1 Colin King, student number 3570842 ___________________________________________________________________ Legal Research Dissertation BLB4142

The CISG Another one of Equitys Darlings?

(7090 words excluding footnotes and bibliography)

A bone fide purchaser without notice has long been termed the Darling of Equity. This paper will consider whether the principles of equity have become embedded in the CISG and to what extend similarities exist between the two systems of law and thus if the CISG is another Darling of Equity. The author will concentrate on the concept of good faith in Article 7 and how the principle of Estoppel is reflected in the Convention. Table of Contents I. II. 111. IV. V. VI. VII. VIII. Introduction...1.0 The origins of Equity....4.0 Equitable Maxims.....5.0 Good Faith9.0 The Maxims and the CISG.15.0 Not much gap filling16.0 The equitable concept of estoppel..19.0 Estoppel as a general principle in the CISG Articles 16(2) (b), 29(2).20.0 Conclusion..24.0 Bibliography. 25.0

IX. X.

I.

Introduction In 1978 the United Nations General Assembly passed a resolution to develop a

uniform international sales law. It resulted in the 1980 Vienna Convention that passed with a two-thirds majority of the 66 nations attending and is now referred to as the Convention on Contracts for the International Sale of Goods (CISG)1. The CISG has

United Nations Convention on Contracts for the International Sale of Goods, Apr. 10, 1980, S. Treaty Doc, No, 98-9 (1983); 19 I.L.M. 688-99 (1980); Final Act of the United Nations Convention on Contracts for the International Sale of Goods, Annex 1, U.N. Doc. A/Conf.97/18 (1980), in Official

2 Colin King, student number 3570842 ___________________________________________________________________ provided a framework of unifying statute law to meet the regulatory needs of international trade. It has also given recognition to existing usage and practice of international traders and provided a mechanism through arbitration tribunals and the courts for the resolution of disputes and enforcement of decisions. So far, 62 countries have ratified the CISG.2 It is based on the concept of freedom to contract and applies to the sale of goods between parties whose place of business is in different States.3 Firstly, the parties may exclude the application of this Convention or, subject to Article 12, derogate from or vary the effect of any of its provisions.4 It guarantees party autonomy over both the conflict rules and substantive law. The CISG can be altered or elements can be removed if the parties agree. If they choose domestic law and the State has adopted the Convention, then they would be choosing the CISG unless it was specifically excluded. By agreement, items excluded by Article 2 (a), such as aircraft for example, can be included. Parties can choose the CISG in total, or form a hybrid contract. The only exception is found in the provisions relating to formalities.5In a case where there is a variance between the CISG and the terms of the contract; the terms will have priority. Secondly, Article 7 has several dimensions. In relation to the freedom to contract, it allows international private law to be applied where mattersnot expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by

Records, Conference on Contracts for the International Sale of Goods 178, U.N. Doc. A/Conf.97/19 (entered into force on Jan 1, 1988). 2 UNILEX CISG Database, <http://www.unilex.info/menu.cfm?dssid=2376&dsmid=13351> 15/09/03. 3 Article 1. 4 Article 6. 5 Articles 11,12, 96.

3 Colin King, student number 3570842 ___________________________________________________________________ virtue of the rules of private international law.6 This is generally known as gapfilling. The gap filling is however subject to Article 7 mandating the following: regard to its international character; the need to promote uniformity in its application; observance of good faith in international trade.7

This element of party autonomy is therefore subject to the overriding principle of good faith in two respects. First, good faith in having regard as to its international character and second, in promoting uniformity in its application. In MCC-Marble Ceramic Centre v Ceramica Nuova DAgostino, S.P.A.8 the court said:
One of the primary factors motivating the negotiation and adoption of the CISG was to provide parties to international contracts for the sale of goods with some degree of certainty as to the principles of law that would govern potential disputes and remove the previous doubt regarding which partys legal system might otherwise apply Courts applying CISG cannot, therefore, upset the parties reliance on the Convention by substituting familiar principles of domestic Law when the Convention requires a different result.

Article 7 has attracted a great deal of academic consideration and much has been written on the concept of good faith, but there appears to be a consensus that no strict distinction can be made between interpreting the Conventions provisions, and interpreting the agreement between parties.9 Both require the application of good faith. For the CISG to be universally accepted, uniformity is essential and good faith is applied to secure that uniformity. The Convention formulates the principle of good faith that was common practice in Lex Mercatoria10 and recognised in most other legal systems. Schlechtriem observed that:
6 7 8

Article 7 (2). Ibid (1). 144 F.3d 1384 (11th Cir. (Fla.) 1998) , http://cisgw3.law.pace.edu/cases/980629ul.html >

15/9/03
9

Prof. F. Enderlein, Prof. D. Maskow, Article 7 [Interpretation of Convention and relationship with national law] [1] in International Sales Law (1992), <http://www.cisg.law.pace.edu/cisg/biblio/enderlein-art07.html>, CISG Database, 2, quoting various authors, including Bonell, Khan, Ziegel, Honnold, Samson. Also see Bruno Zeller, Good Faith The Scarlet Pimpernell of the CISG (May 2000) CISG Database, Pace,< http://cisgw3.law.pace.edu/cisg/biblio/zeller2.html > 10 Prof. Bernard Audit, The Vienna Sales Convention and the Lex Mercatoria, (1998) CISG Database, Pace, 7. http://cisgw3.law.pace.edu/cisg/biblio/audit.html

4 Colin King, student number 3570842 ___________________________________________________________________

Whether or not effective international standards of good faith can actually be determined must be left to the studies of comparative law. The principle has affected a large number of provisions in [the] CISGthe function of such a general clause can probably be fulfilled by the rule that the parties must conduct themselves according to the standard of the reasonable person which is expressly described in a number of provisions and, therefore, according to Article 7(2), must be regarded as a general principle of the Convention11

II.

The origins of Equity One of those comparative legal systems is the law of equity, which is a set of

principles that were developed by the Courts of Chancery in the United Kingdom. The principles of equity have found their way into the CISG and one can make comparisons between these equitable principles and the principles found in the law of other contracting states. Whilst the common law provided certainty, it was inflexible and could lead to injustice, resulting in plaintiffs seeking relief by directly petitioning the King for a remedy. This resulted in two streams of law, the common law and equity. Equity is a combination of philosophical ideas and core principles that focuses on substance not form, and on outcomes, not process. Aristotle in his Ethics, referred to equity as being more significant than his theory of justice. That which is equitable is just, not legally just, simply a correction of legal justice. This is so because law is universal 12 Hegel in Phenomenology of Right13 also said that equity allows the court to use discretion not to apply a statute literally but to do what is right between the parties. The development of equitable principles and doctrines is underpinned by a general set of guidelines called Maxims. They reflect a certain morality about the way people should behave toward each other although they are not positive rules of law, but

11

Dr Peter Schlechtriem, Uniform Sales Law-The UN-Convention on Contracts for the International Sale of Goods(1986) CISG Database, Pace,< http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html>, 15 12 Aristotle, (384-322BC) The Ethics, bk. 5, vii, 1134b-1135a. 13 GWF Hegel, Phenomenology of Right, (1967) Oxford University Press: London

5 Colin King, student number 3570842 ___________________________________________________________________ rather a set of values to be borne in mind when reaching a decision. In Corin v Patton14 the High Court said It is not a specific rule of law. It is a summary statement of broad theme that underlies equitable concepts and principles. Its precise scope is necessarily ill-defined and somewhat uncertain. The following is illustrative list of maxims and whilst not exhaustive, will assist to create an understanding of how they are relevant to the CISG. III. 1. Equitable Maxims A person who comes to equity must come with clean hands

This is normally argued as a defense, the unclean hands defense. If a person seeks a remedy from the court but their conduct has been improper by reason of the conduct proscribed by equity, the court will not allow the litigant to gain from a wrong. There are three principles. First, the alleged impropriety must be a depravity in a legal as well as in a moral sense.15Second, it must display an immediate and necessary relation to the equity sued for.16Third, the defense is not available to deny relief for conduct that is just taking advantage of a bad business decision, judgement or absence of precautions.17 2. A person who seeks equity must do equity

A person who seeks a remedy whether under a statute, common law, contract or established equitable principle must be prepared to compensate the defendant to the extent of any benefit gained from the transaction they repudiate. In other words they must have performed their part of the bargain and are ready and able to perform in the future18 3. Equity acts in personam

14 15 16 17 18

(1990) 169 CLR 540. Dering v Earl of Winchelsea (1787) 1 Cox Eq Cas 318 at 319-320; 29ER 1184 at 1185. Ibid. Unilever plc v Cussons (New Zealand) Pty Ltd [1997] 1 NZLR 433 at 442. Geraghty v Minter (1979) 142 CLR 177 Gibbs J at 187.

6 Colin King, student number 3570842 ___________________________________________________________________ This maxim reflects the fact that equitable remedies were originally directed towards the person (in personam), as distinct from against property (in rem), for example an injunction restraining a person from acting unconscionably. Some modern remedies are now proprietary in nature, such as a vesting property through the mechanism of a constructive trust. In a sense they have a in personam nature in that they direct an individual to deliver property to the aggrieved party when it would be unconscionable for him or her to rely on their strict legal rights as in Muchinski v Dodds.19 As Holmes J indicated in Tyler v Court of Registration20 all proceedings, like rights, are really against personspersonification and naming the res as defendant are mere symbols, not essential matters. 4. Equity assists the diligent and not the tardy

If a plaintiff had unnecessarily delayed in bringing an action, equity would refuse relief. This is sometimes referred to as the doctrine of laches and is where it would be unjust to grant equitable relief, as the defendant or a third party would be prejudiced in some way. By its nature it is a defensive action and bears a similarity, in some circumstance, with estoppel. The length of delay and the nature of actions done during the delay are relevant and the onus is on the defendant to show that it would be inequitable to allow the claim to proceed.21 5. Equity considers as done that which ought to have been done

When a party is obliged to carry out a legal obligation, equity will ensure that the rights of the other party flowing from that obligation are put into effect. In the seminal case of Walsh v Lonsdale,22an agreement to enter into a lease was considered to have been performed in order to determine the rights of the parties. As well, this is illustrated by
19 20

(1985) CLR 583. 55 NE 812 (1899) Supreme Court of Massachusetts. 21 Lindsay Petroleum Co v Hurd (1874)LR 5 PC at 239-240; Neylon v Dickens [1987] 1 NZLR 402 at 407 22 (1882) 21 Ch.

7 Colin King, student number 3570842 ___________________________________________________________________ giving effect to promises or agreements whether by way of estoppel or part performance and essentially gives force to the intention of the parties. An extension of this maxim would also allow additional time to a party to carry out their obligations, thereby linking it to the German concept of Nachfrist. As well, there is also a link to the equitable remedies of injunction and specific performance. The CISG embraces this in many of its Articles, for example the obligations of buyers and sellers, Articles 46-52, 62-65. 6. Equity follows the law

Equity does not deny the existence of a valid legal right but may step in to prevent an unconscionable act and as such characterises the good faith concept. However, where there is competing interest between a legal right and an equitable one, equity will give priority to the legal interest, but only to the extent that it is valid and that it is not tainted by some fault on the part of the claimant23. If the legal right is not valid, there is an overlap between two other maxims. Equity will not allow a statute to be used as an instrument of a fraud and Equity considers done that which ought to have been done. 7. Equity is equality

This is the presumption that if equitable interests and rights are to be allocated between two rival parties and there is no other factor to take into account and all things being equal, equality is the basis for the division. It also the basis for dealing with innocent parties equally. The maxim also gives effect to the concept of proportionality in remedies.24 In Official Trustee in Bankruptcy v Citibank Savings Ltd co-sureties were entitled to claim a contribution from each other in proportion to their agreed liabilities.25 8. Equity looks to intent rather than form

This is applied where the intention of the party is clear when all the circumstances surrounding a transaction are taken into account. It is perhaps one of the best examples
23 24 25

Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR Re Steel [1979] Ch 218 at 225-226. (1995) 38 NSWLR 116 at 119.

8 Colin King, student number 3570842 ___________________________________________________________________ of equity considering substance rather than form and is the justification for implying terms into agreements and not allowing the black letter law or a literal approach to statutory interpretation to be applied to the dealings between parties. Under the common law maxim, time is of the essence parties to contracts would be required to complete their obligations promptly. However, equity would distinguish between substance rather than form to allow completion in a reasonable time, unless there was a specific time intended for completion.26 9. Equity will not allow a statute to be used as an instrument of fraud

Equity will not allow the strict application of a statutory right to be used to justify a fraud to deny another party an equitable interest in property.27Equity would intervene as explained by Lord Westbury in McCormick v Grogan:
The Court of Equity has, from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetuating a fraud an Act of Parliament intervenes, the Court of Equitydoes not set aside the Actbut fastens on the individual who gets title under that Act, and imposes upon him a personal obligation, because he applies the Act as an instrument for accomplishing a fraud. 28

10.

Equity will not assist a volunteer

Equity will only intervene if there is some reason to bind a promisors conscience. A voluntary promise does not reflect a contractual relationship in a commercial sense where binding obligations were intended. Equitydoes not regard a voluntary promise as binding on the conscience of the promisor, and therefore withholds its assistance from a volunteer.29 The term Equity will not perfect an imperfect gift30 is an extension of this maxim. 11.
26 27

Where equities are equal the first in time prevails

Perpetual Trustee Co (Ltd) v Waddell (1949) 49 SR (NSW) 266 at 268-269. Rochefoucauld v Bousted [1897] 1Ch. 196 at 206. 28 (1869) LR 4 HL 82 at 97. 29 Redman v Permanent Trustee Co of New South Wales Ltd (1916) 22 CLR 84 at 96 per Isaacs J. 30 Milroy v Lord (1862) 4 De G.F. & J. 264 at 274 per Turner L.J. Corin v Patton (1990) 169 CLR 540 at 556-558.

9 Colin King, student number 3570842 ___________________________________________________________________ Where competing equitable interests are equal, the earlier one will take priority or Qui prior est tempore potior est jure. (He who is first in time has the strongest claim in law.) Often this is determined by the actions of the parties and whether they were negligent in some way. The priority of the creation of that right will only be lost by some conduct on the part of the applicantshere the appellants armed the second respondent with the means31In this respect it is related to the maxim equity assists the diligent not the tardy IV. Good faith What is remarkable is that collectively, the maxims could be described as an application of good faith, also a central principle of the CISG and the basis for the principles contained in the various provisions. Article 7 states:
(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade [emphasis added]. (2) Questions concerning matters governed by this Convention which are not expressly settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

The Secretariat Commentary Guide to CISG Article 732 states that there are numerous applications of the principle of good faith in particular provisions of the Convention. Among the manifestations of the requirement of the observance of good faith are the rules contained in the following Articles. It then goes on to enumerate the examples ; 16(2) (b) on the non-revocability of an offer; 21(2), on the status of late acceptance; 29(2) in relation to the preclusion of a party from relying on provision in a contract that modification or abrogation of the contract must be in writing; 37 and 38 on the rights of a seller to remedy non-conformities in the goods; 40 which precludes the seller from
31

Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205 per Barwick CJ. See also Latec Investments v Hotel Terrigal Pty Ltd (1965) 113 CLR. 32 CISG Database Text of Secretariat Commentary on Article 6 of the 1978 Draft [draft counterpart of CISG Article 7 (1)] < http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-07.html> 1(3).

1 Colin King, student number 3570842 ___________________________________________________________________ 0 relying on notice of non-conformity in certain circumstances; 49(2), 64(2) and 82 on the loss of the right to declare the contract avoided; 85 to 88 imposing obligations to preserve goods. The Commentary points out that the principle of good faith is however, broader than these examples and applies to all aspects of the interpretation and application of the provisions33[emphasis added]. Like Article 7, individually, some of the equitable maxims are directly reflected in specific provisions of the CISG. However, some writers have argued that there is no positive duty of good faith in English law, although they acknowledge it was recognised in English merchant law.34 However, the concept of good faith can be found in the common law and in equity. It is a fundamental equitable principle, and is seen in a number of judgements in both jurisdictions. Many have asked the question, What does good faith mean? It is a vague idea and can mean different things to different people but it is possible to summarise key elements that have been expressed by scholars, courts and tribunals that give form and focus to the concept. Good faith is said to mean honesty and fairness of mind, fair dealing, loyalty and sincerity. Also, not to conduct oneself contrary to an undertaking, nor to exploit a position of dominance over a person who is vulnerable, relative to yourself; to take account of the other partys legitimate expectations; and reasonableness. There are also many examples of a good faith requirement in statutes.35 An obligation of good faith may be essentially a subjective concept but it can be determined by objective criterion because the terms of good faith are often delineated to

33 34

Ibid, 1 (4). Alberto Musy, The Good Faith Principle in Contract Law and the Precontractual Duty to Disclose: Comparative Analysis of New Differences in Legal Cultures (2000) Universita del Piemonte Orientale Facolta di Economia, Novara quoting Powell R, Good faith in contracts, Current Leg. Problems, 38 (1956) and Baker J.H, An Introduction to English Legal History, 3rd, London, 1990. 35 For example, Native Title Act 1993 (Cth) s 31 (1) (b) must negotiate in good faith with a view to obtaining agreement of each of the native title parties. Industrial Relations Act 1988 (Cth) s 170QK (2), Farm Debt Management Act 1994 (NSW), s11 requires a creditor to attempt to mediate in good faith.

1 Colin King, student number 3570842 ___________________________________________________________________ 1 a material extent by the circumstances of a particular form of usage, statute or contractual term. Sometimes the question of whether good faith has been applied can more precisely be answered in the negative by asking whether a particular state of affairs was caused by a lack of good faith. Some scholars also prefer to highlight what does not constitute good faith, in order to find its meaning. Shalev said that the concept of good faith cannot be independently defined or reduced to rigid rules; it acquires substance from the particular events that take place and to which it is appliedit is hard to say when good faith exists in a factual setting; it is much easier, and more common, to point to its absence.36 Kovach gave specific examples of what would indicate that a party is negotiating in bad faith: delays in answering correspondence; postponements of meetings; sending negotiators without authority to settle; repudiating commitments made during bargaining; new demands; insisting on a verbatim transcript of negotiation; refusal to sign a written agreement; unilateral action; and withholding valuable information.37 In Asia Pacific Resources Pty Ltd v Forestry Tasmania,38Wright J said the novel good faith conceptwhilst capable of statement with beguiling simplicity can never be a pure question of law good faith is incapable of abstract definition and can only be assessed as being present or absent if relevant facts are known or are capable of being known. Earlier, in Coal Cliff Collieries Pty Ltd v Sijehama & Anor39 a provision in a heads of agreement for a complicated proposed joint venture stated that parties would proceed in good faith to consult together on the formulation of a more comprehensive

36

G Shalev, Negotiating Good Faith in S Goldstein (ed) Equity and Contemporary Legal Developments, (1992). 37 K Kovach, Good faith in mediation requested, recommended, or required? A new ethic (1997) South Texas Law Review 575, 612. 38 (1997) FC4 (unreported, Supreme Court of Tasmania 4 September 1997) 39 (1991) 24 NSWLR 1, at 26D-27B.

1 Colin King, student number 3570842 ___________________________________________________________________ 2 agreement. Whilst on the facts of the case, the court regarded this provision as being too vague and uncertain to be enforceable, in his judgement, Kirby J surveyed a considerable number of cases from various jurisdictions, and a substantial amount of academic literature. He accepted the concept of good faith in contract law and said:
I do not share the opinion that no promise to negotiate in good faith would ever be enforced by a court. I reject the notion that such a contract is unknown to the lawprovided there was consideration for the promise in some circumstance a promise to negotiate in good faith will be enforceable, depending upon its precise termsso long as a promise is clear and part of an undoubted agreement between the parties, the courts will not adopt a general principle that relief for the breach of such promise must be withheld

In Aiton Australia Pty Ltd v Transfield Pty Ltd,40 the plaintiff asserted that the defendant made representations which were misleading and deceptive during tender negotiations because they had failed to abide by an alternative dispute resolution clause which was to make diligent and good faith efforts to resolve all disputes. Einstein J stated that:
While there may be a vagueness about a good faith obligation, it is to be noted that there is vagueness about many commercial contractsthe very nature of the words good faith must go toward the conduct of the parties involved in the agreed dispute resolution, as inclusion of these words connotes something more than mere attendance in the process.

In Renard Constructions (ME) Pty Ltd v Minister for Public Works41 Priestly J A examined notions of good faith drawing extensively from the United States, Canada, Australia and New Zealand. His analysis argues strongly for the recognition of the implied obligation of good faith in the performance and enforcement of contracts. He said:
The kind of reasonableness I have been discussing seems to me to have much in common with the notions of good faith which are regarded in many of the civil law systems of Europe and in all States of the United States as necessarily implied in many kinds of contractthere is a close association of ideas between terms unreasonableness, lack of good faith and unconscionability. Although they may not always be co-extensive in their connotations, partly as a result of varying senses in which

40 41

[1999] NSWSC (1 October 1999) at 88 -92 (1992) 26 NSWLR 234 at 263-265.

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each expression is used in different contexts; there can be no doubt that in many of their uses there is a great deal of overlap in their content.

Zeller referred to Renard Constructions when he argued that the gap between good faith as expressed in Article 7 (1) CISG, and domestic understanding in Australia has narrowed and that the development of good faith as a state of mind is the culmination of the socialisation process.42 In Hughes Aircraft Systems International v Air Services,43 Finn J also referred to the view of Priestly JA in Renard Constructions. He noted with approval that in relation to good faith and fair dealing, that fair dealing is a majororganising idea in Australian lawI consider a virtue of the implied duty to be that it expresses in a generalisation of universal application the standard of conduct to which all contracting parties are expected to adhere throughout the lives of their contracts. An example of good faith in equity was when in Forsyth v Blundell,44 a mortgagee was held to have an equitable duty of good faith when exercising the power of sale, as distinct from a common law duty to take reasonable care, and that the mortgagee had to take reasonable precautions to obtain a proper price as it was part of the duty to act in good faith. Insurance contracts, generally referred to as uberrimae fidei contracts, have required the duty of utmost good faith and full disclosure. 45 To adopt the legal clich, there is a common thread in these judgements that ties the meaning of good faith to equity. These authorities indicate that the concept of good faith

42 43

Ibid, n 9, Bruno Zeller, Good Faith The Scarlet Pimpernel of the CISG. (1997) 146 ALR 1 at 36-37. 44 (1973) 129 CLR 477 at 481. Subsequently cited in Carver v Westpac [2002] NSWSC 431 (31 May 2002). Support for this view may be found in statements in Kennedy v de Trafford (1896) 1 Ch 762 at 772 by Lindley L.J. and in the same case on appeal (1897) AC180 at 184-185 by Lord Herschel. Also Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 at 680, 694, 700, Issacs J the mortgagee is not answerable for mere negligence or carelessness. 45 Powell R, Good faith in contracts, Current Leg. Problems, 38, (1956). Ibid, n 34 quoted by Musy A, The Good Faith Principle in Contract Law and the Preconctractual Duty to Disclo se: Comparative Analysis of New Differences in Legal Cultures (December 2000), 7.

1 Colin King, student number 3570842 ___________________________________________________________________ 4 has been applied by equity in common law actions as well as in purely equitable actions to provide a remedy that is appropriate to the facts in issue. The concept of good faith is not restricted to equity and the CISG, is a universal standard of conduct, for example French, Italian and German contract law all includes the concept of good faith.46 As well, the Principles of European Contract Law (PECL) and the UNIDROIT Principles on the International Sale of Goods require good faith and fair dealing.47 This illustrates that the contracting states share similar values; the socialisation process referred to by Zeller.48 Good faith is but one example, but a critical one because it establishes a norm of behaviour and informs and determines how other provisions within the CISG may be interpreted. Good faith is also a norm of behaviour in equity. Because the CISG is founded on general principles, a judge will use discretion and may consider similar cases and scholarly writing to assist them but will look within the four corners of the Convention to reach a decision on the basis of the facts of the particular case. Within those four corners is the principle of good faith. Zeller said that good faith comes in two packages. One is the application of good faith as a state of mind of those interpreting and using the CISG. The second isa concept or principle contained in the provisions throughout the CISG.49 To this could be added a third. That is how parties respond to obligations placed upon them by the provisions of the CISG. This third dimension is considered by Storme in his article on European contract law when he observed that whenever a specific rule is developed on the basis of good the faith principle in order to oblige one party to take into account the legitimate interests of the other party, it becomes a specific role in relation to which that

46

French Civil Code, Article 1134-5 cc; German Civil Code, 242BGB; Italian Civil Code, Article 1366, Contract must be interpreted in good faith and Article 1375 Contract must be executed in good faith. 47 PECL Article 1:106 (1) (2), UNIDROIT Principles 1.6, 1.7. 48 Ibid, n 19. 49 Ibid n 9, 8.

1 Colin King, student number 3570842 ___________________________________________________________________ 5 other party must in its turn take into account the legitimate interests of the other party.50This is seen in the CISG in such areas as Article 46, where the buyer may require performance by the seller of his obligations (applying good faith, as well as specific performance) unless the buyer has resorted to a remedy which is inconsistent with the requirement. Again, the application of good faith is not to be inconsistent with the seller applying good faith in carrying out his original obligations. As an equitable concept, good faith becomes a contractual ethic because there is no distinction between the interpretation of the Convention and the agreement between the parties and their conduct. It is also empowering principle for judicial interpretation. The CISG delineates good faith and implements the other equitable concepts that find expression in particular Articles. Enderlein and Maskow refer to this as a synthesis of methods which have developed in national laws.51 It is not just the maxims that are relevant to the Convention, but the equitable principles that flow from them in a similar way to the principle of good faith that flows into the provisions of the CISG. Good faith in the Convention and good faith from equity are therefore a fused concept so that the Convention itself becomes an expression of good faith. V. The Maxims and the CISG Although the scope of this paper is not exhaustive, at this point it is useful to put the main maxims in a table form to indicate where there is a correlation with the Articles in the CISG.
1. A person who comes to equity must come with clean hands 2. A person who seeks equity must do equity 3. Equity acts in personam 4. Equity assists the diligent and not the tardy
50

Articles 7(1), 35(3), 38, 39,40,42,48(1),49(2), 71(3), 80, 84, 85-88 Articles 7, 43, 47(2), 48(2), 71(3), 72(2), 75, 76, 81(2), 82 Apply generally Articles 7, 34, 77, 82

Matthias Storme, Good Faith and the Contents of Contracts in European Private Law . Professor by special appointment at the catholic University of Leuven and professor at the University of Antwerp; member CECL and SGECC. 51 Op cit. at 2 [2.2]

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5. Equity considers as done that which ought to have been done 6. Equity follows the law 7. Equity is equality 8. Equity looks to intent rather than form 9. Equity will not allow a statute to be used as an instrument of fraud 10. Equity will not assist a volunteer 11. Where equities are equal the first in time prevails Articles 7, 9(2), 16(2) (b), 29(2), 38, 39, 46, 47, 48 49, 63 Articles 28(2), Articles 7, 50, 75, 76, 79, 82 Articles 7, 8, 9(2), 18(3) Articles 7 Apply generally Article 7, 79

Article 7 (1) applies the concept of good faith throughout the Convention. With the exception of maxims 3 and 10, all maxims have a direct relation to the CISG. But 3 and 10, by definition can be related to the Convention as a whole as it pertains to parties who have entered into commercial contracts and are clearly not volunteers. Remedies in the CISG are directed at the parties concerned, and apart from rescission, can be injunctive to prevent or direct some course of action; or require restitution by way of damages or demand specific performance. Examples are found in Articles 46 (2) where the buyer can require substitute goods, or require the seller to remedy lack of conformity by repair; 46 (3) and Article 47 (2) that specifies circumstances where the buyer may resort to a remedy for breach of contract. VI. Not much gap filling Article 7 (2) provides a mechanism for gap filling when matters not expressly settledare to be settled in conformity with the general principles on which it is based, orin conformity withthe rules of private international law. There are two sources that can be used. The Convention itself that consists of the concept of good faith which is an equitable concept and gap filling by the application of the rules of private international law. This second source becomes almost superfluous because as Hillman has argued ample sources of internal principles exist in the Conventionin fact the

1 Colin King, student number 3570842 ___________________________________________________________________ 7 Conventions rules generally stand for one or more of four basic policies.52 So, it not so much gap filling, but more the use of internal principles, but principles derived from equitable concepts. The first one, freedom to contract is encapsulated in Article 6, but the other three have a distinctly equitable flavour underpinned by the concept of good faith. The second is cooperation and reasonableness, for example, Articles 60(a), 32(3) and those covering notice provisions like 18(2), 39(1), 65(1), 71(3), 72(2). As well safeguarding reliance on communications, Articles 16(2)(b), 29(2) and 47(2). Third, the Conventions ability to make the contract work and to provide a second chance. This is reminiscent of the good faith concept in the lex mercatoria and an example of a standard of behaviour. It is also consistent with the equitable maxims Equity looks to intent rather than form. The Convention favours upholding the contract and seeking performance, even with modifications, rather than rescission and this is reflected in the Preamble:
The development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among Statestake into account different social, economic and legal systems and promote the development of international trade.

Under the Convention an injured party will only avoid the contract if the breach is fundamental, that substantially deprives him of what he is entitled to expect.53 Article 26 states that a declaration of avoidance of the contract must be by notice to the other party. These provisions recognise the special characteristics inherent in the international sale of goods, especially distance, language difference, costs of transportation, the involvement if intermediaries and so on. It mandates reasonableness

52

Robert A Hillman, Cross-References and Editorial Analysis, Article 7 CISG Database, <http://www.cisg.law.pace.edu/cisg/text/hillman.html> 2. 53 Article 25.

1 Colin King, student number 3570842 ___________________________________________________________________ 8 and it gives opportunities for both buyer and seller to have a second chance to remedy problems. Articles 35 and 36 require goods to conform with the contract and make the seller liable for any lack of conformity but Article 37 allows him to remedy deficiencies if the goods have been delivered before the due date. The buyer can seek damages if the breach continues but the contract remains on foot. The buyer must examine goods within as short a period as practicable, and under Article 38 give notice to the seller about lack of conformity within a reasonable time or under Article 39, in circumstances where the problem couldnt have been discovered, within two years. If the buyer fails to do so he is still protected if the seller knew or should have known about any lack of conformity, as was the case in Beijing Light Auto Beijing Light Automobile Co Ltd v Connell Limited Partnership 54. These are reciprocal obligations, each one triggers a response and in addition, under Article 44, a breach of Article 39 (1), conformity, or Article 43 (1), notice of a third party claim, gives the buyer an option to reduce the price under Article 50 and yet the contract remains intact, short of a fundamental breach. This arguably reflects the third addition to Zellers package of two items of good faith55 and Stormes third dimension whenever a specific rule is developed on the basis of good the faith principle in order to oblige one party to take into account the legitimate interests of the other party, it becomes a specific role in relation to which that other party must in its turn take into account the legitimate interests of the other party56. Hillmans final principle relates to compensation for breach under Article 74 which require foreseeability of loss in the light of the facts and matters of which he
54 55 56

Stockholm Chamber of Commerce Arbitration Award 5 June 1998 Op cit. n 42. Op cit, n 50.

1 Colin King, student number 3570842 ___________________________________________________________________ 9 then knew or ought to have known and Articles 81(2) and 84(2) which relate to restitution. The interpretation of these Articles must of course be in good faith, which will allow the court, or tribunal to vary damages or order restitution. Hillman says the focus of these Articles is on how to make the injured party whole, not on punishing the breaching party. This is perhaps another way of expressing Equitys objective of doing justice based on the circumstances of the case and demanded by reason and conscience 57or as Schlechtriem observed by the rule that the parties must conduct themselves according to the standard of the reasonable person.58 VII. The equitable concept of estoppel Estoppel has operated in both common law and equity and whilst we now use the term as one overarching concept, there have historically been a number of different types of estoppel based upon the particular circumstances. Lord Denning likened the many forms of this doctrine to a big house with many rooms where each room is used differently from the others59 The word itself is derived from the French estouppail and estoupper and is the source of the English word stop. Simply put, estoppel prevents a party from doing something. Whilst there has been debate over the types of estoppel, in 1982 Lord Denning said the doctrine of estoppelhas evolved during the last 150 years in a sequence of separate developmentsthese can now merge into one general principle shorn of limitations.60In Australia it is settled that there is one

57

This was the wording in the concluding plea to the Lord Chancellor when a petition was made for his intervention. G E Dal Pont & D R C Chalmers, Equity and Trusts in Australia and New Zealand (2nd ed. 2000), 4. 58 Op cit., n 11. 59 McIlkenny v Chief Constable of the West Midlands [1980] 1 QB 283, 317. 60 Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84, 122.

2 Colin King, student number 3570842 ___________________________________________________________________ 0 common doctrine of estoppel by conduct61 based upon good conscience. In Commonwealth v Verwayen Mason CJ said:
In conformity with the fundamental purpose of all estoppels to afford protection against the detriment which would flow from a partys change of position if the assumption that led to it were deserted, these developments have brought a greater underlying unity to the various categories of estoppel. Indeed, the consistent trend in the modern decisions points inexorably towards the emergence of one overarching 62 doctrine of estoppel rather than a series of independent rules.

The unification of various estoppels has made it possible to enforce positive promises. These may result from express representations or some implied assurance. This means that it is unconscionable for one party to change their mind knowing that the other party had relied upon a promise or assurance that a particular state of affairs existed, and had acted to their detriment because of their reliance on it, and the first party had nevertheless allowed them to proceed. This underlines one of the key tenets of equity; that it can do justice between the parties where the ordinary rules of the common law or statute would have been unfair. In short, estoppel does justice by preventing a party from going back on their word. VIII. Estoppel as a general principle in the CISG - Articles 16 (2) (b), 29 (2) Article 16 is in Part II of the CISG that relates to the formation of a contract and in particular deals with revocation:
(1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has despatched 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. [Emphasis added]

61

This is the label preferred by Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 447-53 62 (1990) 170 CLR 394 at 410

2 Colin King, student number 3570842 ___________________________________________________________________ 1 Article 29 in Part III, which covers the sale of goods, relates to modification or termination of a contract:
(1) A contract may be modified or terminated by the mere agreement of the parties (2) A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct. [Emphasis added]

Both these Articles establish grounds for what is, from an equity perspective an estoppel and this is consistent with the idea that there is support for the assertion that equitable estoppel is a general principle in the CISG. Clearly, Articles 16 and 29 prevent a party from allowing another to rely on a state of affairs and act to their detriment as a consequence. In Internationales Schiedsgericht der Bundeskammer de gewerblichen Wirtschaft, Vienna63 which was a case between an Austrian seller and a German buyer, the Arbitrator held the seller was estopped from setting up a defense that the notice given by the buyer was not timely. He observed that the question was not expressly settled by the CISG, but applied Article 7 (2) (good faith) and referring to Articles 16 (2) (b) and 29 (2), held that estoppel or nemo suum venire contra factum proprium, from Roman law or the doctrine of waiver, is a general principle underlying the CISG. He said:
A given legal position (e.g. a right, a defense, etc) can not only be intentionally waived but can also be objectively forfeited. This follows from the general principle of good faith and closely related principle of estoppel (prohibition of venire contra factum proprium). Thus, a legal position of a party must be regarded as having been forfeited whenever that partys conduct could be construed as meaning that it no longer wished to exercise its right or its defense and the other party acted in reliance on the new situation 64

He referred to it being a special application of good faith[which] may without doubt be seen as one of the general principles on which the Convention is based and referred to the writings of Bonell and Herber/Czerwenka.65
63

Arbitral Award 15 June 1994, SCH-4318. Also, Ibid, n 3 Unilex Database. http://www.unilex.info/case.cfm?pid=1&do=case&id=56&step=FullText 64 Ibid.

2 Colin King, student number 3570842 ___________________________________________________________________ 2 There are similar provisions to Articles 16(2) (b) and 29 (2) in Articles 2:02 (3) and 2: 105 (4) PECL. Schlechtriem noted that in German law there in a general concept of culpa in contrahendo (pre-contractual) liability66. This is conceptually akin to estoppel in the context of Article 16 and 29 and there is also a principle in German law of Mibrauchseinwand that is like estoppel. Some commentaries on the comparison between common law and the CISG note a divergence in the common law in this area because of the lack of consideration and discount any similarity. For example, in the Guide to Article 16, Akseli says there is a divergence in the way in which different legal systems deal with the matter of revocation of offer. In common law systems, the offeror, in the absence of considerationhas been granted the freedom to revoke the offer before the contract is concluded.67 However, this reasoning completely ignores the influence of equity. Equity does not require that consideration be present as a precursor for its intervention. Equity will in fact use estoppel to protect a future right, notwithstanding the absence of consideration, by referring to the conscience of the parties. The parallel in the CISG is good faith and estoppel is a means by which good faith can be ensured. Good faith, as discussed above, includes acting in good conscience, in not being dishonest. This link can be seen in Dulches Luisi, S. A. de C.V. v Seoul International Co Ltd, Seoulia Confectionary Co.68 when a party acted in bad faith, causing damages to the seller, by grossly violating the basic principle of good faith that should be observed in

65

This is also supported by Sieg Eiselen, Guide to Article 29 CISG Database, (2002) <http://www.cisg.law.pace.edu/cisg/text/peclcomp29.html > 2, i. 66 Ibid, n 11, Dr Peter Schlechtriem, Uniform Sales Law-The UN-Convention on Contracts for the International Sale of Goods(1986), Guide to Article 16, CISG Database, Pace, http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html 67 Akeshi N.O, Guide to Article 16 (2003), CISG Database <http://www.cisg.law.pace.edu/cisg/text/peclcomp16.html > 2. 1.b. 68 COMPROMEX, Comision para la Proteccion del Comercio Exterior de Mexico, M/115/97: Mexico 30 November 1998 , http://www/unilex.info/case.cfm/pid=1&do=case&id=374&step=Abstract

2 Colin King, student number 3570842 ___________________________________________________________________ 3 international trade. In Grant v Edwards69Browne-Wilkinson VC said equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. Future rights were considered in Oberlandesgericht Frankfurt am Main.70 The Court held that a pre-contractual liability could arise when the circumstances showed the non-breaching party relied on the conclusion of the contract. In particular, when the breaching party gave the other party good reasons to believe that a contract would certainly be concluded, or when the party had been caused to perform in advance. Mason CJs description of estoppel in Commonwealth v Verwayen,71 (which was a similar case, in that the Commonwealth had undertaken not to assert a legal right and Verwayen had acted in consequence of that assertion), that the fundamental purpose of all estoppels [is] to afford protection against the detriment which would flow from a partys change of position if the assumption that led to it were deserted 72 leads to the inevitable conclusion that the principle of estoppel applied in the CISG and equity are identical. The broader approach to estoppel which is directed at ascertaining whether it would be unconscionable for a party to be permitted to deny that whichhe has allowed or encouraged another to assume to his detriment [rather than] to enquiring whether the circumstances can be fitted within the confines of a preconceived formula serving as a universal yardstick for every form of unconscionable behaviour73 is an inherent part of the CISG.

69 70

(1986 Ch 638. 10 U 80/93: Germany 4 March 1994 http://www.unilex.info/case.cfm?pid=1&do=case&id205&step=Abstract 71 Ibid, n 62. 72 Ibid 73 Taylor Fashions v Liverpool Victoria Trustees (1982) 1 All ER 897, per Oliver J.

2 Colin King, student number 3570842 ___________________________________________________________________ 4 This is consistent with the flexible approach adopted in the CISG to satisfy the rights of the parties in contractual arrangements. Of being focused on just outcomes and not process, underpinned by good faith to achieve the objective of facilitating international trade.

Conclusion There are many other areas of equity that relate to the CISG. For example, the equity of rectification where a common mistake of the parties, does not accurately express an agreement between them. Equity has the power to rectify the writing to bring about what was intended into harmony with what is expressed. This is reflective of Article 8. Articles 45-49 and 62-64 mandate specific performance by both buyer and seller. Article 28 allows a court to enter judgement for specific performance if in accordance with the provisions of this Convention, one party is entitled to require performance A series of Articles, and the way in which they have been interpreted, have the same effect as rescission in equity.74 Unfortunately it is beyond the scope of this paper to explore these but it is clear however that the underlying principle of good faith is a unifying concept in the CISG and is identical the good faith concept in equity. Estoppel and what could be generally termed, the end game specific performance, damages, rescission and restitution, are manifestations of good faith, and by definition of equity.

74

Articles 74,75,78; Djakhongir Saidov, Methods of Limiting Damages under the Vienna Convention on Contracts for the International Sale of Goods (December 2001) CISG Database, <http://cisgw3.law.pace.edu.cisg/biblio/saidov.html, 2; Handelsgericht Zurich Switzerland: Abstract 214, 5 February 1997; Zapata Hermanos Sucesores v Heathside Baking Co, District Court of [Illinois] 28 August 2001; Russia: 28 March 1997, case 38/1996; DIS Rules 35.1, 35.2.

2 Colin King, student number 3570842 ___________________________________________________________________ 5 In order to achieve the development of international trade on the basis of equality and mutual benefit,75 to promote friendly relations among States, equity has, and will continue to play its part so that the CISG is truly a new Darling of Equity. Or perhaps its the CISG that had subsumed equity? This is the socialization process that Zeller referred to at work76.

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Farm Debt Management Act 1994 (NSW) French Civil Code DIS Arbitration Rules 1998 < http://www.dis-arb.de/scho/schiedsordnung98-e.html > German Civil Code Industrial Relations Act 1988 (Cth) Italian Civil Code Judicature Acts 1873-1875 (UK) Native Title Act 1993 (Cth) Principles of European Contract Law (PECL) United Nations Convention on Contracts for the International Sale of Goods 1980

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Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC (1 October 1999) Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84 Asia Pacific Resources Pty Ltd v Forestry Tasmania (1997) FC4 (unrep. SCT, 4 September 1997) Beijing Light Auto Beijing Light Automobile Co Ltd v Connell Limited Partnership Stockholm Chamber of Commerce Arbitration Award 5 June 1998 Breskvar v Wall (1971) 126 CLR 376; [1972] ALR Carver v Westpac [2002] NSWSC 431 (31 May 2002) Coal Cliff Collieries Pty Ltd v Sijehama & Anor (1991) 24 NSWLR 1 Commonwealth v Verwayen 1990) 170 CLR 394 Corin v Patton (1990) 169 CLR 540. Dering v Earl of Winchelsea (1787) 1 Cox Eq Cas 318 at 319-320; 29ER 1184 Dulches Luisi, S. A. de C.V. v Seoul International Co Ltd, Seoulia Confectionery Co COMPROMEX, Comision para la Proteccion del Comercio Exterior de Mexico, M/115/97: Mexico 30 November 1998, <http://www/unilex.info/case.cfm/pid=1&do=case&id=374&step=Abstract> Forsyth v Blundell (1973) 129 CLR 477 Geraghty v Minter (1979) 142 CLR 177 Grant v Edwards (1986 Ch 638 Handelsgericht Zurich Switzerland: Abstract 214, 5 February 1997,
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76 Op
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2 Colin King, student number 3570842 ___________________________________________________________________ 6

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Hughes Aircraft Systems International v Air Services (1997) 146 ALR 1 Internationales Schiedsgericht der Bundeskammer de gewerblichen Wirtschaft, Vienna: Arbitral Award 15 June 1994, SCH-4318. Also, Ibid, n 3 Unilex Database. <http://www.unilex.info/case.cfm?pid=1&do=case&id=56&step=FullText> Kennedy v de Trafford (1896) 1 Ch 762 Latec Investments v Hotel Terrigal Pty Ltd (1965) 113 CLR. Lindsay Petroleum Co v Hurd (1874) LR 5 PC Milroy v Lord (1862) 4 De G.F. & J. 264 MCC-Marble Ceramic Centre v Ceramica Nuova DAgostino, S.P.A 144 F.3d 1384 (11th Cir. (Fla.) 1998) <http://cisgw3.law.pace.edu/cases/980629ul.html > McCormick v Grogan (1869) LR 4 HL 82 McIlkenny v Chief Constable of the West Midlands [1980] 1 QB 283 Muchinski v Dodds (1985) CLR 583. Neylon v Dickens [1987] 1 NZLR 402 Oberlandesgericht Frankfurt am Main 10 U 80/93: Germany 4 March 1994
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2 Colin King, student number 3570842 ___________________________________________________________________ 8

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