Book contents
- Frontmatter
- Dedication
- Acknowledgments
- Contents
- List of Cases
- Introduction
- Chapter 1 General and Specific Rules on Interpretation
- Chapter 2 Specific Rules of Interpretation
- Chapter 3 Good Faith and Fair Dealing and Contract Interpretation
- Chapter 4 Gap Filling in the PICC, CISG, PECL and DCFR
- Conclusion
- Bibliography
- ABOUT THE AUTHOR
Chapter 3 - Good Faith and Fair Dealing and Contract Interpretation
Published online by Cambridge University Press: 23 January 2020
- Frontmatter
- Dedication
- Acknowledgments
- Contents
- List of Cases
- Introduction
- Chapter 1 General and Specific Rules on Interpretation
- Chapter 2 Specific Rules of Interpretation
- Chapter 3 Good Faith and Fair Dealing and Contract Interpretation
- Chapter 4 Gap Filling in the PICC, CISG, PECL and DCFR
- Conclusion
- Bibliography
- ABOUT THE AUTHOR
Summary
PARTY AUTONOMY AS AN UNDERLYING PRINCIPLE OF CISG, PECL, PICC AND DCFR
The principle of freedom of contract, which applies as a general rule in all European legal systems, is also expressed in the CISG, PECL, PICC and DCFR. Article 1:102 PECL provides that:
Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles (§ 1). The parties may exclude the application of any of the Principles or derogate from or vary their effects, except as otherwise provided by these Principles (§ 2).
In the DCFR also freedom of contract is the starting point. It is submitted in the section on underlying principles that as a rule, natural and legal persons should be free to decide whether or not to contract and with whom to contract, to agree on the terms of their contract and to agree at any time to modify the terms of their contract or to put an end to their relationship. This freedom is of course subject to the application of mandatory rules.
The UNIDROIT Principles on International Commercial Contracts contain a similar rule in the Article 1.1. According to this article, “The parties are free to enter into a contract and to determine its content.” Moreover, in Article 1.5, the PICC provide that “The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles”. In the comments on the PICC Article 1.1., it is emphasized that the principle of freedom of contract is of paramount importance in the context of international trade:
The right of business people to decide with whom they will offer their goods or services and by whom they wish to be supplied, as well as the possibility for them freely to agree on the terms of individual transactions are the cornerstones of an open, market-oriented and competitive international economic order.
Similarly, Article 6 of the UN Convention on Contracts for the International Sale of Goods (CISG), states that 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.
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- Publisher: IntersentiaPrint publication year: 2019