Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
C. Acceptance of an Offer [see also Formation of the Contract: Basic Principles and Open Questions]
The acceptance of an offer can be communicated verbally or by conduct indicating assent (Article 18(1) sentence 1). Whether conduct should be interpreted as acceptance is determined by Article 8. According to Article 18(1) sentence 2, silence or inactivity as a reaction to the offer does not indicate acceptance. This rule, an extension of the idea behind ULF Article 2 sentence 2, is intended to prevent the offeree from being taken by surprise (such as when a shipment of unordered goods is sent with an offer stating that by not returning the goods the offeree accepts the offer). The wording "in itself" makes it clear, however, that silence in connection with other circumstances can be considered as acceptance, particularly on the basis of Article 8(3).[175a] In addition, silence can, as an exception to the rule, have the effect of acceptance on the basis of usages which are legally relevant under Article 9.
Ordinarily an acceptance is not effective until it reaches the offeror (Article 18(2) sentence 2). It can be withdrawn if the withdrawal reaches the offeror before or at least at the same time as the notice of acceptance (Article 22). As an exception to the rule, conduct by the offeree may indicate assent and thereby be considered an effective acceptance (Article 18(3)) if the offer himself waives a verbal statement or if his conduct is assumed to have this meaning by practices established between the parties or usages. Examples of such acts - which are considered equivalent to acceptance and thus mean that a contract is concluded - are the shipment of goods or payment of the price. Notification to the offeror is then not necessary. This provision essentially conforms to the German Civil Code (§151) and ULF (Article 6).
According to Article 18(2) sentence 2 and (3), a contract is generally not formed if the notice of acceptance or conduct equivalent to acceptance is late, i.e., occurs after the offer has expired. If a time limit neither is set by the offeror nor is apparent from the circumstances, an oral offer must be accepted immediately (Article 18(2) sentence 3), whereas other offers must be accepted within a reasonable time (Article 18(2) sentence 2). The length of this reasonable time depends on the circumstances of the transaction, including the offeror's chosen means of communication. CISG thereby corresponds to the Hague Convention (ULF Article 8(1)) and presumably the definition of an oral expression of acceptance should be interpreted in the same way: Communications by telephone as well as by other technical and electronic means which make oral messages immediately intelligible and allow a direct reply by the same means are governed [page 54] by the same rule; on the other hand, telex or tape-recorded messages sent by mail, for example, are not considered oral.[page 55]
* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.(...)
175. The words "or inactivity" were inserted on the basis of a British motion (A/Conf. 97/C.1/L.56) (= O.R. 95). They were intended to indicate that totally passive behaviour is to be treated the same as silence.
175a. Accord Honnold, Commentary § 160.
176. See supra at IV.C.; A/Conf. 97/C.1/SR.6 at 11 § 88 (= O.R. 264) (position of the U.S. delegate); see also Secretariat's Commentary at 62 § 4.
177. A corresponding U.S. proposal (A/Conf. 97/C.1/L.57= O.R. 95) found no support and was therefore withdrawn. See A/Conf. 97/C.1/SR.9 at 10 (= O.R. 281). See also Honnold, Commentary § 164 (proposing that assent may be indicated by arrival of the goods or by notice that a requested act has been performed).
178. See Dölle (Schlechtriem) ULF Article 8 § 12.
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