Published by Manz, Vienna: 1986. Reproduced with their permission.

[Article 24] [see also Formation of the Contract: Basic Principles and Open Questions]

(...)

As in the Hague Convention, the "offer" and the "acceptance" as well as the withdrawal of such declarations and the rejection of an offer are only effective if they reach the other party.[155] Article 24, like ULF Article 12(1) and the German Civil Code, provides that a "materialized" expression of intent has reached the addressee when it reaches his sphere of control - or, in more concrete terms, when it is delivered to him. Delivery should occur preferably in person, alternatively to the place of business or mailing address,[156] and finally to the habitual residence. Even though the Convention, unlike ULF Article 12(2), does not specify that the declaration must have been "intelligible" for the delivery to be effective, the requirement presumably applies to the Convention as well.[157] [page 49]

For oral declarations, however, the theory of cognizance should apply under Article 24, i.e., the declaration must have been perceived by the addressee. Whether or not an intent expressed orally or in writing to an intermediary may constitute effective delivery depends on that person's authority, a question which is determined by domestic law.[158][page 50]

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FOOTNOTES

* 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.

155. See Articles 15(1) (offer), 15(2) (withdrawal of the offer), 16(1) (rejection of the offer), 18(2) sentence 1 (acceptance), 22 (withdrawal of the acceptance).

156. "Mailing address" means the place where mail is received, such as a mail box, but not an address that has been changed - such as by a move - and not yet corrected.

157. The means of communication which must be "appropriate in the circumstances" must also be intelligible, but Article 27 concerns only the declarations under Part III that are effective upon dispatch.

158. Cf. Secretariat's Commentary at 72 § 6.

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