV was mandatory. The provision of Article 70 of the CESL, for example, has been criticised by the European Institute of Law in its above-mentioned ELI declaration. The European Legal Institute notes that it is not “appropriate” to apply Article 70 of the MSA to B2B and B2C transactions, as this is a consumer protection issue that cannot be extended to traders. In response to these criticisms, the European Parliament amended this part of the Regulation on the basis of the proposal from the Committee on Legal Affairs. It seemed sufficient to provide only for an obligation to raise awareness of standard contractual clauses in B2C contracts. Article 70 of the CESL has therefore been deleted.
Instead, the European Parliament inserted Article 76a, which only applies to B2C transactions. Article 76a provides that contract terms provided by a trader may be invoked against a consumer only if the consumer was aware of them or if the trader has taken reasonable steps to draw the consumer`s attention to them before or at the time of the conclusion of the contract. Contract terms must therefore be presented in such a way as to draw the consumer`s attention to their existence and be made available in a way that gives him the opportunity to understand them before the conclusion of the contract. Contractual terms shall not be deemed to have been sufficiently brought to the attention of the consumer by mere reference in a contractual document. It is also apparent from the recast provision that it is mandatory only in B2C contracts, since the fourth subsection of the new provision states that, to the detriment of the consumer, the parties may not exclude the application of that provision or derogate from its effects or modify its effects. Refers to the ALI/UNIDROIT Principles of Transnational Civil Procedure adopted by the American Law Institute in May 2004 and by UNIDROIT in April 2004, Principle 21. It specifies that a party has the burden of proof for all the essential facts relating to his case. A trader who regularly sells goods to other merchants will design a set of standard conditions and (try) to use them for all sales. The question may arise as to how these standard conditions can actually be incorporated into an international sales contract. This issue is discussed below and, in this context, a comparison is made between the CISG (section 3.2) and the CEAA (section 3.3). Secondly, the solutions proposed by the CISG and the CESL in the event of a so-called battle of forms are discussed (Section 3.4).17xCompare also on these topics: Kruisinga 2013, pp.
341-362. The United Nations Convention on Contracts for the International Sale of Goods does not contain any express provision on terms and conditions. At the time of drafting the United Nations Convention on Contracts for the International Sale of Goods, it was proposed to explicitly regulate the inclusion of general terms and conditions in the Convention. However, this proposal was rejected on the ground that the Convention already contained rules for the interpretation of the content of the contract.18xSee YB IX (1978) to 81, No 278 and Schroeter 2010, pp. 275-276. Although the United Nations Convention on Contracts for the International Sale of Goods does not contain any specific provision for the inclusion of standard terms in a contract, the United Nations Convention on Contracts for the International Sale of Goods is applicable to this issue. This has been confirmed by case law and doctrine as well as by the CISG Advisory Board in its Opinion No. 13.19xSchroeter 2010, pp. 275-276 and in the decision of the Federal Court of Justice of 31 October 2001, 1 IHR 2002, pp. 14-16; the Court of Cassation of 16 July 1998, CLOUT No. 242; the Supreme Court of the Netherlands (Hoge Raad) of 28 January 2005, NJ 2006, 517 and, for example, the decision of the United States Court of Appeals for the Ninth Circuit of 5 May 2003, 328 F.3d 528, 6 IHR 2003, pp. 295-296.
The question whether general terms and conditions have been included in the contract must therefore be resolved on the basis of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (§ 14 CISG et seq.) and by applying the provisions on the interpretation of contracts (§ 8 CISG) and uses (§ 9 CISG).20xSee Kruisinga 2013, PP..