Cite as Farnsworth, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 195-197. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
E. Allan Farnsworth
1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision
An acceptance may be withdrawn if the withdrawal reaches the offeree before or at the same time as the acceptance would have become effective.
1. History of the provision.
1.1. - Article 22 allows an offeree to withdraw his acceptance if the withdrawal reaches the offeree no later than the time when the acceptance becomes effective. It is a corollary of Article 23, which provides that a contract is concluded at the moment when the acceptance «becomes effective». The time when the acceptance becomes effective is determined under Article 18(2) (3), and is generally «the moment the indication of assent reaches the offeror». Article 22 thus allows the offeree to withdraw his acceptance if the withdrawal reaches the offeror no later than the acceptance reaches him. It is therefore parallel to Article 15(2), under which «an offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer».
1.2. - Article 22 is based on Article 10 of ULFC, which provided:
The words «becomes effective» at the end of Article 22 were added by the Working Group to bring that article into line with Article 18(2) (3), where those words are used (see Yearbook, VIII (1977), 84). Article 22 was one of the least controversial provisions of the Convention (see Yearbook, IX (1978), 44; Official Records, I, 97-98). [page 195]
2. Meaning and purpose of the provision.
2.1. - Article 22 is directed at the situation in which the offeree's acceptance takes some time to reach the offeror, as it does, for example, in contracts by correspondence. The effect of Article 22 is to give the offeree the power to withdraw his acceptance by sending a withdrawal that reaches the offeree no later than the time the acceptance reaches him. In the case of acceptance under Article 18(2) by an act coupled with notification, the withdrawal would have to reach the offeror no later than the notification.
2.2. - Article 22 also has a negative implication. The offeree cannot withdraw his acceptance after the acceptance has become effective, that is, he cannot withdraw it after it has been received by the offeror.
2.3. - Thus the Convention uses the time of receipt of the acceptance by the offeror to determine when the offeree's power to withdraw his acceptance ends. But under Article 16 the Convention uses the time of dispatch of the acceptance by the offeree to determine when the offeror's power to revoke his acceptance ends. This juxtaposition of the two tests of receipt and dispatch gives rise to the problem described below.
3. Problems concerning the provision.
3.1. - The principal problem with the provision is that it may result in a period during which the offeror is bound but the offeree is not, giving the offeree an opportunity to speculate on a fluctuating market. By sending an acceptance, the offeree binds the offeror, who can no longer revoke his offer under Article 16. But the offeree can still withdraw his acceptance by sending an overtaking withdrawal. Therefore he might speculate during the period when he is not bound by watching the market to see if it is to his advantage to withdraw his acceptance (see AUBREY, Formation of International Contracts, 101 b).
Suppose, for example, that a buyer has received in the mail an offer from a seller to sell cotton at a stated price. If the buyer [page 196] mails an acceptance, the seller is bound and can no longer revoke his offer. However, the buyer is not bound, for he can telephone the seller any time until the acceptance has reached the seller and withdraw the acceptance. The buyer can, therefore, mail his acceptance and watch the market -- doing nothing further if the market price stays at or above the offered price, but telephoning to withdraw his acceptance if the market price drops below the offered price.
Possible abuse of Article 23 in the manner here described might be prevented in some instances by application of a requirement of good faith, either imposed by the Convention under a liberal interpretation of Article 7(1) or imposed by the domestic law made applicable under Article 7(2). [page 197]