论CISG中商事惯例默示同意的适用标准
On the Applicable Standard of Implied Consent for Commercial Usages in CISG

CISG第9条第2款中的商事惯例在性质上不同于国际习惯，惯例不是国际法渊源，不具有法律规范的性质。主观论认为，商事惯例的约束力来源于双方当事人对于适用这一惯例规则的一致同意。商事惯例不具有法律上的效力，其效力来源于当事人的合意适用，即使这种合意是“默示的”。联合国国际贸易法委员会在制定CISG第9条第2款时也意图将主观论标准纳入其中。默示同意也是一种意思表示，默示不等于沉默，是以是当事人通过间接的、需要加以解释方可确定的方式而为的合意。判断一项商事惯例是否构成CISG中的默示同意，需要考虑双方当事人的交易次数和交易情况、双方当事人时候是否达成合意。当双方当事人悬而未决是否适用惯例时，应当采取谨慎态度不轻易视为默示同意。
Commercial usages in article 9, paragraph 2, of the CISG are different in nature from international customs in that they are not a source of international law and do not have the character of legal norms. The subjective view is that the binding force of a commercial usage arises from the agreement of the parties to apply the rules of the practice. Commercial usages do not have legal effects, but rather their effects derive from the consent of the parties to their application, i.e., such consent is “implied”, a criterion that UNCITRAL also intended to incorporate in its formulation of article 9, paragraph 2, of the CISG, which is subjective in nature. Implied consent is also an expression of will, and implied consent is not the same as silence, but is the consent of the parties by means of an indirect method that requires interpretation to be ascertained. In determining whether a commercial usage constituted implied consent for the purposes of the CISG, it was necessary to take into account the number and circumstances of the transactions between the parties, whether or not the parties had reached an agreement at the time. Where the parties are in doubt as to whether a practice applies, caution should be taken not to apply implied consent lightly.