Reproduced with permission of Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 303-325

Introduction
Case Material
CISG covers the Incorporation Issue
   -   The Principle
   -   Reasonableness control of Standard Contract Terms
   -   Incorporation of Jurisdiction and Arbitration Clauses
Requirements for the Incorporation
   -   Method of, and help for interpretation
         --   General principles of the CISG
         --   Interpretive support from international sets of Principles
   -   Reference to Standard Terms
   -   Consent
   -   Possibility of knowledge
   -   Electronic communication
   -   Point of time
   -   The language problem
Concluding Remarks

INTRODUCTION

The incorporation of standard contract terms is a standard problem of international contracts. When do terms which have been preformulated by one party for the use on more than one occasion form part first of an offer or acceptance and then of a contract? Does a mere reference to standard terms suffice? Is it necessary that the terms must have been brought to the attention of the other contract party? If so, when and in which form? Unless uniform law applies these questions have to be answered in accordance with the applicable national law. The national solutions concerning this issue vary, however, to a considerable extent. They differ in particular on how far the other party must have been informed about the contents of the standard terms and on how precisely, when and in which form this party must have consented to the terms.[1]

The following text deals only with the incorporation of those terms into the declarations of the parties. Neither the 'battle of forms'[2] nor the control of the validity of standard terms is the subject of the following paper. The paper further concentrates only on how this matter is to be dealt with under the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG). [page 303]

The study is dedicated to Albert H. Kritzer to whom the worldwide CISG community owes so much. His masterly collection of CISG materials and in particular of CISG decisions of national courts and arbitration tribunals has set standards and is an indispensable tool for all those working in this field of law -- both practitioners and academics. Indeed, Al has contributed eminently to the dissemination of the Uniform Sales Law and to a uniform interpretation and application of the CISG. As far as international commercial law can at all improve trade relations between countries and nations and thereby secure peace Albert H. Kritzer has a great share in it.

CASE MATERIAL

Cases which raise the incorporation problem are generally of a kind that may be examplified by a decision of the German Federal Court (Bundesgerichtshof, BGH) of 2001:[3] A German seller sold a used computer-geared rolling-milling machine ('Walzfräsmaschine') to a Spanish buyer. The contract included an express term that the seller had to send also a mechanic for one working day. Despite two stays of three and six days the mechanic was not able to get the machine started. Only after the buyer had ordered an expert from another enterprise this person successfully started the machine which then worked perfectly. The buyer claimed the costs for the second mechanic. The seller refused any liability relying on its general sales and delivery conditions. The seller argued that its confirmation of order clearly referred to the general conditions which excluded any remedy for defects of used machines and that the buyer had fully accepted all conditions listed in the confirmation letter. The buyer counter-argued that the general conditions were not attached to the letter of confirmation and therefore had not been effectively incorporated into the contract. [page 304]

Similar but more recent decisions on the incorporation of standard terms include judgments from Austria,[4] Belgium,[5] France,[6] again Germany,[7] Netherlands,[8] Switzerland [9] and the United States.[10] In these cases the standard terms had been sometimes printed on the back of the contract declaration; sometimes they were printed on the back of an invoice sent shortly after the conclusion of the contract; sometimes they were registered in a publicly accessible register; sometimes they were only referred to in the contract declaration without being attached. In all these cases the question is whether the standard terms had become part of the respective contract declaration and then of the contract.

CISG COVERS THE INCORPORATION ISSUE

The first question which has to be answered in cases of the sketched kind is whether at all the CISG covers the incorporation issue. The text of the Convention does not specifically address the question. Nonetheless, it is the clearly prevailing view that the general provisions of the Convention must answer when, in which form and under which conditions standard contract [page 305] terms are effectively incorporated into a party's contractual declaration and afterwards into a contract.[11] Since the incorporation issue is an essential part of the formation of a contract and since the CISG regulates the formation of international sales transactions conclusively it would be ineffective and contradicting if the incorporation problem would be excluded. The lack of specific provisions can and has to be overcome by redress to the provisions of the Convention on offer (Article 14 CISG) and acceptance (Article 18 CISG) and on the interpretation of the parties' declarations (Article 8 CISG).[12] Moreover, usages between the parties and international usages have [page 306] to be taken into account (Article 9 CISG) for the solution of the incorporation problem. In any event, redress to the applicable national law is excluded.[13]

Reasonableness control of standard contract terms

However, it must be borne in mind that the material validity of standard contract terms, even if they had been effectively incorporated into a contract, and in particular their reasonableness control is not covered by the Convention (see Article 4(a) CISG). This aspect is governed by the applicable national law.[14] But where the national law forbids terms which deviate too drastically from provisions prescribed by the law (like for instance § 307(2) no.1 German Civil Code [BGB]) in international sales the referred law and therefore the standard according to which the reasonableness is to be assessed is again the CISG.[15] [page 307]

Incorporation of jurisdiction and arbitration clauses

A tricky mixture between the CISG, other international regulations and the applicable national law can encounter where the incorporation of a jurisdiction or arbitration clause -- generally a standard contents of standard terms -- is at stake.[16]

Basically, the CISG does not concern jurisdiction or arbitration. These subjects are not issues of international sales of goods, and there exist specific international regulations for such clauses, both for jurisdiction and for arbitration. Jurisdiction agreements are dealt with by Article 23 Brussels I Regulation, its predecessor Article 17 Brussels Convention (still valid for Denmark), the identical Article 17 Lugano Convention and the recent Hague Convention on Choice of Court Agreements of 2005.[17] Arbitration agreements are addressed particularly by Article II UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Nonetheless, very often, if not regularly jurisdiction or arbitration clauses form part of international sales contracts. The question then arises whether despite the special regulations the CISG provisions on formation of contracts catch also the incorporation of a jurisdiction or arbitration clause into the contract and, if so, to which extent the CISG applies.

In general, the specific international regulations on jurisdiction and arbitration prevail over the CISG. They prevail in the first line ratione materiae because as mentioned the CISG does not deal with jurisdiction or arbitration.[18] As far as jurisdiction or arbitration is regulated by other "international agreements"[19] also Article 90 CISG can be advanced which gives priority [page 308] to any such agreement if the parties have their places of business in States parties to that agreement?[20] The provisions of international conventions and like agreements have to be given priority, however, only as far as they reach. Their scope of application is always limited in material respect as well as in territorial respect. Also their personal and temporal scope of application may exclude their applicability. Especially the restricted territorial scope may lead to the fact that none of the mentioned international instruments is applicable. For instance, Article 23 Brussels I Regulation applies only if the parties agreed upon the jurisdiction of the courts of an EU Member State (except Denmark) and if in addition one of the parties is domiciled in such a Member State?[21]

However, if one of the mentioned international instruments on jurisdiction and arbitration is applicable then it must be determined how far it regulates the formation of a jurisdiction or arbitration agreement. To some extent each of these instruments does; this is the case with Article 23 Brussels I Regulation as well as with Article 17 of the preceding Brussels Convention (still valid for Denmark) and with the identical Article 17 Lugano Convention and also with Article II UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. They all set out certain formal and material conditions for the necessary consent of the parties on a jurisdiction agreement. Thus, they regulate some basic elements of the formation of a jurisdiction agreement. As far as these provisions go they take precedence over the formation provisions and principles of the CISG even if the jurisdiction clause is part of an international sales transaction which falls under the CISG.

Article 23 Brussels I Regulation and likewise Article 17 of the Brussels and the Lugano Convention require consent between the parties on the choice of the forum and a certain form of the agreement. But there remain many aspects concerning the agreement on the choice of forum for which Article 23/Article 17 gives no guidance at all: for instance on capacity, agency, assignment, mistake, error, fraud, threat, duress, modification and prolongation.[22] [page 309] However, some of these aspects are covered by the CISG. Then, if it is a case to which the CISG applies this Convention has to step in. The CISG covers certain cases of error and mistake, namely an error concerning the quality, quantity, kind and package of the goods,[23] an error concerning the creditworthiness or ability of the other party to perform the contract [24] and an error in the transmission of a communication.[25] Also a modification of a contract clause and therefore also of a forum selection clause, for instance its prolongation [26] is regulated by the CISG.[27] For these aspects the CISG has then to be applied in addition to the international instrument on jurisdiction. For the then still uncovered aspects the applicable national law has to be applied.

The same reasoning applies to arbitration clauses. Article II UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 requires also an agreement -- meaning consent of the parties -- on arbitration and a certain form, namely writing but leaves open all other questions which can concern an agreement. Again, if applicable the CISG has to step in as far as it can fill gaps. Only the remaining questions are to be solved according to the applicable national law.

But the role of the CISG goes even further if none of the mentioned international instruments on jurisdiction and arbitration (including Article 23 Brussels I Regulation) is applicable. Then, the incorporation of a jurisdiction [page 310] or arbitration clause into a contract is fully covered by the CISG's provisions and principles on formation of contract if it is a CISG sale. In practice, this has the following effect: the question whether a jurisdiction clause which falls outside the scope of application of the entire Brussels/Lugano regime [28] has been incorporated into the contract has to be determined according to the CISG if the contract is else governed by the CISG. This has been rightly so decided by a US court in a French-US-Canadian sale.[29]

REQUIREMENTS FOR THE INCORPORATION

Since the CISG covers the incorporation issue but does not expressly settle it it is a matter of interpretation how this gap has to be filled. The famous Article 7(2) CISG provides for such case that the general principles must be applied on which the Convention is based. The general principles generally adhered to with respect to the incorporation issue are drawn from Article 8(2) CISG (standard of reasonable person), Article 9 CISG (prevalence of usages either among the parties or in the respective international branch), Article 14 CISG (sufficiently precise offer) and Article 18 CISG (sufficiently clear acceptance).[30] Articles 14 and 18 CISG represent the consent principle [page 311] which is specifically expressed in Article 23 CISG and also addressed in Article 29 CISG. Further general principles which have an impact on the incorporation issue are the principle of good faith in international trade as enshrined in Article 7(1) CISG as well as the principle of freedom of form (Article 11 CISG). Also the 'reaching principle' (Article 24 CISG) that in the context of the formation of contracts declarations of the parties must reach the other party must be borne in mind.

Interpretative support from international sets of Principles

Though the question is disputed and cannot be fully pursued here it is the present writer's opinion that support for the interpretation of the CISG can also be derived from international sets of rules, in particular from the UNIDROIT Principles and the Principles of European Contract Law (Lando Principles) which both contain rules on the incorporation problem. Where the CISG leaves so-called internal gaps -- matters covered but not settled in the Convention -- it is only reasonable to see how comparable international regulations fill that gap in order to get support from them for the interpretation of the CISG.[31] [page 312]

Both the UNIDROIT Principles and the Principles of European Contract Law address the contracting under standard terms.[32] The rules differ, however. The UNIDROIT Principles merely provide that the general provisions on formation of contract apply likewise to standard terms.[33] Taken strictly, this would mean that the standard terms must generally reach the other party together with the offer or acceptance.[34] As the UNIDROIT Commentary says: "Thus, standard terms contained in the contract document itself will normally be binding upon the mere signature of the contract document as a whole, at least as long as they are reproduced above the signature and not, for instance, on the reverse of the document."[35] But the UNIDROIT Commentary appears to regard also an express reference to terms outside the contract document as sufficient [36] leaving it, however, open whether those terms must then have reached the other party.[37] In case of respective practices between the parties or in case of respective international trade usages even an implied incorporation is admitted.[38]

The Principles of European Contract Law contain the following provision:

With respect to the incorporation of standard terms the Principles of European Contract Law which do not take account of any special rules for merchants or consumers but concern the 'normal' contract between private persons [39] appear to be stricter or at least clearer than the UNIDROIT Principles: the mere reference to standard terms which are not brought to the other party's attention does not incorporate these terms.[40] The party using the standard terms must therefore take steps to appropriately inform the other party of the contents of the standard terms.[41] But it has to borne in mind that while the UNIDROIT Principles intend to regulate business transactions between merchants the Principles of European Contract Law cover only what modern parlance calls C2C (consumer to consumer) transactions and C2B (consumer to business) transactions. In these transactions the use of standard terms by the consumer is not the rule but rather the exception.

Nonetheless, the provisions of both the UNIDROIT Principles and the Principles of European Contract Law show that, first, absent a practice between the parties and absent an international trade usage to the contrary a clear reference in the contract is necessary that the standard terms shall apply. Second, the other party must consent to the incorporation. Third, there must be a possibility for the other party to take notice of the standard terms. But while the Principles of European Contract Law are clear and strict in this respect that again absent practices or usages to the contrary a mere reference in the contract does not suffice and that the standard terms must be appropriately brought to the attention of the other party under the UNIDROIT Principles [page 314] it remains unclear whether the standard terms must in fact 'reach' the other party. The commenting literature does not require this effect.[42]

Where and as far as the UNIDROIT Principles and the Principles of European Contract Law are in agreement they deliver excellent evidence on an internationally acceptable solution which could and should be adopted for the filling of internal gaps of the CISG unless specific and valid reasons require another solution. But where the two sets of Principles conflict their support for the interpretation of the CISG is doubtful. One could then generally prefer the position taken by the UNIDROIT Principles because these Principles are designed for international commercial transactions and the CISG addresses also -- though not exclusively [43] -- international sales between professionals. On the other hand, the UNIDROIT Principles' position on the incorporation issue is not quite clear. Thus, for a vital point of the incorporation problem -- the question whether the user of the standard terms must bring them to the attention of the other party -- the sets of Principles do not provide a clear answer.

Reference to standard terms

Under the CISG a minimum requirement for the incorporation of standard contract terms is a clear information in the respective declaration (offer or acceptance or other communication) which is constituent for the contract that the declaration and hence the contract shall be subject to specified standard terms.[44] The information can be given in the form of a reference to the standard terms, for instance: "This [offer/acceptance/other constituent declaration] is subject to the [Buyer's/Seller's] general conditions." The reference must be contained in the text of the contractual declaration itself. If there is an offer or acceptance or a single contract document in writing it does not suffice that standard terms are printed on the back of a contract document which is signed only on the frontpage when there is no reference to the standard terms [page 315] on the frontpage.[45] Likewise the mere sending of standard terms in a separate document without any reference that they should form part of the contract does -- without more -- not incorporate them into the contract.[46]

Nothing else applies if the contract is made by electronic communication. The reference to standard terms must then be contained in the constituent electronic declaration.[47]

If the contract is made orally a clear oral reference is necessary that specified standard terms shall be part of the contract. Even the mere handing over of standard terms can suffice to incorporate them into the contract if in the light of the circumstances this fact cannot be misunderstood as the expression of the intention that the contract be subject to these standard terms.

But there exist exceptions from the requirement that the other party must be informed of the fact that standard terms apply. No reference is required if the parties have established a practice between them that their dealings are regularly subject to the standard terms of one or both parties.[48] An always renewed reference to the standard terms is then superfluous.

No reference is further required where an international usage is established that in a certain trade certain general contract conditions are always applied.[49] This can be the case particularly with respect to sales at stock [page 316] exchanges.[50] For sales of that kind it is often a usage known to all those trading there that specific general conditions apply.[51] Then, these conditions are incorporated into the contract even without any reference to them.

A last exception where the reference requirement can be dispensed with encounters where both parties tried to incorporate their standard contract terms into the contract but where the terms differ -- at least those which are in dispute in the respective proceedings. The now prevailing view favours in such a case of conflicting standard terms the knock out rule which excludes all standard terms which contradict each other.[52] It then becomes unnecessary [page 317] to examine and decide whether these terms had been validly incorporated since they are anyhow 'knocked out.'

Consent

Each party is entirely free to include into its contractual declaration (offer or acceptance) whatever contents it likes. Therefore, also any kind of standard terms can be appended. The incorporation of terms into a party's declaration is to the free discretion of this party. However, whether terms have become effectively part of the declaration of a party and their meaning is to be judged from the viewpoint of the already often mentioned reasonable person receiving the declaration in like circumstances (Article 8(2) CISG). In this respect, particularly the language of appended terms may pose a problem (which is specifically addressed a little later).

But for the valid incorporation of a party's standard terms into the contract the other party's consent is required. This follows from the general consent principle underlying Articles 14, 18 and 23 CISG: without consent no contract is concluded and also no standard terms are incorporated. It is the general view that the consent need only comprise the fact that the contract is concluded subject to standard terms. It need not specifically comprise the precise contents of each standard term. Insofar the possibility to know the contents suffices.[53]

The consent may be expressed by the consenting party's signature to the contract or other -- even oral -- express statement or by conduct from which a reasonable person would infer assent.[54] Such conduct is in particular [page 318] performance after the information that the standard terms of the other party apply.[55] Any specific assent of this kind is, however, unnecessary where a practice between the parties or an international trade usage exists that sales are concluded under certain standard conditions (Article 9 CISG).

Possibility of knowledge

The most important and most disputed element concerning the incorporation of standard terms is the standard of information the other party must be given. As already mentioned the widely accepted starting point is the requirement .that the contract partner must have a reasonable opportunity to take notice of the standard terms.[56] This requisite can be based on the CISG's principle that a declaration in order to become effective must in principle reach the other party.[57] But the views differ on what must reach the other party: only the reference to standard terms or the standard terms themselves? Put differently it is the question how far the information duty of the user of standard terms goes. The prevailing view requires him to make the terms available to the other party, generally by sending them or handing them over.[58] This [page 319] has been the solution of the German Federal Court in the above described case. In that case the Court denied a valid incorporation because the standard terms had neither been sent nor handed over nor made available in another way to the other party.[59] The Court held further that the addressee of a reference to standard terms is not obliged to inquire what the contents of those terms is.[60]

But there are also strong voices which vividly oppose the prevailing view and criticise the decision of the German Federal Court.[61] The main critique is the impracticability of the information duty for merchants who use standard terms.[62] It is also argued that the decision offends even the liberal spirit of the CISG.[63] It is regarded as reasonable and conscionable that the addressee if in doubt inquires the contents of standard terms which were not made available.[64]

The prevailing view is preferable. A contract partner who intends to make certain own provisions part of the contract acts in the own interest and can be expected to inform the other party of the contents of those terms in the sense that he makes them available to the other party. It is then the discretion of that party to take real notice of the standard terms. But it would be a wrong and unfair risk allocation -- even in commercial transactions -- if a mere reference would suffice and if the other party had an obligation to search the contents of the standard terms before the conclusion of the contract at the peril that they become binding. And since very often, if not generally both sides try to incorporate their own standard terms both users of those terms share the same burden to inform the other party. In international transactions the user's information duty is additionally justified because the used forms vary more [page 320] widely than in purely domestic transactions. Therefore, knowledge of the contents of the used standard terms cannot be simply presumed.[65]

It has also to be reminded that the Principles of European Contract Law which are based on a fair balance of interests leaving special consumer or merchants interests aside also require more than a mere reference in the contract in order to incorporate standard terms.[66] The Comment to the respective Article of the European Principles suggests that the terms must be generally attached.[67]

The critique would, however, be justified if the decision of the German Federal Court (and the prevailing view) excluded any exception.[68] But this would overstate the decision and misinterpret the majority view. In the light of the circumstances of the case the Federal Court was right to require the user of the standard terms to transmit them to the other party. But neither this decision nor the prevailing view makes the user's information duty absolute. There exists a number of exceptions.

The first one is the normal priority of practices between the parties and of international usages which follows from Article 9(1) and (2) CISG. It is selfunderstanding that this priority remains unaffected by the principle established in the Federal Court's decision. Both practices and usages prevail not only with respect to the reference requirement [69] but also and in particular with respect to the information duty on the whole standard terms. Where, for instance, prior dealings between the parties had been conducted on the basis of certain standard terms then those terms need not be transmitted further and further. They apply without such transmission.[70] The same is true where international usages exist in the particular trade concerned.[71] [page 321]

A further exception is the situation that the other party already knows the contents of the standard terms.[72] It would then constitute a useless formality and offend the principle of good faith (Article 7(1) CISG) yet to insist on a transmission of the terms. For instance, if an INCOTERM is included into the contract its contents as defined in the INCOTERMS 2000 of the International Chamber of Commerce need not be communicated to the other party.[73] In this case it can be -- and should be irrebuttably -- presumed that the other party knows the contents of the respective INCOTERM.[74] But a party may also have knowledge of the (individual) standard terms of the other party. Such knowledge cannot be presumed. But where it exists and where its existence can be proved [75] there is the user of the standard terms no longer obliged to inform the other party of their contents; a mere reference to them suffices to incorporate them into the contract.

Electronic communication

The case that the contractual declaration is made by electronic communication has to be specifically addressed. The just discussed principle applies here as well: the standard terms must be made available to the other party.[76] [page 322] When is this the case? It is rather unproblematic if the standard terms are attached to the contractual declaration. Such attachment if it can be printed or otherwise stored by the addressee [77] gives sufficient notice of the terms.[78] It must be stressed that this solution gives the user of standard terms a considerable advantage. It is the addressee who has to print or electronically store the standard terms.

More difficult is the case that the user refers merely to its website where the addressee can find the standard terms. Partly, also such reference is regarded as sufficient;[79] partly. this is denied.[80] In my view. the reference to the website alone does not suffice. It will not always be easy to find the correct standard terms since the user may offer terms in different languages or only in its own language which the addressee may not understand. Furthermore, the standard terms on the website may be subject to various modifications. Sometimes the addressee may not be able to print or otherwise reproduce the standard terms. It is not the addressee's duty to avoid these risks. This is the user's duty who is interested in the incorporation of the own standard terms into the contract.[81] Only if it is certain that by a mere click the reproducable version of the standard terms can be reached and immediately printed or electronically stored is a reference to the terms and to the click sufficient in order to incorporate them into the contract. [page 323]

Point of time

The reference to, and the availability of, standard contract terms must occur before or at the time when the contract is concluded. A reference or standard terms on an invoice which is sent only after that date does in itself not modify the concluded contract.[82]

The later sending of standard terms can, however, constitute an offer to modify the conditions of the concluded contract and it can be accepted even by mere conduct.[83] But without more the mere reproduction of standard terms on a later sent invoice or other communication does not constitute an offer to modify the contract by incorporation of the reproduced terms since a reasonable person (Article 8(2) CISG) would generally not regard such communication as an offer to modify an already existing contract. An invoice serves normally other purposes than to change the conditions of the contract to which it belongs. Therefore, it is generally also no acceptance of the standard terms if the party who has received the invoice then acts on it, for instance pays or delivers.[84] Only if a party unequivocally -- generally by express statement -- offers to change the conditions of the contract by the incorporation of the own standard terms can there be a valid acceptance even by mere conduct, for instance the performance of the contract.

The language problem

The so-called language problem or language risk deserves special attention. It concerns the question in which language the reference to the standard terms and the terms themselves must be formulated in order to become effectively part of the respective declaration and finally of the contract. [page 324]

Generally, only if formulated in the language of the contract is the necessary reference to standard terms effective.[85] The language of the contract is the language in which the parties negotiated and concluded the contract. However, if the reference is made in a language which the addressee (or its representative) in fact understands this constitutes a valid reference.[86] A reference in another language has, however, no effect.

In principle, the same considerations apply to the language of the standard terms themselves. But if in a longstanding commercial relationship a party has always accepted standard terms in a language which is neither the contract language nor understood by this party then such conduct and the principle of good faith disallows this party to object to the terms.[87]

CONCLUDING REMARKS

* Professor of Law, University of Hamburg.

1. See for a short survey over the laws of a number of European countries: Lando, O and Beale, H (2000) (eds) Principles of European Contract Law -- Parts I and II Kluwer p 150 et seq.

2. See thereon most recently Magnus, U (2007) in Cranston R, Ramberg, J and Ziegel, J (eds) Commercial law challenges in the 21st century: Jan Hellner in memoriam, Stockholm Centre for Commercial Law p 185 et seq. with a survey of scholarly writing on this topic.

3. Bundesgerichtshof (Germany), 31 October 2001, Internationales Handelsrecht 2002, 14; see thereto Berger, KP (2006), Die Einbeziehung von AGB in internationale Kaufverträge' in Berger, KP et al (eds) Zivil- und Wirtschaftsrecht im Europäischen und Globalen Kontext. Festschrift für Norbert Horn zum 70. Geburtstag De Gruyter Recht p 3 et seq; Kindler, P (2005), Ob Walzfräsmaschine oder Schreibtischsessel: Keine Obliegenheit zur AGBÜbersendung beim Vertragsschluss nach CISG!' in Lorenz, S et al (eds) Festschrift für Andreas Heldrich zum 70. Geburtstag C.H. Beck p 225 et seq; Schmidt-Kessel, M (2002), Einbeziehung von Allgemeinen Geschäftsbedingungen unter UN-Kaufrecht' Neue Juristische Wochenschrift 3444.

4. Oberster Gerichtshof (Austria), 17 December 2003, Internationales Handelsrecht 2004, 148; Oberlandesgericht Linz (Austria), 8 August 2005, Internationales Handelsrecht 2005, 249.

5. Rechtbank van Koophandel Kortrijk (Belgium), 8 December 2004, Internationales Handelsrecht 2005, 114.

6. Cour d'appel de Paris (France), 13 December 1995, CLOUT no. 203.

7. Oberlandesgericht Düsseldorf (Germany), 30 January 2004, Internationales Handelsrecht 2004, 108; Landgericht Trier (Germany), 8 January 2004, International Handelsrecht 2004, 115 (both decisions annotated by Herber Internationales Handelsrecht 2004, 117); Oberlandesgericht Köln (Germany), 24 May 2005, Internationales Handelsrecht 2006, 147.

8. Hof s'Hertogenbosch (Netherlands), 23 October 2002, Nederlands Internationaal Privaatrecht 2003 no 192; see thereto Janssen, A (2004), Die Einbeziehung von Allgemeinen Geschäftsbedingungen in internationale Kaufverträge und die Bedeutung der UNIDROIT- und der Lando-Principles' Internationales Handelsrecht 194.

9. Kantonsgericht Zug (Switzerland), 11 December 2003, Internationales Handelsrecht 2005, 119.

10. Chateau des Charmes Wines Ltd v. Sabaté USA, Sabaté S.A., 5 May 2003, Internationales Handelsrecht 2003, 295.

11. See, eg, Bundesgerichtshof (Germany), 31 October 2001, Internationales Handelsrecht 2002, 14; Oberster Gerichtshof (Austria), Internationales Handelsrecht 2004, 148; LG Trier (Germany), Internationales Handelsrecht 2004, 115; Achilles, WA (2007) 'Kommentar zum UN-Kaufrechtsübereinkommen (CISG)' in Ensthaler, J (ed) Gemeinschaftskommentar zum Handelsgesetzbuch mit UN-Kaufrecht (7th ed) Luchterhand at Art 14 para 6; Herber, R and Czerwenka, B (1991) Internationales Kaufrecht C.H. Beck at Art 14 para 11; Schnyder, AK and Straub, RM in Honsell, H (ed) (1997) Kommentar zum UN-Kaufrecht. Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG) Springer at Art 14 para 55 ; Bernstein, H and Lookofsky, J (2003) Understanding the CISG in Europe (2nd ed) Kluwer at 174 et seq; Gruber, UP (2004) in Münchener Kommentar zum Bürgerlichen Gesetzbuch Vol 3 (4th ed) C.H. Beck at Art 14 para 27; Perales de Viscasillas, P (1998), "Battle of the forms" Under the 1980 United Nations Convention on Contracts for the International Sale of Goods: A Comparison with Section 2-207 UCC and the UNIDROIT Principles' (10) Pace International Law Review 97 at 110 et seq; eadem, in Ferrari, F, Flechtner, H and Brand, R (eds) (2004) The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention Sellier 259 at 265; Piltz, B (1993) Internationales Kaufrecht C.H. Beck at § 3 para 8; Posch, W in Schwimann, M (ed) (2006) ABGB Praxiskommentar; Vol 4 (3rd ed) LexisNexis at Art 14 para 1; Saenger, I in Bamberger, HG and Roth, H (eds) (2007) Kommentar zum Bürgerlichen Gesetzbuch vol. I (2nd ed) C.H. Beck at Art 14 para 7; Schlechtriem, P in Schlechtriem, P and Schwenzer, I (eds) (2004) Kommentar zum Einheitlichen UN-Kaufrecht -- CISG -- (4th ed) C.H. Beck at Art 14 para 16; Magnus, U in (2005) J. von Staundingers Kommentar zum Bürgerlichen Gesetzbuch: Wiener UN-Kaufrecht (CISG) Sellier-de Gruyter at Art 14 para 40; Witz, W, Salger, H-C and Lorenz, M (2000) International Einheitliches Kaufrecht Recht und Wirtschaft at Vor Art 14-24 para 10; but contra -- the applicable national law governs -- for instance: Rechtbank Zutphen (Netherlands), 29 May 1997, Nederlands Internationaal Privaatrecht 1998 no. 110; Amtsgericht Langenfeld (Germany), NJW-RR 1998, 1524; Ebenroth, CT (1986), Internationale Vertragsgestaltung im Spannungsverhältnis zwischen AGBG, IPR-Gesetz und UN-Kaufrecht' Juristische Blätter 686 et seq.

12. Particularly in this sense: Oberster Gerichtshof (Austria), Internationales Handelsrecht 2004, 148; but also Achilles' Kommentar ' supra fn 11 at Art 14 para 6; Herber and Czerwenka Internationales Kaufrecht supra fn 11 at Art 14 para 11; Schnyder and Straub in Honsell Kommentar supra fn 11 at Art 14 para 55; Bernstein and Lookofsky Understanding the CISG supra fn 11 at 174 et seq; Ferrari, F (2004) in Münchener Kommentar zum Handelsgesetzbuch Vol 6 C.H. Beck at Art 14 para 38; Gruber in Münchener Kommentar supra fn 11 at Art 14 para 27; Perales de Viscasillas, Battle of the Forms' supra fn 11 at 110 et seq; eadem, in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 265; Piltz Internationales Kaufrecht supra fn 11 at § 3 para 8; Posch in Schwimann ABGB supra fn 11 at Art 14 para 1; Saenger in Bamberger & Roth Kommentar supra fn 11 at Art 14 para 7; Schlechtriem in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 14 para 16; Magnus Kommentar supra fn 11 at Art 14 para 40; Witz, Salger & Lorenz International Einheitliches Kaufrecht supra fu 11 at Vor Art 14-24 para 10.

13. See the references in the preceding fu.

14. See, e.g., Oberster Gerichtshof (Austria), 7 September 2000, Transportrecht -- Beilage Internationales Handelsrecht 2001, 42; Rechtbank Zutphen (Netherlands), 29 May 1997, Nederlands Internationaal Privaatrecht 1998 no.11 0; Amtsgericht Nordhorn (Germany), 14 June 1994, CISG-online no.259; Ferrari, F in Schlechtriem & Schwenzer Kommentar supra fu 11 at Art 4 para 20.

15. See Oberlandesgericht Zweibrücken (Germany), 31 March 1998, CLOUT (Case Law on UNCJTRAL Texts) no.272; Herber and Czerwenka Internationales Kaufrecht supra fn 11 at Art 6 para 17; Schlechtriem, P (2007) Internationales UN-Kaufrecht (4th ed) Mohr at para 34; Ferrari in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 4 para 20; Magnus Kommentar supra fn 11 at Art 4 para 26.

16. In the same sense Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 41.

17. This Convention is not yet in force.

18. Kantonsgericht Zug (Switzerland), 11 December 2003, Internationales Handelsrecht 2005, 119 with note Fountoulakis; Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 41.

19. These are only the international conventions cited above. EU Regulations like the Brussels I Regulation are specific legislative acts of European Community law but do not constitute 'international agreements' in the sense of Article 90 CISG; for a discussion of this point see Ferrari in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 90 para 3; Magnus. Kommentar supra fn 11 at Art 90 para 4 (each with further references).

20. See thereto Achilles 'Kommentar' supra fn 11 at Art 90 para 2; Huber, p in Münchener Kommentar supra fn 11 at Art 90 para 5; Schlechtriem Internationales UN-Kaufrecht supra fu 15 at para 41; Magnus Kommentar supra fn 11 at Art 90 para 11.

21. Mutatis mutandis the same is true for Article 17 of the Brussels and Lugano Convention.

22. See for a survey of these matters: Kropholler, J (2005) Europäisches Zivilprozessrecht (8th ed) Recht und Wirtschaft at Art 23 para 25; Magnus, U in Mankowski, p and Magnus, U (eds) (2007) Brussels I Regulation Sellier at Art 23 para 82 et seq; Mankowski, p in Rauscher, T (ed) (2006) Europäisches Zivilprozessrecht. Kommentar vol. 1 (2nd ed) Sellier at Art 23 para 39 et seq.

23. Errors of that kind are exclusively regulated by the provisions on the non-conformity of the goods and the respective remedies (Article 35 et seq. and Article 45 et seq CISG).

24. Article 71 CISG contains a specific rule for that case.

25. This case is regulated by Article 27 CISG.

26. The European Court of Justice has held that the prolongation of a forum selection clause is not dealt with by Article 17 Brussels Convention and must be decided according to the applicable law: S.p.A. Iveco Fiat v. Van Hool N.V., [ 1986] ECR 3337 (Case C-313/85). The ECJ has further held that the applicable law can also be the Uniform Sales Law: Custom Made Commercial Ltd. v. Stawa Metallbau GmbH, [1994] ECR 1-2913 (Case C-288/92).

27. See Article 29 CISG.

28. Generally, this concerns the territorial scope of application.

29. See Chateau des Charmes Wines Ltd. v. Sabaté USA, Sabaté S.A., 5 May 2003, Internationales Handelsrecht 2003, 295.

30. See Oberster Gerichtshof (Austria), Internationales Handelsrecht 2004,148; but also Achilles 'Kommentar' supra fn 11 at Art 14 para 6; Herber and Czerwenka Internationales Kaufrecht supra fn 11 at Art 14 para 11; Schnyder and Straub in Honsell Kommentar supra fu 11 at Art 14 para 55; Bernstein and Lookofsky Understanding the CISG supra fn 11 at 174 et seq; Ferrari in Münchener Kommentar supra fn 12 at Art 14 para 38; Gruber in Münchener Kommentar supra fn 11 at Art 14 para 27; Perales de Viscasillas, Battle of the Forms' supra fu 11 at 110 et seq; eadem, in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fu 11 at 265; Piltz Internationales Kaufrecht supra fn 11 at § 3 para 8; Posch in Schwimann AB GB supra fn 11 at Art 14 para I; Saenger in Bamberger & Roth Kommentar supra fn 11 at Art 14 para 7; Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 58; Schlechtriem in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 14 para 16; Magnus Kommentar supra fn 11 at Art 14 para 40; Witz, Salger & Lorenz International Einheitliches Kaufrecht supra fn 11 at Vor Art 14-24 para 10.

31. In the same sense see in particular Boele-Woelki, K (2001) 'Terms of Co-Existence: The CISG and the UNIDROIT Principles' in Sarcevic, P and Volken, P (eds), The International Sale of Goods Revisited Kluwer 203 et seq; Bonell, MJ (1996) 'The UNIDROIT Principles of International Commercial Contracts and the Vienna Sales Convention -- Alternatives or Complementary Instruments?' Uniform Law Review 34 et seq; Burkart, F (2000) Interpretatives Zusammenwirken von CISG und UNIDROIT Principles Nomos 249; Ferrari in Münchener Kommentar supra fn 12 at Art 7 para 61 et seq; Perales Viscasillas, P (1996) 'UNIDROIT Principles of International Commercial Contracts: Sphere of Application and General Provisions' (13) Arizona Journal of International and Comparative Law 380 at 440 et seq; Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 44; Ferrari in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 7 para 63 et seq; also Magnus, U in Cashin Ritaine and Lein (eds) (2007) The UNIDROIT Principles 2004. Their Impact on Contractual Practice, Jurisprudence and Codification 57 at 63 and Magnus Kommentar supra fn 11 at Einl zum CISG para 50 et seq.; but reluctant or contra for instance: Herber Internationales Handelsrecht 2003, I et seq.; Michaels RabelsZ 62 (1998) 606.

32. Article 2.1.19 UNIDROIT Principles; Article 2:104 Principles of European Contract Law.

33. Article 2.1.19: '(1) Where one party or both parties use standard terms in concluding a contract, the general rules on formation apply, subject to [exceptions other than the incorporation issue].'

34. The principle that a declaration must generally reach the other party in order to become effective is expressly provided for by Article 1.10(2) and (3), Article 2.1.3(1) and (2), Article 2.1.4(1), Article 2.1.5, Article 2.1.6(2), Article 2.1.9(2) and Article 2.1.10 UNIDROIT Principles.

35. See UNIDROIT (ed), UNIDROIT Principles of International Commercial Contracts 2004 (2004) 66 et seq.

36. See UNIDROIT (ed), UNIDROIT Principles of International Commercial Contracts 2004 67.

37. According to Bonell, MJ (1997) An International Restatement of Contract Law (2nd ed) Transnational 96 the mere reference suffices. In the same sense Luig, E (2003) Der internationale Vertragsschluss Peter Lang 227 et seq.

38. UNIDROIT (ed), UNIDROIT Principles of International Commercial Contracts 2004, 67.

39. See Article 1(1) Principles of European Contract Law: 'general rules of contract law'.

40. See Lando and Beale Principles of European Contract Law supra fn 1 p 149 et seq.

41. Lando and Beale Principles of European Contract Law supra fn 1 p 150; also Luig Der internationale Vertragsschluss supra fn 37 p 228 et seq.

42. See the references supra fn 38.

43. There is a certain though rather limited overlap with consumer sales to which the CISG can apply due to Article 2(a) CISG.

44. See for instance Cour d'appel de Paris (France), 13 December 1995, CLOUT no.203.

45. Amtsgericht Nordhorn (Germany), 14 June 1994, UNILEX.E.1994-12; Cour d'appel de Paris (France), 13 December 1995, CLOUT no 203. It may be added that the European Court of Justice has come to the same decision with respect to jurisdiction clauses which are printed on the back of a contract but not referred to on its -- signed -- frontpage; see European Court of Justice [1976] ECR 1831 (Case 24/76, Colzani v. ROWA).

46. Cour d'appel de Paris (France), 13 December 1995, CLOUT no. 203; also Gruber in Münchener Kommentar supra fn 11 at Art 14 para 32.

47. But see thereto also infra p 322 et seq..

48. Bundesgerichtshof (Germany), 31 October 2001, Internationales Handelsrecht 2002, 14; Oberster Gerichtshof (Austria), 31 August 2005, Internationales Handelsrecht 2006, 31; Gruber in Münchener Kommentar supra fn 11 at Art 14 para 28; Ferrari in Münchener Kommentar supra fn 12 at Art 14 para 39; Piltz Internationales Kaufrecht supra fn 11 at § 3 para 8; Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 58; Schlechtriem in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 14 para 16; Magnus Kommentar supra fn 11 at Art 14 para 41.

49. Gruber in Münchener Kommentar supra fn 11 at Art 14 para 28; Ferrari in Münchener Kommentar supra fn 12 at Art 14 para 39; Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 268; Piltz Internationales Kaufrecht supra fn 11 at § 3 para 8; Posch in Schwimann ABGB supra fn 11 at Art 14 para 1; Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 58; Schlechtriem in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 14 para 16; Magnus Kommentar supra fn 11 at Art 14 para 41.

50. However, only unless these sales are made by way of auction which Article 2(b) CISG excludes from the scope of application of the Convention.

51. See the example of a brokerage contract given by the UNIDROIT Commentary 67.

52. See for instance (though the language is not always unambiguous) Bundesgerichtshof(Germany), 31 October 2001, Internationales Handelsrecht 2002, 16; Cour de cassation (France), Droit d'affaires 1998, 1694; Oberlandesgericht Köln (Germany), Internationales Handelsrecht 2006, 147; Oberlandesgericht Linz (Austria), Internationales Handelsrecht 2007, 123; Amtsgericht Kehl (Germany), NJW-RR 1996,565; Achilles 'Kommentar' supra fn 11 at Art 19 para 5; van Alstine, MP (1995) Fehlender Konsens beim Vertragsabschluss nach dem einheitlichen UN-Kaufrecht Nomos p 220 et seq.; Audit, B (1990) La vente internationale de marchandises LGDJ at n 71; Bernstein and Lookofsky Understanding the CISG supra fn 11 at 61 et seq; Brunner, C (2004) UN-Kaufrecht -- CISG Stämpfli at Art 4 para 44; Karollus, M (1991) UN-Kaufrecht Springer p 70 et seq; Kramer, EA (2004) 'Konsensprobleme im Rahmen des UN-Kaufrechts' in Fischer-Czermak et al (eds) Festschriftfür Rudolf We/ser zum 65. Geburtstag Manz p 539 et seq.; Magnus supra fn 3 at 193 et seq; Gruber in Münchener Kommentar supra fn 11 at Art 19 para 24; Saenger in Bamberger & Roth Kommentar supra fn 11 at Art 19 para 3; Schlechtriem Internationales UN-Kaufrecht supra fn 15 at para 92; Schlechtriem in Schlechtriem & Schwenzer Kommentar supra fu 11 at Art 19 para 20; Schwenzer, I and Mohs, F (2006) 'Old Habits Die Hard: Traditional Contract Formation in a Modem World' Internationales Handelsrecht 244; Lüderitz, A and Fenge, A in Soergel, HT (2000) Bürger/iches Gesetzbuch, vol. 13: Schuldrechtliche Nebengesetze -- CISG (13th ed) Kohlhammer at Art 19 para 5; Magnus Kommentar supra fu 11 at Art 19 para 24; cautiously also Meeusen in van Houtte, H, Erauw, J and Wautelet, P (eds) (1997) Het Weens Koopverdrag Intersentia p 93 et seq; but there are also contrary voices: see for instance Herber and Czerwenka Internationales Kaufrecht supra fn 11 at Art 19 para 18; Schnyder and Straub in Honsell Kommentar supra fn 11 at Art 19 para 37 et seq (with some exceptions); Moccia, C (1989/90) 'The United Nations Convention on Contracts for the International Sale of Goods and the "Battle of the Forms"' (13) Fordham International Law Journal 649 at 659; Ferrari in Münchener Kommentar supra fn 12 at Art 19 para 15; Pilar Perales . Viscasi11as Pace International Law Review 2002, 157 et seq (though with some reluctance); eadem, in: Felemegas, J (ed) (2007) An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law Cambridge University Press p 318; Reinhart, a (1991) UN-Kaufrecht Müller at Art 19 para 8.

53. See thereto below p 319 et seq.

54. Conduct indicating assent is sufficient according to Article 18(1) CISG.

55. See Oberlandesgericht Linz (Austria), 8 August 2005, Internationales Handelsrecht 2005, 249.

56. See Bundesgerichtshof (Germany), 31 October 2001, Internationales Handelsrecht 2002, 14; Oberster Gerichtshof (Austria), Zeitschrift für Rechtsvergleichung 1996, 248; Oberlandesgericht Düsseldorf (Germany), NJW-RR 2001, 1562; Hof 's-Hertogenbosch (Netherlands), 23 October 2002, Nederlands Internationaal Privaatrecht 2003 no. 192; further Achilles 'Kommentar' supra fn 11 at Art 24 para 7; Bernstein and Lookofsky Understanding the CISG supra fn 11 at 174 et seq; Gruber in Munchener Kommentar supra fn 11 at Art 14 para 29; Ferrari in Munchener Kommentar supra fn 12 at Art 14 para 39; Lüderitz and Fenge in Soergel Burgerliches Gesetzbuch supra fn 52 at Art 14 para 10; Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 268 et seq; Piltz, B (2004), AGB in UN-Kaufvertr11gen' Internationales Handelsrecht 2004, 133 et seq.; Schlechtriem in Schlechtriem & Schwenzer Kommentar supra fn 11 at Art 14 para 16; Schwenzer and Mohs 'Old Habits' supra fn 52 at 241; Magnus Kommentar supra fn 11 at Art 14 para 41; Witz, Salger & Lorenz International Einheitliches Kaufrecht supra fn 11 at Art 14 para 12.

57. See Article 15(1), Article 18(2), Article 24 CISG; in the same sense Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 269.

58. See the references in the preceding fu.

59. Bundesgerichtshof (Germany), 31 October 2001, Internationales Handelsrecht 2002, 14.

60. BGH ibid.

61. See for instance Berger, Die Einbeziehung von AGB' supra fn 3 p 3 et seq; Kindler, Ob Wa1zfrasmaschine oder Schreibtischsessel' supra fn 3 p 225 et seq; Schmidt-Kessel, Einbeziehung yon Al1gemeinen Geschäftsbedingungen' supra fn 3 at 3444 et seq.

62. Berger, Die Einbeziehung yon AGB' supra fn 3 p 16 et seq; Kindler, Ob Walzfrasmaschine oder Schreibtischsessel' supra fn 3 p 234.

63. Kindler, Ob Walzfrasmaschine oder Schreibtischsessel' supra fn 3 p 233.

64. Berger, Kindler, Schmidt-Kessel ibid.

65. In this sense expressly Bundesgerichtshof (Germany), 31 October 2001, Internationales Handelsrecht 2002, 14.

66. See supra p 313 et seq.

67. Lando and Beale Principles of European Contract Law supra fn 1 p 149.

68. As argued by Schmidt-Kessel, Einbeziehung von Allgemeinen Geschäftsbedingungen' supra fu 3 at 3444 et seq.

69. See supra p 315 et seq.

70. See Oberster Gerichtshof (Austria), 31 August 2005, Internationales Handelsrecht 2006, 31.

71. As for instance usages at stock exchanges.

72. Also Huber, P and Kröll, S (2003) 'Deutsche Rechtsprechung zum UN-Kaufrecht in den Jahren 2001/2002' Praxis des Internationalen Privat- und Verfahrensrechts 309 at 311; Gruber in Münchener Kommentar supra fn 11 at Art 14 para 31; Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 269.

73. See also Schmidt-Kessel, Einbeziehung von Allgemeinen Geschäftsbedingungen' supra fn 3 at 3444 et seq. (arguing, however, that the decision of the Federal Court would require the communication of the ICC definition).

74. The same solution should apply in case of other equally known and widely used standard forms, for instance, the Uniform Customs and Practice for Documentary Credits of the ICC. For standard contract forms used only in a certain trade, for instance in the grain market, the concrete knowledge of the addressee should be required (and proved); see similarly Gruber in Münchener Kommentar supra fn 11 at Art 14 para 31.

75. This would be, eg, the case where the user had already sent the standard terms (together with an offer) on a prior occasion which, however, neither resulted in negotiations nor in the conclusion of a contract and did therefore not establish a practice between the parties.

76. See for instance Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 270; Piltz, AGB in UN-Kaufvertrügen' supra fn 56 at 134; Magnus Kommentar supra fn 11 at Art 14 para 41a.

77. In order to avoid that the addressee cannot examine and prove the precise contents of the standard terms at a later date.

78. See Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fu 11 at 270; Piltz, AGB in UN-Kaufverträgen' supra fn 56 at 134; Magnus Kommentar supra fu 11 at Art 14 para 41a.

79. Gruber in Münchener Kommentar supra fn 11 at Art 14 para 31; Perales de Viscasillas in Ferrari, Flechtner & Brand The Draft UNCITRAL Digest supra fn 11 at 269; Stiegele, A and Halter, R (2003), Nochmals: Einbeziehung von Allgemeinen Geschäftsbedingungen im Rahmen des UN-Kaufrechts -- Zugänglichmachung im Internet' Internationales Handelsrecht 169.

80. Piltz, AGB in UN-Kaufverträgen' supra fn 56 at 134; Magnus Kommentar supra fn 11 at Art 14 para 41a; Ventsch, V and Kluth, P (2003), UN-Kaufrecht: Keine Einbeziehung von AGB durch Abrufmöglichkeit im Internet' Internationales Handelsrecht 224 et seq.

81. Magnus Kommentar supra fn 11 at Art 14 para 41a.

82. See Rechtbank van Koophandel Kortrijk (Belgium), 8 December 2004, Internationales Handelsrecht 2005, 114; Oberlandesgericht Celle (Germany), 6 December 2005, Internationales Handelsrecht 2006, 84 (though it remains unclear whether the Court based its decision in that respect on the CISG, on Article 23 Brussels I Regulation or on national [German] law).

83. See Chateau des Charmes Wines Ltd. v. Sabaté USA, Sabaté S.A., 5 May 2003, Internationales Handelsrecht 2003, 295. See also Article 18(1) CISG which provides however that mere silence or inactivity does not suffice.

84. Chateau des Charmes Wines Ltd. v. Sabaté USA, Sabaté S.A., 5 May 2003, Internationales Handelsrecht 2003, 295.

85. Oberster Gerichtshof (Austria), 17 December 2003, Internationales Handelsrecht 2004, 148.

86. Oberster Gerichtshof (Austria), 31 August 2005, Internationales Handelsrecht 2006, 31.

87. Similarly Oberlandesgericht Hamm (Germany), Praxis des lnternationalen Privat- und Verfahrensrechts 1996, 197; Gruber in Münchener Kommentar supra fn 11 at Art 24 para. 20.