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The Remedy of Reduction of Price
Eric E. Bergsten and Anthony J. Miller

Comments on Unification of Law

The history of art. 46 demonstrates many of the difficulties inherent in the international unification of law and suggests some of the steps which can be taken to overcome them.

Reduction of price was a remedy so well known to the drafters of the original versions of what became art. 46 that they felt no need to clearly specify the mechanism for calculating the price reduction. However, the remedy was to apply also in legal systems where it was hitherto unknown. For this reason, that which was clear to those who understood it had to be made clear to those who did not.

The history of art. 46 also shows that a provision which has one meaning or justification in the legal system from which it emanates may take on an entirely different meaning in a new context. Since the buyer does not have to show fault in order to claim damages under the Draft Convention, the buyer can declare the price reduced and save the balance of the bargain when it is to his advantage to do so and claim damages, thereby breaking the balance of the bargain, when it is to his advantage to do that, a result not so easily available under the Civil law.  74 

The most obvious difficulty which arose during the history of art. 46 was its mistranslation from French to English. Much has been written about the difficulties of interpreting multilingual legal texts where the different language versions are not identical. Less has been written about the impact of such discrepancies on the negotiation process. It is obvious that much of the misunderstanding of art. 46 during its preparation arose out of its mistranslation.

There are many ways for divergences in the different language versions to occur. Sometimes the text in the original language does not permit precise translation. Sometimes the text is misunderstood by the translator. Sometimes typographical errors are not caught by proofreaders who do not know the subject matter.

These divergences must be isolated and corrected as early as possible so that in the subsequent stages of the drafting process all the participants are working with the same text. There is only one way in which this can be accomplished. The various language versions must be rigorously compared by persons who are concerned with the substance of the project. This is a tedious task, but ideally it should be done each time the text is revised. If it is not, the quality of the comments and proposals of the participants, and therefore of the legal solution on which they flnally agree, will be adversely affected.

Finally, a procedure should be devised whereby the knowledge and understanding of a provision or problem which is gained by the participants at one stage of the preparation of a text is not lost to participants at a later stage. It is somewhat distressing to see that a 1939 UNIDROIT report indicated the differences between the Civil law and the Common law in respect of the means of calculating monetary relief for non-conforming goods  75  and that this knowledge was not readily available to later participants in the drafting of art. 46.

A drafting history which consists of reports and proposals made over a number of years may be of great help to a scholar in a retrospective examination of the text, but is usually of little value to the participant at a meeting, particularly a participant who is new to the particular text. He would not have the time and would often not have the inclination to trace each provision through its evolution, even assuming he had a complete set of records at his disposal. Nor, in most cases, would it be worth his effort when it is recognized that the participants' function at a meeting is to deal with the current text and try, if possible, to improve it. Nevertheless, old battles once settled satisfactorily should not have to be refought by new participants if there is a way to avoid it.

A possible approach is the preparation of a commentary to accompany the first draft text. The commentary should explain the draft provision, what it is intended to do and how it relates to other provisions. In addition, in some ways the most important point of all, the commentary should point out how the proposed text of the uniform law differs from any national law rules with which it could be confused. To serve its function properly, the commentary should be revised after each meeting of the preparatory body so as to reflect changes made in the text. Furthermore, as the discussions in the preparatory body bring out the difficulties in understanding and assimilating provisions new for some legal systems, the commentary should reflect those difficulties, explain how the draft text attempts to solve them and point out the remaining unresolved problems. Such a commentary kept current is no panacea, but it can serve to improve the product that finally emerges from the arduous process of the unification of law.  76 

 74. Amaudruz, supra n. 4 at 135-136 and 145-158.

 75. 1939 UNIDROIT Report at 80.

 76. See further Miller, Liability in International Air Transport 361-64 (1977).

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