商法课后习题作业

General Principles of the UNIDROIT PICC p50-53

1. Freedom of Contract

One of the most fundamental ideas underlying the UNIDROIT PICC is that of freedom of contract. This principle is expressly stated in Art. 1.1 ("Freedom of contract") which reads: "The parties are free to enter a contract and to determine its content." As pointed out in the Comment, " The right of business people to decide freely to 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."

2. Openness to Usages

Another essential element of the UNIDROIT PICC is its marked openness to usages. In other words, like other legal instruments specifically dealing with international commercial transactions, in particular CISG, the UNIDROIT PICC accords usages and practices developing within the different trade sectors a central role in the determination of the rights and duties of the parties to each individual contract. The reason for this is to be found in the general objective pursued by the UNIDROIT PICC to provide a regulation sufficiently flexible to permit of its constantly adapting to the ever-changing technical and economic conditions of cross-border trade

3. Favor Contractus

Another principle underlying the UNIDROIT PICC is the so called favor contractus, i.e. the aim of preserving the contract whenever possible, thus limiting the number of cases in which its existence or validity may be questioned or in which it may be terminated before time. The reason behind this is the acknowledgement that despite shortcomings which might arise in the course of the formation or performance of the contract it is normally in the interest of both parties to do all possible to keep their original bargain alive than to renounce it and to look for alternative goods or services elsewhere on the market.

4. Observance of Good Faith and Fair Dealing in International Trade

Paragraph 1 of Art. 1.7. clearly states: "each party must act in accordance with good faith and fair dealing (诚信及公平交易)in international trade," and this clearly indicates that under the system of the UNIDROIT PICC it is throughout the life of the contract, including the negotiation process, that the parties' behavior must conform to good faith and fair dealing. In this respect the UNIDROIT PICC follow an approach familiar to the generality of civil law systems, but not necessarily to common law systems which, even where admitting good faith and fair dealing as a general principle, confine its operation basically to the performance of contracts

(A) Freedom of contract

As stated in the Comment, “the right of business people to decide freely to whom they will offer their goods or