Q8-9a) With respect to the Plain Meaning Rule, the common law courts have had no particular diﬃculty in explaining its non-applicability to CISG contracts. By contrast, it is less obvious that the Parol Evidence Rule should not apply under the CISG. Can you explain, why? The following points might be of assistance (cf. again MCC-Marble (C 8–2): • Is the Parol Evidence Rule a substantive or an evidentiary rule? • Why does that distinction matter with regard to the applicability of the Parol Evidence Rule under the CISG? b) How has the question been solved in UP 2004 and PECL? Q 8-10 Which factors within the text of the CISG indicate that the Parol Evidence Rule has not been incorporated in the CISG? Cf. once again C8–2. Q 8-11 Although the Parol Evidence Rule, as such, has not been incorporated into the CISG, can you ﬁnd similar policy considerations in the Convention? Hint: Does a written document play a special role under the CISG? Cf. Art. 11 CISG. Q 8-12 a) Explain the eﬀect that a merger clause can have. b) How can Parol Evidence problems be avoided by including a merger clause in the contract? Cf. also C8–2. Q 8-13 How will a merger clause be interpreted under the CISG? Q 8-14 The UP 2004 and PECL address merger clauses expressly. a) Can you imagine why those sets of rules deal with merger clauses expressly, whereas the CISG does not? b) How should a merger clause be interpreted under Art. 2.17 UP 2004? c) Can you see any diﬀerences to the CISG? d) What is the diﬀerentiation made in Art. 2:105 PECL? e) Why does the approach adopted in the PECL make sense?

doi:10.4324/9780203945445-56

Chapter

Q8-9a) With respect to the Plain Meaning Rule, the common law courts have had no particular diﬃculty in explaining its non-applicability to CISG contracts. By contrast, it is less obvious that the Parol Evidence Rule should not apply under the CISG. Can you explain, why? The following points might be of assistance (cf. again MCC-Marble (C 8–2): • Is the Parol Evidence Rule a substantive or an evidentiary rule? • Why does that distinction matter with regard to the applicability of the Parol Evidence Rule under the CISG? b) How has the question been solved in UP 2004 and PECL? Q 8-10 Which factors within the text of the CISG indicate that the Parol Evidence Rule has not been incorporated in the CISG? Cf. once again C8–2. Q 8-11 Although the Parol Evidence Rule, as such, has not been incorporated into the CISG, can you ﬁnd similar policy considerations in the Convention? Hint: Does a written document play a special role under the CISG? Cf. Art. 11 CISG. Q 8-12 a) Explain the eﬀect that a merger clause can have. b) How can Parol Evidence problems be avoided by including a merger clause in the contract? Cf. also C8–2. Q 8-13 How will a merger clause be interpreted under the CISG? Q 8-14 The UP 2004 and PECL address merger clauses expressly. a) Can you imagine why those sets of rules deal with merger clauses expressly, whereas the CISG does not? b) How should a merger clause be interpreted under Art. 2.17 UP 2004? c) Can you see any diﬀerences to the CISG? d) What is the diﬀerentiation made in Art. 2:105 PECL? e) Why does the approach adopted in the PECL make sense?

Chapter

Q8-9a) With respect to the Plain Meaning Rule, the common law courts have had no particular diﬃculty in explaining its non-applicability to CISG contracts. By contrast, it is less obvious that the Parol Evidence Rule should not apply under the CISG. Can you explain, why? The following points might be of assistance (cf. again MCC-Marble (C 8–2): • Is the Parol Evidence Rule a substantive or an evidentiary rule? • Why does that distinction matter with regard to the applicability of the Parol Evidence Rule under the CISG? b) How has the question been solved in UP 2004 and PECL? Q 8-10 Which factors within the text of the CISG indicate that the Parol Evidence Rule has not been incorporated in the CISG? Cf. once again C8–2. Q 8-11 Although the Parol Evidence Rule, as such, has not been incorporated into the CISG, can you ﬁnd similar policy considerations in the Convention? Hint: Does a written document play a special role under the CISG? Cf. Art. 11 CISG. Q 8-12 a) Explain the eﬀect that a merger clause can have. b) How can Parol Evidence problems be avoided by including a merger clause in the contract? Cf. also C8–2. Q 8-13 How will a merger clause be interpreted under the CISG? Q 8-14 The UP 2004 and PECL address merger clauses expressly. a) Can you imagine why those sets of rules deal with merger clauses expressly, whereas the CISG does not? b) How should a merger clause be interpreted under Art. 2.17 UP 2004? c) Can you see any diﬀerences to the CISG? d) What is the diﬀerentiation made in Art. 2:105 PECL? e) Why does the approach adopted in the PECL make sense?

ABSTRACT

VI. Applicable law The “usages of the market for farm products in Vienna” as well as “the following and overleaf conditions” are mentioned as the basis of the contracts in the clause introducing the text of both contracts and, under the heading “Jurisdiction, item 11, the [Seller]’s ‘standard terms’ printed on reverse of the contracts states that the Arbitral Court that shall have jurisdiction ‘must apply Austrian law’.” Thus, a choice-of-law agreement of the contracting parties concerning the law of obligations to be applied to their contractual relation is present [. . .], [which] leads to the application of Austrian material law to this dispute; [. . .]

VII. Issues of law present 1. The substance of the claim is a compensatory claim of the [Seller] against the [Buyer], which is based in two respects on “breach of contract” by the [Buyer] in the sense of para 50

et seq. of the “usages” of the market for farm products in Vienna: After delivery of two installments of barley with a total weight of 500 tons, the [Buyer] refused, as is undisputedly established, to accept further deliveries with the explanation that the goods delivered were defective and declared her “waiver” of further deliveries; after raising protest in the sense of para 50(1) and (2) of the “usages” and ﬁxing an additional period of eight days for the performance of the contract [. . .]. Following the [Buyer]’s “waiver” of further deliveries of goods, the [Seller] ﬁnally declared the contract avoided. [. . .]

(Buyer’s request for the avoidance of contract pursuant to Art. 73(2) CISG found not to be justiﬁed.)

2. Practices established between the parties The parties are also bound by practices established between themselves. The Convention does not deﬁne the length or intensity that a particular practice must satisfy in order to fall within the deﬁnition of a ‘practice established between the parties’. However, it is generally acknowledged that the parties’ relationship must have lasted for some time and must have led to the conclusion of various contracts.