bb) General Principles external to the CISG: Lex Mercatoria and the PICC

Part I. Chapter II. General Provisions Art. 7 place of payment of damages is the creditors place of business as derived from Art. 57(1)(a) which deals with the place of payment of the purchase price 151. bb) General Principles external to the CISG: Lex Mercatoria and the PICC The autonomous interpretation of the Convention is defined by some scholars 61 through a negative definition no external concepts to interpret the CISG and a positive one interpretation of the Convention within its system and objectives 152. However, it is rather controversial 153 whether external principles may play a role in the interpretation and gap-filling of the CISG; from those that deny any role of the external principles, and particularly PICC, to those that identify the PICC as the general principles on which the Convention is based (Art. 7(2) CISG). The common understanding is that the PICC are generally not considered to be the general principles of the CISG, but rather that it might be a tool to interpret the CISG or to fill its gaps, or even applied as an expression of the good faith principle (Art. 7(1) CISG). The answer also depends upon the applicable law of the contract as well as the dispute resolution method. In any case, modern trends in the interpretation of the CISG allow considering the lex mercatoria, the PICC and to a lesser extent the PECL, as a means of interpreting and supplementing the CISG when no general principles within the Convention are found 154. Furthermore, after the UNCITRAL endorse- [fn. 150 cont d] mercio Internazionale (1990) 103 (112); following Bonell, in: Bianca/Bonell, Commentary (1987), Art. 7 para. 2.3.2.2. (Pace). 151 Oberlandesgericht Düsseldorf (Germany) 2 July 1993, CISG-Online 74 (Pace). The better rule derived from Arts 57(1) and 7 is that such payment is to be made at the obligee s place of business. Therefore, one might go even further and infer that the place of payment of any monetary obligation under CISG is determined by the creditor`s place of business. However, there are opposite views, see Ferrari, CISG and Private International Law, in: Ferrari, The 1980 Uniform Sales Law (2003), p. 19 (43) and UNCITRAL, Digest of Case Law on the CISG, Art. 7 para. 11, inter alia: Cour d'appel de Paris (France) 14 January 1998, CISG-Online 347 (Pace), unable to derive a general principle and thus the Court held that Art. 57(1)(a) does not express a general principle on the place of payment, because in the cases it governs the seller and the creditor coincide. 152 Torsello, The CISG`S impact on Legislators: The Drafting of International Contract Law Conventions, in: Ferrari, The 1980 Uniform Sales Law (2003), p. 230 (235 et seq., note 229); Gebauer, Uniform Law, General Principles and Autonomous Interpretation, Uniform Law Review (2000), p. 686 (686 et seq.); and Zeller, Four-Corners The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods, 2003, Chapter 6 (Pace). 153 Cf. Perales Viscasillas, The Role of the UNIDROIT Principles and the PECL in the interpretation and gap-filling of CISG, in: Janssen/Meyer (eds), CISG Methodology (2009), p. 287 et seq. 154 Cf. Perales Viscasillas, The Role of the UNIDROIT Principles and the PECL in the interpretation and gap-filling of CISG, in: Janssen/Meyer (eds), CISG Methodology (2009), p. 287 et seq. Recently in case law considering that hardship might be an impediment under Art. 79 and that under Art. 7(2) the general principles as incorporated inter alia in the Unidroit Principles of International Commercial Contracts, the party who invokes changed circumstances that fundamentally disturb the contractual balance, as mentioned in paragraph 1, is also entitled to claim the renegotiation of the contract : Court of Cassation (Belgium) 19 June 2009, CISG-online 1963 (Pace). Or as in Arbitral Award, ICC 12460/2004 (Unilex): CISG, as per its article 7, may be supplemented by those general principles which have inspired its provisions and particularly those which have been substantiated and codified in the UNIDROIT Principles of International Commercial Contracts and actually used in relation with the CISG implementation. This can be observed in arbitral jurisprudence (see ICC Publication No. 642.2002) and in various ICC precedents. At the hearing, the Tribunal raised the issue with the parties whether they might be relevant. The Tribunal has accordingly concluded that the UNIDROIT Principles should provide guidance. See also: Arbitral Award, ICC 12 097/2003 (Unilex); Arbitral Award, ICC 11638/2002. Pilar Perales Viscasillas 139

Art. 7 Part I. Chapter II. General Provisions ment of the PICC, the legitimacy behind the Principles to play an interpretative and supplementary role towards the CISG has increased (Art. 7) 155. This is particularly so since the endorsement is not restricted to the use by the parties, as happens to be the case with other international instruments endorsed by UNCITRAL 156. III. Comparable Rules 62 The majority of uniform international commercial law texts have a rule on interpretation and gap-filling following the model of Art. 7 CISG 157. In fact, UNCITRAL was the first organization to insert a specific interpretation provision in its uniform law instruments 158, and thus a systematic interpretation of uniform law instruments is to be considered 159. According to this approach, a coherent interpretation among uniform law instruments should be considered as a general principle of interpretation of uniform law instruments; as a consequence the interpretation more favourable to coherence among uniform international texts is to be preferred. 63 The influence of Art. 7 is not only seen in the instruments of UNCITRAL 160, but also of UNIDROIT 161, as well as other regional texts, like the PECL and DCFR 162. Usually the model is reproduced in its entirety, although sometimes with minor 155 Report of the United Nations Commission on International Trade Law on the work of its fortieth session Vienna, 25 June-12 July 2007 A/62/17 (Part I) General Assembly (http://www.uncitral. org), paras 210 et seq.: Taking note that the Unidroit Principles 2004 complement a number of international trade law instruments, including the United Nations Convention on Contracts for the International Sale of Goods (1980), Noting that the preamble of the Unidroit Principles 2004 states that ( ), Congratulating Unidroit on having made a further contribution to the facilitation of international trade by preparing general rules for international commercial contracts, Commends the use of the Unidroit Principles 2004, as appropriate, for their intended purposes. See resorting to the UNCITRAL Recommendation on Incoterms 2000: Audiencia Provincial de Valencia (Spain) 7 June 2003, CISG-Online 948 (Pace) (www.uc3m.es/cisg). 156 Cf. UNCITRAL YB (2000), paras 432 434. 157 Before similar provisions with no reference to good faith: UN Convention on the Limitation Period in the International Sale of Goods (14 June 1974) and Art. 3 of the Convention on the Carriage of Goods by sea, 1978 (Hamburg Rules). 158 De Ly, Uniform interpretation: What is being done? Official efforts, in: Ferrari, The 1980 Uniform Sales Law (2003), p. 335 (343). 159 See Ferrari, The relationship between international uniform contract law Conventions, Uniform Law Review (2000) 76 78, who refers to the Conventions and justifying this approach on the basis that the different Conventions have the same goal and in the existence of identical interpretation rules. 160 Follow Art. 7(1) CISG, e. g.: Art. 4 United Nations Convention on International Bills of Exchange and International Promissory Notes of 1988; Art. 5 of the UNCITRAL Convention on Independent Guarantee and Stand By Letters of Credit of 1995 that refers to good faith ; Art. 8 UN- CITRAL Model Law on Cross Border Insolvency; Art. 5 UN Convention on independent guarantees and stand-by letters of credit; Art. 5(1) of the UN Convention on the Use of Electronic Communications in international contracts (2005); Art. 2 UN Convention on the contracts for the international carriage of goods wholly or partly by sea (2008); Art. 6.1 UNIDROIT Convention on Agency in the International Sale of Goods (Geneva, 17 February 1983); and Art. 4.1 UNIDROIT Model Law on Leasing (13 November 2008). 161 Art. 6 UNIDROIT Convention on Agency in the International Sale of Goods (Geneva, 17 February 1983) is a copy of Art. 7 CISG. Art. 5 of the UNIDROIT Convention on International Interests in Mobile Equipment (Cape Town, 2001) follows Art. 7 CISG but it considers also the Preamble and there is no reference to the good faith principle. 162 Art. 1:106 and Art. 1:201 PECL; Art. I.-1:102(3) and (4) DCFR are similar to Art. 7 CISG with some departures do to the different scope of application. 140 Pilar Perales Viscasillas

Part I. Chapter II. General Provisions Art. 7 changes. In a minority number of the texts, substantive changes are considered due to the need to further develop the rules, or accommodate them to the specificities of the subject matter of the instrument. Contrary to the CISG, the PICC do not mention subsidiary recourse the national 64 Law 163. This omission is consistent with the creation of an autonomous selfsufficient system. The recognition of the principle of good faith and fair dealing in Art. 1.7 PICC 65 (also in Art. 1:106 PECL) 164, not expressly as a principle of interpretation of the PICC but as a mandatory standard of behaviour of the parties, is one of the greatest and most correct innovations of the PICC. The drafters of the PICC were aware of the compromise that embodied good faith during the discussions of the Vienna Sales Convention. They have extracted good faith from the interpretative principles and have relocated it in an independent disposition with a mandatory character ( The parties may not exclude or limit this duty Art. 1.7 (2) PICC). At the same time they have given to good faith its natural content ( Each party must act in accordance with good faith and fair dealing in international trade ). Art. 1.7 PICC is complemented by Art. 2. 1. 15 (Negotiations in bad faith) and 2. 1. 16 (Duty of confidentiality). 163 The same approach is found in Art. 3(2) UNCITRAL Model Law on Electronic Commerce (1996); Art. 4(2) UNCITRAL Model Law on Electronic Signature (2001); Art. 2(2) UNCITRAL Model Law on International Commercial Conciliation (2002); Art. 2A UNCITRAL Model Law on International Commercial Arbitration (1985 as amended in 2006); and Art. 4.2 UNIDROIT Model Law on Leasing (13 November 2008). 164 More details: Magnus, Comparative editorial remarks on the provisions regarding good faith in CISG Art. 7(1) and the UNIDROIT Principles Art. 1.7., in: Felemegas (ed.), An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law (2007), pp. 45 et seq.; and Felemegas, Comparison between the provision regarding the concept of good faith in CISG Art. 7 and the counterpart provisions of the PECL, in: Felemegas (ed.), An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law (2007), pp. 268 et seq. Pilar Perales Viscasillas 141

Art. 8 Part I. Chapter II. General Provisions Art. 8 Alberto Zuppi Article 8 (1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was. (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. (3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties. Bibliography: Bonell/Peleggi, UNIDROIT Principles of International Commercial Contracts and Draft Common Frame of Reference: a Synoptical Table, Uniform Law Review (2009) 437; Brand/Flechtner, Arbitration and the Contract Formation in International Trade: First Interpretations of the U. N. Sales Convention, Journal of Law and Commerce (1992/1993) 239; Charters, Fitting the Situation : the CISG and the Regulated Market, Washington University Global Studies Law Review (2005) 1; Cueto Rua, Judicial Methods of Interpretation of the Law (1981); Dickerson, The Interpretation and Application of Statutes (1975); Patterson, The Interpretation and Construction of Contracts, 64 Columbia Law Review (1964) 833; Vettori, The Interpretation of Good Faith and According to Human Rights, Fundamental Freedoms and Constitutional Laws in the Common Frame of Reference, Persona e Mercato (2009); Zeller, Determining the Contractual Intent of Parties under CISG and Common Law A Comparative Analysis, 4 European Journal of Law Reform (2000) 629; Zuppi, La interpretación en la Convención de Viena de 1980 (CISG) Compraventa internacional de mercaderías, Revista Jurídica La Ley (1997) 1290. Outline I. Importance and Role of the Provision; History... 1 1. Introduction... 1 2. Legislative history... 6 II. Detailed Commentary... 7 1. First Paragraph... 7 a) The statement... 7 b) The meaning of intent... 13 c) Objective and subjective intent... 17 2. The second paragraph: The reasonable understanding... 21 3. The third paragraph... 25 III. Comparable Rules... 30 1 I. Importance and Role of Provision 1. Introduction Article 8 governs the interpretation of statements or manifestations of intent exchanged by the parties in a contract submitted to the control of the CISG. It is divided into three paragraphs according to the way such statements should be inter- 142 Alberto Zuppi

Part I. Chapter II. General Provisions Art. 8 preted. The first paragraph resolves the case when the other party knew, or should have known, the intention of the statement-maker. When neither of these alternatives are applicable, the second paragraph explains that the statement should be interpreted following the understanding of a reasonable person of the same kind as the recipient in the same circumstances, with some examples of what should be seen as relevant circumstances in the third paragraph. Notwithstanding the fact that the text refers to statements in particular, Art. 8 will 2 be applied when interpreting the contract in general. Moreover, it will even be referred to for the interpretation of other possible legal relationships that arise between the parties and go beyond the scope of the CISG. 1 Art. 8 should be considered together with Arts 7 and 9 which together form the pillars of the CISG in interpretation matters. These articles form the core of the CISG with respect to questions related to the understanding of an international contract and, notwithstanding Art. 6 2 and express reference of Art. 12 when the parties are prevented from derogating or varying the effect of CISG provisions 3, they cannot be derogated from or varied without excluding the CISG ex toto. 4 Art. 8 presents different alternatives for resolving problems that arise when the 3 parties intent regarding their expressions of their will in a contract are in dispute. The first paragraph is used for resolving conflicts in the subjective intent expressed by the statement-maker when the other party knew or could not have been unaware of what the statement-maker s intent was when issuing the statement. If the other party was unaware or could not have known the adduced subjective intent, then the CISG resorts in the second paragraph to the understanding of a reasonable person of the same kind as the recipient in the same circumstances. Presented in this way, Art. 8(1) provides for the actual intent of the statement-maker and, where this would not be applicable, the second paragraph states the objective theory provided by the reasonable person in the same circumstances which should be resolved following the explanations given in the third paragraph. 5 Accordingly, while determination of the actual (subjective) intent seems to be an issue of fact for the existence of which evidence has to be submitted, the interpretation of the objective intent of a party s 1 See Schlechtriem, Internationales UN-Kaufrecht (2005), p. 49 para. 54. As an example, Schlechtriem refers to the case of the so-called general conditions of the contract or Allgemeingeschäftsbedingen, very popular in Europe among the unions. See an example of this going beyond the CISG in Tribunale di Rovereto (Italy) 21 November 2007, Takap B. V. v Europlay S. r. l., Case 914/06 (Pace). 2 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. 3 See Art. 12: Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article. [emphasis added]. 4 Beyond a hypothèse d ecole without practical meaning, several CISG provisions cannot be derogated from by the parties despite Art. 6, unless they declare the CISG as non-applicable as a whole. See for example the final provisions of Arts 89 to 101 which cannot be derogated from despite not including a specific prohibition as seen with Art. 12. See Zuppi, La interpretación en la Convención de Viena de 1980 (CISG) Compraventa internacional de mercaderías), Revista Jurídica La Ley (1997) 1290. It would be understandable that the parties may agree to a specific method of interpretation varying the alternatives offered in these core articles. However, the way the CISG should be interpreted and the interplay of such a specific clause in a given contract with the core principles of the CISG will be decided by the interpreter in case of a conflict beyond the parties control. 5 See Hogg/Bishop/Barnhizer, Contracts Cases and Theory of Contractual Obligation (2008) p. 146. Alberto Zuppi 143

Art. 8 Part I. Chapter II. General Provisions 4 5 statements and conduct pursuant in Art. 8.2 CISG has to be done by the Arbitral Tribunal in the light of the principle of good faith and is an issue of law. 6 However, Art. 8 leaves several questions unanswered. It does not explain, for example, whether intent refers to the statement-maker s actual intent or simply what he stated, which can be problematic if the statement was different from what he actually meant. Also, the text does not explain the consequences of being unable to determine the statement-maker s intent despite exhausting all methods provided by this article. A similar effect arises when the expressed intent concerns several aspects of the contract and only part of the contract is unclear. Will this partial misunderstanding affect the whole statement or only the parts that are unclear? It is clear that Art. 8 deals with interpretation, however, would it be possible to confine its methods of gap filling to only part of a statement? 7 When no understanding can be obtained despite exhausting all the alternatives of Art. 8, no juridical effect will take place between the parties. In the case of a partial misunderstanding, the decision concerning whether that will affect the contract as a whole, or only part of it, will depend on the significance of the statement. Thus, if the statement-maker intended to determine the price of his indeterminate offer with the statement made, following the rules of Art. 8, any lack of understanding will result in the non-existence of the contract. However, when the statement of one party is not related to the main elements of a contract, despite a lack of understanding, following the rules of Art. 8, the contract will continue to bind the parties. 2. Legislative history 6 The Official Records of the Conference 8 refer to Art. 9(3) ULIS, 9 Arts 4(2), 10 5(3), 11 12 12 and 13(2) ULF, 13 as well as Arts 3, 4 and 5 of the 1972 UNIDROIT Draft 6 See Arbitral Award, ICC 9187/1999, June 1999 (Coke), CISG-Online 705 (Pace) gently provided by Dr. Stefan Kröll. 7 Some gap-filling provisions are in the CISG for specific purposes such as the cases of lack of determination of the place of delivery in Art. 31, or time for delivery in Art. 33. In Arbitral Award, ICC 9187/1999, June 1999 (Coke), CISG-Online 705 (Pace), it was stipulated that certain quality standards in the contract of the sale of coke provided a reduction of price if the delivered coke does not met these standards. The Tribunal decided that the defendant had to prove that it intended for the reduction mechanism to be limited in a certain (minor) amount of reduction instead of a reduction to zero in case of major discrepancies. Further, defendant must provide evidence for the fact, that claimant knew or should have known this intent when signing the contract (Art. 8.1 CISG). Defendant does neither bring forward substantial allegations nor proof in this respect. 8 See U. N. Doc A/CONF.97/19. 9 Art. 9.3 ULIS: Where expressions, provisions or forms of contract commonly used in commercial practice are employed, they shall be interpreted according to the meaning usually given to them in the trade concerned. 10 Art. 4.2 ULF: This communication may be interpreted by reference to and supplemented by the preliminary negotiations, any practices which the parties have established between themselves, usage and any applicable legal rules for contracts of sale. 11 Art. 5. 3 ULF: An indication that the offer is firm or irrevocable may be express or implied from the circumstances, the preliminary negotiations, any practices which the parties have established between themselves or usage. 12 Art. 12 ULF: 1. For the purposes of the present Law, the expression to be communicated means to be delivered at the address of the person to whom the communication is directed. 2. Communications provided for by the present Law shall be made by the means usual in the circumstances. 13 Art. 13 ULF: 2. Where expressions, provisions or forms of contract commonly used in commercial practice are employed, they shall be interpreted according to the meaning usually given to them in the trade concerned. 144 Alberto Zuppi

Part I. Chapter II. General Provisions Art. 8 of a Law for the Unification of Certain Rules relating to Validity of Contracts of International Sale of Goods (ULVC) as prior uniform law to this text. It has been mentioned that this is the only article of the CISG which refers to the former UNIDROIT draft as source. 14 While the CISG refers to other conduct that should be interpreted in accordance with the party s actual common intent, the ULVC uses the word acts. In addition, the ULVC added where such intent can be established, but this latter requirement was suppressed as it was considered superfluous. 15 a) The statement II. Detailed Commentary 1. First Paragraph Statement in the sense of this article is any unilateral significant act issued from one 7 party to another that allows the latter to know, or be able to know, what the statement meant. The first paragraph of Art. 8 presents the so-called subjective intent, will theory or actual intent. When the interpreter inquires whether the statement-maker has sufficiently shown his intent or not, the answer remains in the limits of the objective or subjective theories. 16 Subjective intent theory looks into the statement-maker s will when that was known or could not be ignored by the recipient. In contrast, the so-called objective intent theory looks into the actual intent of the statement-maker and what a reasonable man would understand. 17 When it is impossible to determine subjective intent, then Art. 8(2), which requires the interpreter to use the reasonable person test, comes into application. Here the meaning of the statement will be what a reasonable person in the same shoes as the recipient of the statement would have understood. If, despite this further step, no interpretation is possible, then no contract will be deemed to have been formed, and as contract validity goes beyond the scope of the CISG (Art. 4 18 ), domestic law will be applied to resolve any remaining conflict. 19 The Commentary 20 included in the Official Records of the Conference explains 8 the rules to be applied in the interpretation of the unilateral acts of each party and proposes as examples: their communication relating the intended contract, the offer and acceptance, notices, etc. Art. 12 repeats the acts of offer and acceptance as ex- 14 See Farnsworth, in: Bianca/Bonell, Commentary (1987), Art. 8 para. 1.1. The first paragraph was taken with small changes from Art. 3.2, the second paragraph from Art. 3.3 with the addition to the quality of reasonable person the requirement to be of the same kind as the other party. The third paragraph was taken from Art. 4.1 with two suppressions related to reasonability of the interpretation. 15 See Farnsworth, in: Bianca/Bonell, Commentary (1987), Art. 8 para. 1.2. 16 See Farnsworth, Contracts 4th ed. (2004) p. 114. 17 See opinion of Judge Jerome Frank, Ricketts v Pennsylvania R. Co., 2 Cir. 1946, 153 F.2 d 757, 760 762, 164 A. L. R. 387. 18 Art. 4: This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: (a) the validity of the contract or of any of its provisions or of any usage; 19 Also Zeller, Determining the Contractual Intent of Parties under CISG and Common Law A Comparative Analysis, 4 European Journal of Law Reform (2000) 629 (635). 20 See U. N. Doc A/CONF.97/18. Alberto Zuppi 145

Art. 8 Part I. Chapter II. General Provisions amples of indication of intention. 21 An offer will be valid when it is definite 22 and clearly indicates the intention of the offeror to be bound by his offer. From this point of view and for determining the conclusion of a contract, the Commentary regards it as the product of the sum of two unilateral acts, its offer and corresponding acceptance, both being declarations of intention of each issuer. 23 9 As some tribunals have recognized, the interpreter may perform a substantial inquiry into the parties subjective intent through Art. 8, contrary to the stance commonly seen in US courts. 24 The CISG requires a judge to evaluate the evidence that will prove whether the recipient party of a statement was aware or unaware of the subjective intent of the other party which has delivered the statement in question. This requirement is contrary to the parol evidence rule known in the common law. 25 The parol evidence rule provides that a written instrument intended by the parties thereto as the final manifestation of their mutual understanding cannot be challenged by past or contemporary evidence contradicting it or modifying its content. 26 10 To make a statement means to utter an expression of will by any method fitted for exteriorizing such manifestation. A statement is very different from a negative activity such as, mere silence or stagnation. 27 A statement will include any representation of fact, whether made in words or otherwise necessary, given to the other party. This is coherent with translations in other official languages of the CISG. For example, statements have been translated as indications in French and as declaraciones in Spanish, both official versions requiring exteriorization of the will of the party, as an active and passive demonstration of will. In a recent case, 28 the paragraph was used to recognize the distinguishable will of one party for including general conditions in a contract. 29 21 Art. 12: Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article. 22 See Art. 14.1: A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. 23 See Art. 24. 24 MCC-Marble Ceramic Center, Inc. v Ceramica Nuova d Agostino, S. p.a, 144 F.3 d 1384 (11th Cir. 1998) reversed. In a recent case, Guang Dong Light Headgear Factory Co., Ltd. v ACI International, Inc., 2007 U. S. Dist. LEXIS 76844 (D.C. Kan. 2007) a tribunal affirmed that the plain language of the CISG requires the Court to evaluate a party's subjective intent, so long as the other party was aware of that intent. 25 See infra note 67. 26 For similar definitions see Farnsworth, Contracts 4th ed. (2004) para 7.3 and Corbin, Corbin On Contracts (1952) p. 534. 27 See Art. 18(1). 28 Tribunale di Rovereto (Italy) 21 November 2007, Takap B. V. v Europlay S. r. l., Case 914/06 (Pace). 29 Idem in Italian la volontà riconoscibile or the recognizable will. In Arbitral Award, ICC 9187/1999, June 1999 (Coke), CISG-Online 705 (Pace) it was decided that since the defendant did not prove that it intended to enter into the contract as an agent, the Arbitral Tribunal could not assert that role if a reasonable party in claimant s position would have understood defendant s statement as intent to be an agent only (objective intent Art. 8.2 CISG). Given the wording of the contract, which clearly defined the defendant as the seller and the fact that the defendant had signed the contract as the seller ; claimant had reasonably to understand and rationally to conclude that defendant was the seller. 146 Alberto Zuppi