Legal Research Dissertation BLB4142

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Colin King, student number 3570842

__________________
_________________________________________________

1

Legal Research Dissertation BLB4142


The CISG


Another one of Equity’s 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.

Introduction……………………………………………………………...1.0


II.

The origins of Equity……………………………………….……..…….4.0


111.

Equitable Maxims………………………………………………..……...5.0


IV.

Good Faith………………………………………………………
………9.0


V.

The Maxims and the CISG…………………………………………….15.0


VI.

Not much gap filling……………………………………………………16.0


VII.

The equitable concept of estoppel……………………………………..19.0


VIII.

Estoppel as a general principle in the CISG


Articles 16(2) (b), 29(2)……………………………
………………….20.0


IX.

Conclusion………………………………………………………….….24.0


X.

Bibliography…………………………………………………………. 25.0



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



1


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
Colin King, student number 3570842

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provided a framework of unifying statute law to meet the re
gulatory 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 C
onvention 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 the
y 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 C
ISG in total, or form a hybrid
contract. The only exception is found in the provisions relating to formalities.
5
In 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 severa
l dimensions. In relation to the freedom to
contract, it allows international private law to be applied where ‘matters…not 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 p
rinciples, in conformity with the law applicable by





Records, Conference on Contracts for the International Sale of Goods 178, U.N. Doc. A/Co
nf.97/19
(entered into force on Jan 1, 1988).

2


UNILEX CISG Database
, <
http://www.unilex.info/menu.cfm?dssid=2376&ds mid=13351
>
15/09/03.

3


Article 1.

4


Article 6.

5


Articles 11,12,
96.

Colin King, student number 3570842

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virtue of the rules of private international law’.
6

This is generally known as ‘gap
-
filling’. 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 i
ts international character
and second, in promoting uniformity in its application. In
MCC
-
Marble Ceramic Centre
v Ceramica Nuova D’Agostino, S.P.A.
8

the court said:



One of the primary factors motivating the negotiation and adoption



of the CISG was to p
rovide 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 party’s 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 Convention’s provisions, and
interpreting the agreement between parties.
9

Both require the applica
tion 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 Mercatoria
10

and recognised in m
ost other legal
systems. Schlechtriem observed that:




6


Article 7 (2).

7


Ibid (1).

8


144 F.3d 1384 (11
th

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, Hon
nold, 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


Colin King, student number 3570842

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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 [t
he] CISG…the 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,

ac
cording to Article 7(2), must be regarded as a general principle of the

Convention’
11


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 i
nflexible 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. Th
is is so because law is universal’
12

Hegel in
Phenomenology of Right
13

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 doc
trines 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


Aris totle, (384
-
322BC)

The
Ethics,
bk. 5, vii, 1134b
-
1135a.

13


GWF Hegel,

Phenomenology of Right,
(1967) Oxford University Press: London

Colin King, student number 3570842

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rather a set of values to be borne in mind when reachi
ng a decision. In
Corin v Patton
14

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 fo
llowing is illustrative list of maxims and
whilst not exhaustive, will assist to create an understanding of how they are relevant to
the CISG.

III.

Equitable Maxims

1.

A person who comes to equity must come with clean hands

This is normally argued as a de
fense, ‘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’.
15
Second, it must display an immediate and necessary relation to
the equity sued for.
16
Third, the defense is not available to deny relief for conduct that is
just taking adv
antage 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
future
18

3.

Equity acts in personam




14


(1990) 169 CLR 540.

15


Dering v Earl of Winchelsea

(1787) 1 Cox Eq Cas 318 at 319
-
320; 29ER 1184 at 1185.

16


Ibid.

17


Unilever plc v Cussons (N
ew Zealand) Pty Ltd
[1997] 1 NZLR 433 at 442.

18


Geraghty v Minter

(1979) 142 CLR 177 Gibbs J at 187.

Colin King, student number 3570842

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This maxim reflects the fa
ct 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 th
eir strict legal rights as in
Muchinski v Dodds.
19

As Holmes J
indicated in
Tyler v Court of Registration
20

‘all proceedings, like rights, are really
against persons…personification 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,
22
an 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


(1985) CLR 583.

20


55 NE 812 (1899) Supreme Court of Mas s achus etts.

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.

Colin King, student number 3570842

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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, the
reby 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, Articl
es 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 lega
l interest, but only to the extent that it is valid and that it is not tainted
by some fault on the part of the claimant
23
. 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
inst
rument 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 Cit
ibank 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


Heid v Reliance Finance Corporation Pty Ltd

(1983) 154 CLR

24


Re Steel
[1979] Ch 218 at 225
-
226.

25


(1995) 38 NSWLR 116 at 119.

Colin King, student number 3570842

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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 app
roach’ 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.
27
Equity 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 Equity…does not set aside the Act…but fastens on the individual



who gets title under that Ac
t, 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 promisor’s conscience. A
voluntary

promise does not reflect a contractual relationship in a commercial sense
where binding obligations were intended. ‘Equity…does not regard a voluntary promise
as binding on the conscience of the promisor, and therefore withholds its assistance
from a volu
nteer’.
29

The term ‘Equity will not perfect an imperfect gift’
30

is an
extension of this maxim.

11.

Where equities are equal the first in time prevails




26


Perpetual Trustee Co (Ltd) v Waddell
(1949) 49 SR (NSW) 266 at 268
-
269.

27


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.

Colin King, student number 3570842

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Where competing equitable interests are equal, the earlier one will take priority or
Qui
prior est tempor
e 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
o
n the part of the applicants…here the appellants armed the second respondent with the
means…’
31
,Q?WKLV?UHVSHFW?LW?LV?UHODWHG?WR?WKH?PD[LP?µHTXLW\?DVVLVWV?WKH?GLOLJHQW?QRW?WKH?
WDUG\¶

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

char
acter 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 gene
ral 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 7
32

states that there are numerous
ap
plications 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 o
n 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 Databas e


Text of Secretariat Commentary on Article 6 of the 1978 Draft
[draft
counterpart of CIS
G Article 7 (1)] <
http://www.cisg.law.pace.edu/cisg/text/secomm/secomm
-
07.ht ml
>

1(3).


Colin King, student number 3570842

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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 imposi
ng 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 provisions’
33
[emphasis added].

Like Article 7, indi
vidually, 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 party’s legitimate expectation
s; 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 del
ineated to



33


Ibid, 1 (4).

34


Alberto Mus y,

The Good Faith Principle in Contract Law and the Preco
ntractual 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 Introdu
ction to English Legal History,
3
rd
, 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’.

Colin King, student number 3570842

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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 applied…it 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 t
ranscript of negotiation; refusal to
sign a written agreement; unilateral action; and withholding valuable information.
37

In
Asia Pacific Resources Pty Ltd v Forestry Tasmania,
38
Wright J said ‘the
novel good faith concept…whilst capable of statement with beg
uiling 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 & Anor
39

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


re
quested, recommended, or required? A new ethic’
(1997)
South Texas Law Review’

575, 612.

38


(1997) FC4 (unreported, Supreme Court of Tas mania 4 September 1997)

39


(1991) 24 NSWLR 1, at 26D
-
27B.

Colin King, student number 3570842

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agreement. Whilst on the facts of the case, t
he 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 g
ood 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 law…provided there was consideration for the promise


in some circumstance a promise to negotiate in good faith will be

enforceable, depending upon its precise terms…so long as a promise is clear

and part of an undoubted agreement between the parties, the courts will

not adopt a general principle that re
lief 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 vagu
eness about many

commercial contracts…the 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 Works
41

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 contract…there 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


[1999] NSWSC (1 October 1999) at 88
-
92

41


(1992) 26 NSWLR
234 at 263
-
265.

Colin King, student number 3570842

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3

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 Construc
tions

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
H
ughes 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 major…organising idea in Australi
an law…I 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 goo
d 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 cliché, t
here 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


Ibid, n 9, Bruno Zeller,

Good Faith


The Scarlet Pimpernel of the CISG.

43


(1997) 146 ALR 1 at 36
-
37.

44


(1973) 129 CLR 477 at 481. Subs equently cited in
Carver v Westpac
[2002] NSWSC 431 (31
May 2002). Support for this view may be foun
d 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.

Colin King, student number 3570842

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has been applied by equity in common law actions as well as in purely equitable actions
to provide a reme
dy 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 CIS
G 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 is…a
concept or principle containe
d 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.

Colin King, student number 3570842

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5

other party

must in its turn take into account the legitimate interests of the other
party’.
50
7KLV?LV?VHHQ?LQ?WKH?&,6*?LQ?VXFK?DUHDV?DV?$UWLFOH?????ZKHUH?µWKH?EX\HU?PD\?
UHTXLUH?SHUIRUPDQFH?E\?WKH?VHOOHU?RI?KLV?REOLJDWLRQV¶??DSSO\LQJ?JRRG?IDLWK??DV?ZHOO?DV?
specific per
formance) ‘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 deli
neates 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
Articl
es in the CISG.

1.

A pers on who comes to equity mus t come with
clean hands

Articles

7(1), 35(3), 38, 39,40,42,48(1),49(2), 71(3), 80, 84,

85
-
88

2.

A person who seeks equity must do equity

Articles

7, 43, 47(2), 48(2), 71(3), 72(2), 75, 76, 81(2), 82





3.

Equity acts in personam

Apply generally

4.

Equity assists the diligent and not the tardy

Articles 7, 34, 77, 82














50


Matthias Storme, G
ood Faith and the Contents of Contracts in European Private Law
.
Professor by special appointment at the cat
holic 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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6

5.

Eq u it y c o n s id e rs a s d o n e t h a t wh ic h o u g h t t o
h a v e b e e n d o n e

Art ic le s 7, 9(2), 16(2) (b ), 29(2), 38, 39, 46, 47, 48

49, 63

6.

Equity follows the law

Articles 28(2),

7.

Equity is equality

Arti
cles 7, 50
,
75, 76, 79, 82

8.

Equity looks to intent rather than form

Articles 7, 8, 9(2), 18(3)

9.

Eq u it y will n o t a llo w a s t a t u t e t o b e u s e d a s a n
in s t ru me n t o f fra u d

Art ic le s 7

10.

Equity will not assist a volunteer

Apply generally

11.

Where equities are equal the first in time


prevails

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 d
efinition 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
injunct
ive 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
settled…are to be se
ttled in conformity with the general principles on which it is based,
or…in conformity with…the 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 equita
ble 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 Convention…in fact the
Colin King, student number 3570842

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Convention’s r
ules 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 Convention’s 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 reflec
ted 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

States…take 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 an
d 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.ht ml
> 2.

53


Article 25.

Colin King, student number 3570842

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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 A
rticle 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, an
d 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 couldn’t have been discovered, within two years. If the buyer fails
to do so he is still protected if th
e 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 A
rticle 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 Zeller’s package of two items of good
faith
55

and Storme’s 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 th
e 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
party’
56
.

Hillman’s final principle relates to compensation for breach under Article 74
which require fo
reseeability of loss ‘in the light of the facts and matters of which he



54


Stockholm Chamber of Commerce Arbitration Award 5 June 1998

55


Op cit. n 42.

56


Op cit, n 50.

Colin King, student number 3570842

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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 c
ourt, 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 Equity’s objective of doing justic
e
based on the circumstances of the case and ‘demanded by reason and conscience’
57
or 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 form
s of this doctrine to ‘a big house with many rooms’ where ‘each room is used
differently from the others’
59

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 estoppel…has evolved during the
last 150 years in a sequence of separate developments…these can now merge into one
general prin
ciple shorn of limitations’.
60
In Australia it is settled that there is one



57


This was the wording in the concluding plea to the Lord Chancellor w
hen a petition was made
for his intervention. G E Dal Pont & D R C Chalmers,
Equity and Trusts in Australia and New Zealand

(2
nd

ed. 2000), 4.

58


Op cit., n 11.

59


McIlkenny v Chief Constable of the West Midlands

[1980] 1 QB 283, 317.

60


Amalgamated Invest
ment and Property Co Ltd v Texas Commerce International Bank Ltd

[1982] 1 QB 84, 122.

Colin King, student number 3570842

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common doctrine of estoppel by conduct
61

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 party’s



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 consi
stent trend in the modern



decisions points inexorably towards the emergence of one overarching



doctrine of estoppel rather than a series of independent rules.

62


The unification of various estoppels has made it possible to enforce positive
promises. T
hese 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 com
mon 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 relat
es 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 ind
icates, 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

Colin King, student number 3570842

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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 modificati
on

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.
[E
mphasis 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, Arti
cles 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, Vienna
63

which was a case between an Austrian sell
er 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 part
y must be

regarded as having been forfeited whenever that party’s 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 1
994, SCH
-
4318. Also, Ibid, n 3 Unilex Database.
http://www.unilex.info/case.cfm?pid=1&do=case&id=56&step=FullText

64


Ibid.

Colin King, student number 3570842

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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) liability
66
. This is conceptually akin to
estoppel in the context of Article 16 and 29 and there is als
o a principle in German law
of ‘
Mi

brauchseinwand’
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
consideration…has 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, inclu
des 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 t
o 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 Contract
s 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’ (2
003), 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 Nove
mber 1998 ,
http://www/unilex.info/case.cfm/pid=1&do=case&id=374&step=Abstract

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3

international trade’. In
Grant v Edwards
69
Browne
-
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 inte
ntion’.

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 t
he
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 CJ’s 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
party’s c
hange 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 which…he 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
serv
ing as a universal yardstick for every form of unconscionable behaviour’
73

is an
inherent part of the CISG.




69


(1986 Ch 638.

70


10 U 80/93: Germany 4 March 1994
http://www.unilex.info/cas e.cfm?pid=1&do=cas e&id205&s tep=Abs tract

71


Ibid, n 62.

72


Ibid

73


Taylor Fashions v Liverpool Victoria Trustees
(1982) 1 All ER 897, per Oliver J.

Colin King, student number 3570842

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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 mis
take 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 an
d 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 199
7;
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.

Colin King, student number 3570842

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5


In order to achieve th
e ’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 it’s the CISG that

had subsumed equity? This is the socialization process that
Zeller referred to at work
76
.

Bibliography

Legislation cited

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

1
980


Cases cited

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 (u
nrep. 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 M
ay 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,




75


Preamble to the CISG.


76
Op cit, n
9
.


76

Colin King, student number 3570842

__________________
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2
6

< http://www.cisg.law.pa
ce.edu/cgi
-
bin/Sfgate? Language=englicsh&verbose=0&listenv=… >

Heid v Reliance Finance Corporation Pty Ltd

(1983) 154 CLR

Hughes Aircraft Systems International v Air Services
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