Cite as Farnsworth, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 198-200. 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
A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.
1. History of the provision.
1.1. - Article 23 determines the time when a contract is concluded. In providing that this is the moment when the acceptance «becomes effective» Article 23 incorporates the provisions of Article 18(2), which states that this is generally the moment when «the indication of assent reaches the offeror». Article 23 is complemented by Article 22, which provides that an acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance becomes effective.
1.2. - There is no comparable provision in ULFC. The origins of Article 23 are to be found in a proposal by the Secretariat to include in Article 6 of ULFC a sub-paragraph stating:
This provision was adopted in substantially the same form as in Article 23 by the Working Group (see Yearbook, VIII (1977), 81-82). In subsequent discussions, it provided little controversy (see Yearbook, IX (1978), 44; Official Records, II, 290-292).
2. Meaning and purpose of the provision.
2.1. - Article 23 seems scarcely necessary, since the rule that it states would probably be understood as a consequence of Article 18(2). Nevertheless, the Working Group felt that, since a [page 198] number of other provisions have rules referring to the time of conclusion of the contract, it was desirable to have a provision specifying that time (see Yearbook, VIII (1977), 81).
2.2. - Articles that refer to the time of conclusion of the contract are Articles 42(1), 55, 68, 74, 79(1), 100(2) (see § 3.2., infra).
3. Problems concerning the provision.
3.1. - Article 23 will sometimes be difficult to apply to the facts. It is drafted, as are the preceding articles, on the assumption that it will be possible to identify a particular communication as an acceptance. Sometimes, however, the negotiations include a variety of comunications and acts, so that it is difficult to identify any single one as an acceptance, even though it is clear that a contract has been concluded. The Secretariat proposed a sub-paragraph stating:
However, even this provision would not have been of help in determining the time of conclusion of a contract in the situations just mentioned, and the Working Group considered it unnecessary.
3.2. - Determining the precise moment of the conclusion of the contract may be important under Article 55, which provides that if the parties make a valid contract but do not fix the price, the price shall be that «generally charged at the time of the conclusion of the contract». It may also be important under Article 68, which provides that risk of loss of goods sold during transit passes to the buyer «from the time of the conclusion of the contract». Determination of the precise moment is less likely to be of such importance, however, under the other articles that refer to the time of conclusion of the contract: Article 42(1) (time when seller knew or could not have been unaware of claims based on intellectual property); Article [page 199] 74 (time when party in breach foresaw or ought to have foreseen loss); Article 79(1) (time when party could have been expected to have taken impediment into account); and Article 100(2) (time for purpose of determining whether contract is subject to Convention).
3.3. - Does Article 23 also govern the place, as well as the time, that the contract is concluded? The Convention does not refer to the place of contracting, but the place of contracting may be important under choice-of-law rules and for other purposes not dealt with in the Convention. The Working Group rejected a proposal to extend Article 23 expressly to determine the place of making, but for conflicting reasons. Some thought that the place would in any event be determined by the time, others thought that it would be undesirable to link place automatically to time, and still others thought that no provision on place was needed since the Convention would not refer to place of conclusion, but only to time. Especially in view of this history, Article 23 should not be read as determining the place of the conclusion of the contract, though it may be relevant under rules of national law that refer to that place. That, however, is not a question of interpretation of the Convention.
3.4. - Does Article 23 also govern the time when the contract is concluded for purposes other than that of the Convention? Does it, for example, determine the time for the purposes of national regularity or fiscal laws that are drafted in terms of the time of contracting? By analogy to the reasoning stated above, Article 23 should not be read as determining the time for such purposes, though it may be relevant under such rules of national law. That, however, is not a question of interpretation of the Convention (see HONNOLD, Uniform Law, 205). [page 200]