No. I.2.2 - Trade usages

The parties are bound by any usages to which they have agreed and by any practice which they have established between themselves. Unless agreed otherwise, they are considered to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.

1 The fact that parties to international business are bound by trade usages of the nature defined in the Principle, even if they did not positively know them, as long as they ought to have known them, results from the presumption of professional competence of international businessmen. Because of this presumed professional competence, businessmen must accept that they are bound by trade usages which they knew or ought to have known.

2 The usage is qualified in three ways:1) it must be a usage which the parties knew or ought to have known; 2) it must be widely known and regularly observed in international trade (thereby excluding domestic or local usages) by parties to contracts of the type involved and 3) the usage must emanate from the particular branch of trade in which the parties are operating.

3 A trade usage may be defined as a general or at least widespread regular observance of a particular line of conduct amongst those engaged in a particular branch of international trade over at least a short period of time (Vogenauer, in: Vogenauer/Kleinheisterkamp (eds.), Commentary on the UNIDROIT Principles of International Commercial Contracts, 2009, at 194).

4 The fact that the parties are bound by any practices which they have established between themselves follows from the Principle of sanctity of contracts and the prohibition of inconsistent behaviour. Like a usage, a practice is a particular line of conduct, but contrary to a usage, it must not be observed by businessmen of a particular branch of trade, but only by the parties to the contract at hand.

5 Whether a practice has been "established" between the parties depends on the circumstances of each individual case. The reference to the Principle of sanctity of contracts means that the practice must be based on a common understanding of the parties and that the other party feels bound by it because of this common understanding which has developed between the parties to the contract in the past. This common understanding can emergewith respect to the performance of previous contracts concluded between them, or - in case of long-term contracts - with respect to previous performances under the contract at hand (see Vogenauer, id., at 195).

Please cite as: "Commentary to Trans-Lex Principle ,"
Arbitral Awards
ICC Award No. 5030, Clunet 1993, at 1004 et seq.
ICC Award No. 5721, Clunet 1990, at 1019 et seq.
ICC Award No. 6955, YCA 1999, at 107 et seq.
ICC Award No. 9117, 10 ICC Bull. No. 2, 1999, at 96 et seq.
Bonell, Michael Joachim, The UNIDROIT Initiative for the Progressive Codification of International Trade Law, 27 ICLQ 1978, at 413 et seq.
Braeckmans, H., Paralegale Normen En Lex Mercatoria, 23 TvPr. 1986, at 1 et seq.
Dasser, Felix, Internationale Schiedsgerichte und Lex Mercatoria, Zürich 1989
Derains, Yves, note to ICC Award No. 5030, Clunet 1993, at 1012 et seq.
Domingo, Ortega, Rodriguez-Antolin, Zambrana, Principios de Derecho Global, Navarra, 2006
Farnsworth, Allan, Unification of Sales Law: Usage and Course of Dealing, in: Festschrift Sauveplanne, Deventer 1984, at 81 et seq.
Ferrari, Franco, Das Verhältnis zwischen den Unidroit-Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen, JZ 1998, at 9 et seq.
Ferrari, Franco, The CISG's Interpretative Goals, Its Interpretative Method and Its General Principles in Case Law (Part II), IHR 5/2013, at 181 et seq.
Hartkamp, Arthur, The UNIDROIT Principles For International Commercial Contracts and the United Nations Convention on Contracts for the International Sale of Goods, in: Boele-Woelki/ Grosheide/ Hondius/ Steenhoff (eds.), Comparability and Evaluation, Dordrecht, Boston, London 1994, at 85 et seq.
Herber, Rolf/ Czerwenka, Beate, Internationales Kaufrecht, Munich 1991
Kersley, R.H., M.A., LL.M./ Broom, Herbert, LL.D., A Selection of Legal Maxims, 10th ed. London, 1939
Magnus, Ulrich, Die allgemeinen Grundsätze im UN-Kaufrecht, 59 RabelsZ 1995, at 469 et seq.
Maskow, Dietrich, Beispiel für allgemeine vertragsrechtliche Regeln, in: Ak.St.Rwiss.DDR (ed.), Grundzüge einer wissenschaftlichen Konzeption des allgemeinen Teils der rechtlichen Regelung internationaler Wirtschaftsbeziehungen zwischen den Organisationen der Mitgliedsländer des RGW, Potsdam-Babelsberg 1986, at 38 et seq.
Schlechtriem, Peter (ed.), English Commentary on the UN Convention on the International Sale of Goods (CISG), Comment on Art. 7 by Rolf Herber, Oxford 1998
International Legislation
United Nations Convention on Contracts for the International Sale of Goods (CISG)
Model Laws
Code Européen des Contrats - European Contract Code
OHADA Uniform Act Relating to General Commercial Law (Translation)
Uniform Commercial Code (USA)
Uniform Law on the International Sale of Goods
National Legislation
Handelsgesetzbuch - German Commercial Code
Nieuw Burgerlijk Wetboek - New Netherlands Civil Code ( Dutch Civil Code )
Principles / Restatements
Principles of European Contract Law - PECL
UNIDROIT Principles of International Commercial Contracts
Contract Clauses
Trade Usage & Branche of Trade
Services Contract
Representations and Warranties
X shall market the Product and perform under this Agreement in a professional manner with that standard of care, skill accuracy and diligence which is customary in the marketing of products similar to those provided under this Agreement.
Terms and Conditions of Services
The Service Provider shall have the right to shut down temporarily for maintenance purposes the operation of the facilities providing any Service whenever, in such Service Provider's discretion, such action is necessary; provided that such Service Provider shall provide written notice of any such shutdown to the Receiving Party as reasonably in advance of such shutdown as practicable and shall use commercially reasonable efforts to schedule such maintenance in consultation with the Receiving Party so as not to unreasonably interfere with the Receiving Party's business. Such Service Provider shall be relieved of its obligations to provide the Services affected by such shutdown during the period that its facilities are so shut down but shall use reasonable efforts to minimize each period of shutdown.

(...) If the Receiving Party or its applicable Subsidiary is unable to obtain any such required Licebse, the Service Provider and the Receiving Party shall use reasonable efforts to establish alternative arrangements to provide the Service in the absence of such Required License (...) provided, further, that any portion of the Service requiring the use of such Required License shall terminate in the event that the Service Provider and the Receiving Party are, in the exercise of their reasonable efforts, unable to establish such alternative arrangements (...) the Parties acknowledge that the provision of Services hereunder may require the Service Provider to enter into new or amended agreements with third parties or obtain the consent and approval of third parties. The Service Provider shall use reasonable efforts to enter into such agreements and to obtain such consents (...)
Services, Terms & Conditions
X shall provide the services under this Agreement in a professional, courteous manner, consistent with industry standards. X shall comply with all applicable association, local, state, and federal laws, ordinances, rules, regulations and codes.
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