Art. 7 CISG–UP, by Ulrich Magnus [Germany

Abstract

GOOD FAITH IN THE CISG AND THE UNIDROIT PRINCIPLES The CISG mentions the good faith principle in Art. 7(1), which rules on the interpretation of the Convention as a uniform international law text. According to that provision, the CISG is to be interpreted and applied in a way that “the observance of good faith in international trade” is promoted. The CISG, however, does not contain an express provision that the individual contract has to obey the maxim of good faith as well. In contrast, the UNIDROIT Principles address good faith as a principle directed to the parties of international contracts: “Each party must act in accordance with good faith and fair dealing in international trade” (Art. 1.7(1) Principles). Even more specifically Art. 4.8(2)(c) of the Principles refers to good faith and fair dealing as a determining element when and which omitted contract term has to be implied. On the other hand, the provision on the interpretation of the Principles (Art. 1.6) does not mention the maxim of good faith. But despite these obvious differences of wording, both texts accord in their essence. For, it is commonly held that under the CISG the good faith principle also applies to the interpretation of the individual contract and to the parties' contractual relationship as such. On the other hand the UNIDROIT Commentary to the Principles acknowledges that the good faith principle “may also be seen as an expression of the underlying purpose of the Principles” and may be used in interpreting the Principles.