Chapter 7. Gap filling and unification. Where are the boundaries?
| Pages | 89-110 |
| Author | Bruno Zeller |
Chapter7
Gapfillingandunification
Wherearetheboundaries?
A. Gaps and exclusions
As seen in Chapter 4, the CISG is not a complete statement of law and
hence gaps exist, which need to be filled by domestic law. Because external
gaps are inevitable, the choice of law question can never be eliminated.
Such a choice of law has no effect on the application of the unified parts of
contract law within the CISG. The choice of law will determine which
municipal system of law must be used to fill external gaps.
Unification of law can only be achieved step by step.242 In this chapter, it
is not envisaged to explain how gaps are to be filled, but rather what effect
gaps have on the uniform application of an international sales convention.
For the purpose of this book, this chapter will only take a close look at
article 4 and by necessity, when required, article 7. It will serve as an
example where gap filling can advance the uniform character of the CISG
and demonstrate that gaps are not necessarily a detractor to the goal of
uniformity.
Of central concern to the question of a uniform approach to conventions
is that uniformity is not only a question of matters that are included in the
convention but also a question of what has been excluded. A uniform
approach has to extend to the inclusive as well as exclusive rules. Only
when this ‘dual approach’ is taken can a politically acceptable and
economically useful result be obtained. The CISG left a space free, which
must be covered either by domestic law or possibly by other
conventions.243
The first point to consider is that the CISG makes a clear distinction
between gaps and exclusions. Article 7(2) provides the method that needs to
be adopted in cases where there is a gap or exclusion of a matter within the
CISG. In other words, the ‘depth of regulation’244 is set by article 7(2),
which states:
(2) Questions concerning matters governed by this Convention which are
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 principles, in
conformity with the law applicable by virtue of the rules of private
international law.
If an issue is not excluded by the convention, the conflict of laws rule
does not need to be applied. However, if there are either no general
principles within the CISG or the matter is explicitly excluded, a domestic
law needs to be consulted to resolve the issue, hence invoking conflict of
laws issues.
The general principle of validity of contract is such an example. Drobnig
justifies its exclusion by stating that:
[t]he difficulties in this area are due in part to the legal complexities and to
divergent social policies, in part also to conceptual complications.245
Article 4 has been described as a ‘contractual scheme [of] uncertain
functional characteristics’.246 It is not surprising to see different views
emerging in relation to the interpretation and also to the function of article
4.
Hartnell suggests that the validity question poses a danger to the
development of a coherent jurisprudence of international trade by giving
courts and tribunals wide discretion to determine when to apply domestic
law.247 Such a view is far too narrow and ignores the application of article
7, which sets the boundaries between provisions within the CISG.
B. Concurrentcontractandproduct
liabilityclaims
An example of a specific exclusion is article 5 which states that:
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