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Reproduced with permission from 33 American Journal of Comparative Law (1985) 233-258

The "Battle of the Forms" Under the 1980 United Nations Convention on Contracts for the International Sale of Goods

François Vergne [*]

The 1980 United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as "the Convention") is the first universal legal instrument intended to govern the most common contract within the international economic community.

The second part of the Convention (Article 14-24) deals with the formation of the contract. The Convention, like the 1964 Hague Convention on the Formation of Contracts for the International Sale of Goods, addresses the two basic problems that are central to traditional domestic rules: offer and acceptance.

This paper will first analyze Article 19 [1] of the Convention in relation to the practical problems that arise when the offer and the acceptance do not precisely match. Four examples of battle of the forms will be considered.

The paper will then focus on the solutions given by two common law systems: English and American law. For civil law the question will be considered in the setting of the French law of contracts, and a brief comparison will be made between the solutions given in French, German, Swiss, Scandinavian and Japanese law. After considering the diverse approaches that led to the adoption of the Convention, the paper will turn to the Convention itself and will eventually focus on some problems which might arise from the application of Article 19.

Scheme of Approach

A. General Considerations

Article 19 of the Convention opens by stating that when the reply to an offer purports to be an acceptance but contains additions, limitations, or other modifications, the reply is a rejection of the offer and comprises a new offer. However, the Convention recognizes that this simple approach does not always address the complexities of modern commercial practice: a second paragraph addresses cases where the modifications in the reply do not materially alter the terms of the offer. In this case, if the original offeror, without undue delay, objects to the modification, the basic rule stands: the reply is not effective as an acceptance. On the other hand, if the original offeror does not object, his silence is construed as an acceptance. How to distinguish between a material and a non-material modification raises difficulties. The answer is given in the third paragraph of Article 19, which specifies that modifications relating to price, payment, quantity and quality of the goods, place and time of delivery and the extent of liability of one party to the other are deemed material. In this enumeration, the main elements of a contract are listed.

This article clearly purports to diminish conflict which might arise between a buyer and a seller when they use different standard printed forms to record the terms of the bargain upon which they are willing to make a contract. The term "battle of the forms" denotes this situation: it serves "to describe effects of multiple of forms used by buyers and sellers to accept and confirm terms expressed in other forms."[2]

Following the mirror-image rule, most of the theories of formation of contracts provide that a contract is not formed unless offer and acceptance correspond exactly. If there is any difference, the purported acceptance amounts to a rejection which constitutes a new offer or counter-offer.

The Convention's modification of the basic mirror-image rule rests on the following assumption: where an "acceptance" contains immaterial modifications and the offeror does not object, the parties probably believe that they have entered into a contract, and reliance interest begins to develop. The seller may invest resources in production or shipment (or both); the buyer may pay for and receive the goods, put them into use or resell them to a customer. The Convention is premised on the idea that, at least at some point, the parties' reliance on the transaction deserves protection. On these assumptions, the significant questions of policy are these: (1) at what point in the developing relationship is it too late to conclude that no contract was formed?; (2) where a contract was formed, what are its terms?

In most cases of discrepancy between the standard conditions put forward by each of the parties, the contract will not be jeopardized (since usually the discrepancy remains unnoticed) until a dispute arises which involves a choice between the conflicting terms or the existence of the contract. The conflicting terms are more often used as a means to avoid the contract than as the reasonable ground of a dispute.

It is well recognized that disputes arising out of the battle of the forms do not happen very frequently. But when they do, they are very difficult to resolve, both domestically and in the international community, especially since the different legal systems have not found ways to decide what has been agreed upon among the parties when they have dealt with inconsistent forms.[3]

East-West Division

Article 19 of the Convention was one of the four main issues of the Vienna Conference dividing the Socialist and Western legal systems.[4] This division can be observed throughout the whole process toward the elaboration of the text.

This question first gave rise to certain confrontations among the members of the working group established by the United Nations Commission on International Trade Law (UNCITRAL) as early as September 1977 when Article 13 of the Draft Convention was put on its agenda.[5] Amendments were proposed to delete the second paragraph of the article. The reason given was that it would avoid difficulties of interpretation as to what constituted a non-material alteration. The proponents emphasized the importance of the principle that the parties must agree on every point in order to reach a contract.[6] This proposal was finally rejected.

The opposing views were accentuated during the preparation of the 11th session of UNCITRAL in the spring of 1978. Comments submitted by governments on the draft prepared by the working group properly reflect the opposing concerns of the Socialist and Western countries. This is exemplified by the reactions of Czechoslovakia, Yugoslavia and the German Democratic Republic.[7] Even though these governments acknowledged the fact that the Draft Convention supplied "[a] good basis for preparation of a definitive draft which may result in a uniform law," they all indicated their concerns that: a) a reply to an offer with additional or different terms should never be considered as an acceptance and the parties should agree on all points upon which an agreement is to be achieved; b) the terms "materially alter" were too vague, and; c) the draft did not consider standard contracts and the battle of the forms.

The next step was the 11th session of UNCITRAL in New York in May and June 1978. UNCITRAL deliberated on Article 13 of the Draft Convention at its 199th and 202nd meetings.[8] At that time, the representative of the United States expressed the view that the provision was necessary since in his country, "[m]any attempts had been made to deal with the problem provided for in paragraph 2, as it was quite a common occurrence for commercial transactions to go ahead without a formal conclusion of a contract by offer and acceptance." To varying degrees, the representatives of the Eastern European Countries were in favor of an adaptation of the text in order to increase certainty in its application.

The concerns of these countries can be divided into three groups. First were the delegations which supported the text of Article 13 subject to very minor changes (Hungary and the G.D.R.). Their representatives expressed the opinion that the current wording would protect the interests of the weaker party in a transaction. According to a second viewpoint (Czechoslovakia), since paragraph 2 would lead to difficulties of interpretation, it should be limited to mere differences in wording, grammatical changes or insignificant errors. The third viewpoint (U.S.S.R. and Poland) was expressed by delegations which first opposed the retention of paragraph 2 and then suggested that an attempt should at least be made to define what would constitute a material alteration of an offer.

To settle these viewpoints and reach a commonly acceptable formulation of Article 13, a working group was organized. A compromise was arrived at whereby paragraph 2 was retained, but a third paragraph was added [9] which significantly reduced the ambiguities of the term "materially alter" by giving a non-exhaustive list of material alterations.

In spite of this compromise, which was considered to be a model of its kind, the chaotic legislative history of Article 19 was not yet over. At the diplomatic conference of March 1980 in Vienna, Article 19 was once again the subject of controversy. The ambiguities so often addressed during the travaux préparatoires provided the plenipotentiaries with one last occasion to express their diverging viewpoints.[10]

The representatives of Bulgaria, emphasizing the incompatibility between the principle of Article 16(1) of the draft that there could be no contract without agreement by the parties on all points and Article 17(2)and (3), proposed the deletion of these two paragraphs by invoking the fundamental consideration of "[c]ertainty and security of international trade relations". This amendment was not adopted, but a compromise proposed by the same representative and aimed at the deletion of the last sentence of Article 17(3) was adopted.[11] The representative of Czechoslovakia, in order to demonstrate his support of the positions of his delegation at the previous session of UNCITRAL, opposed possible misinterpretation of the word "materially" and supported the Bulgarian amendment. Later, he opposed a French amendment designed to limit the enumeration of paragraph 3 to terms relating to the price, quality and quantity of the goods. He argued that "[m]atters such as the place and time of delivery or the extent of liability were very important and therefore should be considered material." Bulgaria in an attempt to leave the door open to any interpretation, insisted that the terms listed in paragraph 3 were simply examples and that others should be listed to make the sense of the paragraph clearer.

The common objective underlying these positions expressed by the Socialist participants to UNCITRAL was the promotion of the interest of the security of contractual transactions. It has been underscored that this quest for security and foreseeability is a salient feature of the Socialist approach and reflects the requirements of a planned economy.[12] Another point must be considered in evaluating the reasons for this division between the Socialist and the Western approach of Article 19: the Eastern European countries involved in the preparation of the Convention are all members of the Council for Mutual Economic Assistance (CMEA).[13] Half of the active CMEA members became signatories of the Convention. Since 1951, these countries have established a network of bilateral agreements providing for the mandatory use of a set of rules denominated "General Conditions for the Delivery of Goods".[14] These General Conditions provide rigid rules regarding the formation of the contract. Specifically, they require that acceptance of an offer be unconditional,[15] and that case law only allow minor modifications.[16] This explains the concerns of the Socialist countries participating in the works of UNCITRAL and their intent to promote a set of rules as close as possible to their own General Conditions. It also explains the proposal made in February 1980 by the Secretary of the CMEA to UNCITRAL that an article be added to the draft, guaranteeing that the Convention would not prevail over other conventions already entered into and containing provisions on the matters governed by the Convention.[17] This proposal became Article 90 of the text of 1980.

B. A Scheme of Approach

To better understand what is encompassed by the concept of the battle of the forms, it may be helpful to consider several simple hypotheses of discrepancies between offer and acceptance as they can arise in commercial transactions when the parties purport to contract with standard forms.

Four examples of possible battles of the forms will be laid out, and will be analyzed in the setting of the various legal systems under consideration and the Convention.

Example 1 [18]: On June 1, S delivered to B a sale order form that proposed the sale of 100 bags of sugar on specified terms, including shipment on 1 July. Printed provisions on the back of the form included the statement: "The goods will be packaged in sound bags." On June 5, B delivered to S a purchase order form that purported to accept S's offer. The back of the purchase order had printed terms that, in general corresponded with those on S's form but included the statement: "Shipment in new packages or bags." S did not object to B's purchase order and expected to ship the sugar on 1 July in new bags. On 25 June there was a sharp drop in the price of sugar. B consulted his lawyer to see whether he was legally bound. Comparison of the two forms revealed the divergence as to "new bags" and on 27 June B cancelled the order on the ground that S had not accepted his offer of 5 June.

Example 2: B, an equipment dealer (offeror), wants to enter into a contract with S (offeree), a manufacturer, for the purchase of a machine tool. On 1 March, B mails a letter to S enclosing a purchase order form for a specified machine tool. On 8 March, S sends a printed form accepting B's order but adding a jurisdictional provision for resolution of disputes. Do they have a contract?

Example 3: S offers to sell a machine tool to B. The offer is on standard terms "which shall prevail over any terms and conditions in buyer's order" and which includes a price variation clause for increased costs. B's order form is a standard form materially different which states: "we accept your order on the terms and conditions stated thereon." S signs and returns the slip together with a letter stating: "we are executing the order on the terms of our offer." The machine is then manufactured but before the delivery, S sought to invoke the price variation clause. B protested.

Example 4: B made an offer on a purchase order form to buy a barrel of glue from S. His offer made no mention of warranties other than a line on the back of the form stating that the contract will be performed with "normal conditions of warranty". S sent an acknowledgment form stating: "we sell our products without any warranties as to quality, but we shall replace them if defective." B did not object to this acceptance. The glue was delivered. B accepted the glue, paid for it and used it. It did not stick, and B suffered extensive damages. He now sues S.

Battle of the Forms under the Common Law System

The following is a consideration of the battle of the forms as handled in English and American law.

A. The English Approach

1. The Classical Rule:

The English approach leads to a consideration of the classical theory set forth at common law. Under this theory, a contract is not formed unless the acceptance corresponds exactly to the terms of the offer. That is the so-called "mirror image rule". An acceptance which is not in conformity with the offeror's terms is considered as a rejection of the offer.[19] It may even be a counter-offer which the previous offeror can accept or reject.

A counter-offer is not only a non-acceptance of the offer, but is also a rejection of the original offer, which cannot be accepted subsequently by the offeree. In the famous English case of Hyde v. Wrench,[20] A offered to sell B a property for £ 1000. B, in his response, offered £ 960, which A refused. Then B agreed to give A £ 1000, but A refused to sell. B sued for specific performance of the alleged contract. The Court held that B's offer to buy at £ 950 in response to the offer was a refusal followed by a counter-offer, and that no contract was formed. In a situation where a purported acceptance introduces new terms, no contract is formed, the initial offer has been rejected, and a counter-offer has been made. In the case of Jones v. Daniel,[21] where in response to an offer to buy property for £ 1450, the offeree's attorney wrote to accept the offer and enclosed a draft contract containing special terms not referred to in the offer. The Chancery Division held that even though there was an agreement as to the price, there was no contract between the parties.

In the case of Brogden v. Metropolitan Railway Co.,[22] A sent B a draft contract which provided that any dispute between the parties would be submitted to an arbitrator. The name of the arbitrator was left blank. B sent the draft back to A with his signature and the insertion of the name of an arbitrator. A dispute subsequently arose and the House of Lords held that the arbitration provision and the contract were valid. In effect, though the insertion of the name amounted to a material alteration so that the offer and the acceptance did not match, the silence of A amounted to an acceptance of B's counter-offer.

This rigid rule is nevertheless tempered. Thus when an additional term to an offer makes express what would otherwise be implied by law, it does not prevent a contract. In the same way, an acceptance purporting to add new terms to the exclusive benefit of the offeror (i.e., to permit late payment in return for specified interest) will not be considered as a counter-offer.[23] The line of demarcation is quite precise: in Nicolene Ltd. v. Simmonds,[24] where A offered to buy from B steel bars at a certain price, B replied by letter, stating that he was happy to supply the goods ordered and adding that he assumed that they were in agreement that the "usual conditions of acceptance" applied. A acknowledged receipt of the letter and said that he was waiting for the goods but did not refer to usual conditions of acceptance. B later alleged that there was no contract since the parties did not reach agreement on the conditions of acceptance. He contended that his letter was at best a counter-offer which had not been accepted. Considering that there were no "usual conditions of acceptance", the Court of Appeal held in favor of A, Lord Denning stating that "[i]t would be strange indeed if a party could escape from every one of his obligations by inserting a meaningless exception." In the same manner a mere request for information included in the acceptance will not be considered a rejection: an acceptance which asks for special indulgences to the offeree is effective if the offeree is ready to perform the contract even if the indulgences are not granted.[25] In such situations, the test used by the courts will be whether a reasonable person would consider the alleged acceptance as introducing a new term to the bargain. Despite these nuances, English case law makes it clear that offer and acceptance must conform in order to lead to a valid contract, and the mirror image rule is dominant.

In a case of battle of the forms, the theory of Hyde v. Wrench applies: submitting the first set of terms can amount to an offer and sending different standard terms to the offeror amounts to a rejection of this offer. It is a counter-offer which the original offeror can accept or reject. The process of the battle of the forms continues until an act accomplished by a party can be considered to amount to an acceptance of the terms submitted by the other. Under this view, the last shot wins the battle.

A classical example of battle of the forms is the case of B.R.S. v. Arthur V. Crutchley Ltd. [26] The plaintiff delivered a consignment of whisky to the defendants for storage in a warehouse. The plaintiff's driver brought a delivery note purporting to incorporate the plaintiff's conditions of carriage (first shot). The delivery note was rubber stamped by the defendant with the words "received under (defendant's) conditions" (second shot). The delivery note (thus converted into a receipt) was handed back to the driver who brought his load into the warehouse. The Court of Appeal, applying the traditional theory, held in favor of the defendant (second shot), reasoning that the defendant's stamped conditions amounted to a counter-offer which was accepted by the plaintiff since they handed over the goods.[27]

2. The Modern Approach:

This traditional theory has been criticized mostly on two grounds:[28] first it may encourage businessmen to fire salvos of standard forms at each other in the hope of firing the last shot. Secondly, it puts the party who receives the acknowledgment (generally the buyer) in an invidious position: if the seller does not deliver at all, there is no contract and the buyer has no claim. If the seller delivers but a dispute then arises, the buyer may have impliedly accepted the seller's terms by taking delivery.

The traditional theory was reviewed by the Court of Appeal in Butler Machine Tool Co. Ltd v. Ex-Cell 0. Corp. (England) Ltd. [29] (hereinafter referred to as the Butler Case). The seller had offered to sell a machine tool to the buyer. The offer was on a standard form which terms "shall prevail" over any terms and conditions in the buyer's order and which included a price variation clause for increased costs. B's order form was different and stated that the price was fixed; it included a tear-off acknowledgment which stated: "we accept your order on the terms and conditions stated thereon." S signed and returned the slip together with a letter stating that they were executing the order on the terms of their own offer. The machine was manufactured, but before delivery S sought to invoke the variation clause. The buyer protested, claiming that the contract had been concluded on its terms. The Court of Appeal unanimously found in favor of the buyer. The Court was unanimous about the result but divided about the means in reaching it. Lawton and Bridge L. JJ. adopted the traditional rule according to which the seller by completing the tear-off slip on the buyer's form and returning it had accepted the buyer's terms, which were a counter-offer. Lord Denning accepted that analysis but submitted a certain number of solutions adapted to the resolution of such problems in battles of the forms. Lord Denning's approach leads to separating the question of the formation of the contract from the determination of its content. To that extent, it is similar to the American approach under Article 2-207 of the Uniform Commercial Code. When the parties have reached agreement on all material points, there is a contract even though there may be differences between the forms and the conditions printed in the back of them. Hence when a battle of the forms arises there is usually a contract " [a]s soon as the last of the forms is sent and received without objection being taken on it."[30] At this point the problem is one of determination of the content of the contract. Lord Denning suggests three ways for this determination:

"[i]n some cases the battle is won by the man who fires the last shot. He is the man who puts forward the latest terms and conditions: and if they are not objected to by the other party, he may be taken to have agreed upon."

This approach is consistent with the traditional theory. But Lord Denning suggests two other possibilities:

"[I]n some cases, however, the battle is won by the man who gets the blow in first. If he offers to sell at a named price on the terms and conditions stated on the back and the buyer orders the goods purporting to accept the offer on an order form with his own different terms and conditions on the back then, if the difference is so material that it would affect the price buyer ought not to be allowed to take advantage of the difference unless he draws it specifically to the attention of the seller.
"[T]here are other cases where the battle depends on the shots fired on both sides. There is a concluded contract but the forms vary. The terms and conditions of both parties are to be construed together. If they can be reconciled so as to give a harmonious result, all well and good. If differences are irreconcilable, so that they are mutually contradictory, then the conflicting terms may have to be scrapped and replaced by a reasonable implication."[31]

This modern approach has been criticized by many commentators.[32]Such criticisms emphasize four points: first, in commercial practice, the new approach does not discourage the firing of salvos by businessmen. Second, the result reached in the Butler case would be absurd. If the Court of Appeal were to find a contract where no agreement was made since no price had been agreed upon -- the practical result would be a "contract by disagreement". Third, Lord Denning's approach confuses the distinct concepts of the very existence of the contract on one hand and the effect of a discrepancy between offer and acceptance on the other. Fourth, this approach requires a difficult categorization of different terms: the "material points" on which agreement is required for formation; the material differences affecting the price on which agreement is not required but which must be noticed; all the other terms. This last problem moreover exists under every legal system.

Despite such criticism, Lord Denning's alternative to the classical rule complements the theory of formation with the notions of substantial and ancillary terms of the contract. In this regard, it conforms to the modern trend of most of the legal systems, as reflected in Article 19(2) and (3) of the Convention. This approach purports to give a wide power of discretion to the courts which will to a certain extent be able to take the place of the parties in their contractual relationship.

B. The American Law

1. The Traditional Common Law Approach:

At common law, the slightest change in the terms of the offer made by the offeree in his intended acceptance produces a counter-offer. This conforms to the English approach and to the logic of the mirror image rule. This view is reflected by section 59 of the Restatement (Second) of Contracts.[33]

2. The American Approach under the Uniform Commercial Code:

The requirement that the acceptance be a mirror image of the offer does not conform to modern practices. The Uniform Commercial Code (UCC) contains a number of provisions which modify the common law of contracts. Nearly all of them will apply to Article 2 of the UCC which deals with all transactions in goods other than securities transactions. To the extent the UCC has not changed the law relating to the sale of goods and other transactions in goods, principles of common law and equity are applicable.

The UCC section 2-207 [34] abrogates the mirror image rule in favor of one reflecting the presumed expectations of the parties. Thus a purported acceptance will not jeopardize the formation of a contract because it contains different or additional terms. The next problem is the determination of the content of the contract. The rule is that the different or additional terms will not become part of the contract when the offeree knew that the offeror objected to the discrepancy and when these terms materially altered the contract. Subsection 3 of the article deals with the formation of a contract by conduct, when a purported acceptance cannot be considered as such.

The typical case of Roto-Lith, Ltd v. F.P. Barlett & Co. [35] is a good example of the battle of the forms under the American approach. In this case, A made an offer to buy a barrel of emulsion from the defendant B. The offer did not refer to warranties but stated the particular purpose for which the emulsion was to be used. B sent an acknowledgment and an invoice providing: "goods sold without warranties express or implied and subject to the terms on reverse side." One of these terms stated: "B's liability hereunder shall be limited to replacement of the goods which differ from B's sample order. If these terms are not acceptable, the buyer must notify B at once." A did not object to the terms and accepted the goods on delivery, paid for them and put them in use. The emulsion was defective. The action brought was one for breach of warranty. The court considered first that B's response was a proposal which materially altered the agreement, and second, that a response that does not in all respects correspond to the offer constitutes an acceptance of the offer and is a counter-offer only as to the difference. The court finally held that "[a] response which states a condition materially altering the obligation solely to the disadvantage of the offeror is an acceptance . . . expressly . . . conditional on assent to the additional terms." Here, since A accepted the goods with knowledge of the conditions specified in the acknowledgment, he became bound. Thus the court held that B's response was a counter-offer that A accepted when he paid. A similar result could have been reached by the common law approach, concluding that B's action and writing did not constitute an expression of acceptance.

Article 2-207 has been criticized on five grounds [36] that emphasize the poor quality of draftsmanship: (a) There can be an acceptance of an offer even though this acceptance contains different or additional terms from those of the offer; (b) In subsection (1), the meaning of "definite" and "seasonable" is not clear; (c) The distinction between "additional" and "different" in subsections (1) and (2) is difficult to establish; (d) The text compels the offeree to condition his acceptance upon express assent to different or additional terms contained in his response when the offeror is not required to indicate his objections to such variant terms, except in the case of non-material additions; (e) Subsection (3) is very harsh to sellers, since it deprives them of the protection of disclaimer clauses in their forms because of the existence of conflicting writings, especially in cases where the goods have been shipped to and accepted by the buyer.

C. Practical Results under the Common Law System

In light of the common law approach, consideration can be given to the four initial examples of battle of the forms.

In Example 1, both English and American law will reach the conclusion that a contract was formed. Under the English approach, the variance between the offer and the acceptance is considered immaterial, and the terms and conditions of both parties are to be construed together. They can be reconciled to give a harmonious result. Under UCC 2-207(2), a contract was formed including B's terms. The different term did not materially alter the agreement, the offer did not expressly limit acceptance to the terms of the offer, and the offeror did not object to the discrepancy.

In Example 2, where the modification is a jurisdictional provision, in English law a contract would be formed under the terms of the seller. Lord Denning's first solution will apply and the contract will incorporate the jurisdictional clause. American law in a similar case [37] decided that a contract was formed, but without including the litigated clause which was deemed material.

Example 3, which is similar to the Butler case, would lead to a result in favor of the buyer. Under Lord Denning's solutions, the battle is won by the party who gets the blow in first. Here the difference is material since it would affect the price. Under UCC 2-207(2)(c), the seller's letter accompanying the slip can be considered as a notice of objection given within a reasonable time. Thus the contract does not include the new term. Under the Roto-Lith viewpoint, the seller's letter can be regarded as a proposal or last shot which would be incorporated in the contract, since the buyer's silence is tantamount to an acceptance of the last condition.

In Example 4, an English court would find that B made an offer to buy goods which included a warranty of merchantable quality (Section 14(2) of the Sale of Goods Act). B's reference to normal conditions of warranty would not be more than a reference to this section. By shipping the goods with a document stating that the remedy for breach of warranty was limited to replacing the goods, S was making a counter-offer. When B accepted the shipment there would have been a contract under the terms of the seller, who would not be responsible for more than the replacement of the glue. In American law, under the Roto-Lith approach, a court would decide in the same way as English courts -- in favor of the seller. But a more literal reading of UCC 2-207 would lead to an opposite result. Thus one could find that B had made an offer to purchase with implied warranties, as provided in UCC 2-314 (merchantability). S's response can be analyzed as a definite and seasonable expression of acceptance which is not expressly conditional on assent to the different term. Thus a contract can be found when the goods are shipped (UCC 2-207 (1)). If the seller's term is considered an additional term, it should be construed as a proposal to modify the contract (UCC 2-207(2)) since it is a material alteration (see comment 4 to UCC 2-207). B will not be considered to have assented to it by keeping silent, and the result will be a contract including B's original term providing for S's full liability. If S's term is considered a "different" term then UCC 2-207(3) is involved, but the question remains unclear as to the scope of liability. This last ambiguity may explain the unexpected result of the Roto-Lith decision.

The Civil Law Approach: The French Example

A. Law of Formation

In French law, there are no statutes dealing explicitly with offer and acceptance. The only requirement set forth by Article 1108 of the Civil Code [38] is that there must be an agreement between the parties. This is the only broad rule for the validity of the formation of a contract. With respect to the law of sales, Article 1583 of the Civil Code[39] requires for the conclusion of the contract that an agreement as to the subject-matter and the price has been reached by the parties.

The question whether there is an agreement and where and how it was reached is a question of fact which is left to the decision of the regular courts (juge du fond) and escapes the control of the Cour de Cassation.[40]

Because of this paucity and imprecision of the Civil Code on offer and acceptance, the point is ruled by case law and considered by scholarly writings (doctrine). But even under these two rubrics, the question of the battle of the forms has not been considered. The French doctrine has not coined any expression to denominate the particular situation of a difference between the offer and the acceptance in contracts negotiated on standard forms. Therefore, one must consider the main trends expressed by court decisions and doctrinal writings and attempt to derive a general rule as to the law applicable in cases of battle of the forms.

1. The Traditional Approach:

Traditionally, it is considered that the acceptance must be pure, simple and totally conform to the offer. Following this approach, similar to the mirror image rule, an acceptance with reservations or a counter-offer is considered as a rejection paired with a new offer. This view was early expressed by the first commentators of the Civil Code [41] and the subsequent trend of case law is firmly settled in that direction.[42] A good example may be found in a decision of July 1967:[43]

"At the end of a negotiation, a broker sent to the parties a draft contract for the sale of a commercial property. The seller signed the document. The buyer added a clause: "expressly subject to the obtaining of a loan of 120,000 Francs by the Crédit Hotelier". Some time after the due date for payment, the buyer sued the seller to enforce the sale. The Cour de Cassation cancelled the lower court decision in favor of the buyer on the ground that this decision recognized the formation of a contract '[w]ithout having ascertained that there was an agreement of the parties on all the conditions of the contract'."

Under this approach, only very minor differences will not change the character of the response and will not preclude the formation of the contract. In a 1961 case the Cour de Cassation held that an acceptance which differs from the offer merely because it includes some details about the property subject-matter of the sale is valid and does not affect the formation of the contract.[44] In the same manner, if the acceptance includes new terms which are implied by law, the contract is considered formed by application of Article 1135 of the Civil Code.[45] Thus a decision in 1885 [46] established the rule that the silence of the parties as to the modalities of performance of a contract is construed as an implied reference to the supplementary provisions of the Civil Code.

This trend is reflected in various treatises and articles.[47] It is also the view adopted by Bonassies in a study of comparative law on "Formation of Contracts".[48] The author suggests that any reservation inserted in the alleged acceptance destroys its character. Besides citing two cases,[49] he refers to the proposals of the Committee for the revision of the Civil Code, which among its numerous and never-implemented proposals suggested an article providing that where an offer is accepted with modifications or subject to reservations, the acceptance shall be considered only as a new offer.[50]

2. Modification by Modern Decisions:

A more detailed analysis of recent case law reveals some evolution of these basic principles. In effect, a second trend of opinion considers that the nature of the discrepancy between the offer and the acceptance must be taken into consideration. This leads to the establishment of a distinction between essential (or substantial)[51] and subsidiary elements of the contract. If the discrepancy bears on an essential element the contract will never be formed, whereas if it bears on a subsidiary element the formation will not necessarily be precluded. This distinction is based on two grounds: first, a literal reading of Article 1583 of the Civil Code;[52] second, the rules set forth in Article 1156 of the Civil Code about the interpretation of contracts, which emphasizes the intention of the parties.[53]

According to Article 1583 of the Civil Code the essential elements of a contract of sale are the subject-matter and the price. An agreement on these elements is sufficient to form the contract.[54] Various decisions have construed that provisions to allow the formation of a contract even though the parties are not in a total agreement.

"In a 1962 decision [55] on a case where the parties agreed to purchase a property in Hyère for 3,000,000 Francs, the Cour de Cassation held that it is not possible for a party to invoke a lack of agreement on the modalities of the sale to avoid its obligations. The decision of the lower court was cancelled because it held that generally the modalities of payment of the price must be considered as a substantial provision, '[w]ithout having ascertained that the parties' intention was to delay the formation of the contract until subsidiary elements had been agreed upon'."

A certain number of similar decisions can be cited.[56]

The solutions are less certain where differences between offer and acceptance only bear on ancillary provisions of the contract. In this type of situation a court, following Article 1156,[57] will have to determine what the intentions are of one or both of the parties. Their intentions may have been to consider a statutorily subsidiary point to be a substantial element of the agreement. In two cases where the parties disagreed on a jurisdictional clause, the commercial courts of Cherbourg and Cambrai held that a contract of sale had nevertheless been concluded since it was not in the parties' intentions to condition the conclusion of the contract to these clauses.[58] In their examination of the facts, courts strive to discern grounds for avoidance set forth in bad faith by the parties in order to escape their obligations. The case of Prince Bio [59] illustrates this approach. In that case, the Cour de Cassation upheld the sale of the race stallion "Prince Bio" to Prince Ali Khan despite some conditions that the seller stated he had expressed before the contract. The Court considered these conditions frivolous, constituting a bad text to avoid a contractual obligation. This approach is also present in the aforementioned case of the sale of the property in Hyère.[60] Thus the view became more widely accepted that, if in principle the formation of a contract requires a total assent, it can nevertheless be realized by a partial agreement where the points still in dispute are subsidiary.[61]

3. The Battle of the Forms in French Law:

As mentioned above, practically no typical cases of battle of the forms have been decided by French courts. In his study of this question,[62] Bonassies gives two examples decided by the Cour d'Appel de Paris,[63] but a more detailed study of these cases shows that they are not very relevant to his thesis and do not lead to the conclusion that offer and acceptance must "in any case" conform totally. In both cases, the difference considered "very slight" related to an element of the contract which is statutorily essential according to Article 1593 of the Civil Code.[64]

In the absence of relevant precedent, one can turn to the scholarly analyses and treatises of civil law. A review of the main authors indicates that none of them addresses the specific question of the battle of the forms and most of them (while declaring that in principle the formation of a contract requires a complete agreement of the parties on all the conditions) admit the distinction between substantial and secondary elements of the contract and emphasize the importance of the intention of the parties.[65]

In sum, to form a contract of sale under French law the offer and the acceptance must coincide. If the acceptance includes new terms regarding the essential points of the agreement (the main obligations of the parties) there can be a new offer but a contract is never formed. When an agreement is reached on the main points but disagreement persists on subsidiary elements, the contract is formed unless the intention of the parties was to subject their consent to these points. When the disagreement on secondary points is expressed in the contract, the parties' intentions must be scrutinized to ascertain whether they considered these points substantial.

B. Consistency with the Modern Civil Law Approach

The French law of formation reflects the fact that problems arising out of the battle of the forms are not frequent. Nevertheless, the solution outlined by case law and doctrinal analysis is consistent with the trends of civil law systems which expressly deal with this question.

The German Civil Code (B.G.B.) in Articles 150, 154 and 155 provides:

B.G.B. Article 150(2): "An acceptance with amplifications, limitations, or other alterations is deemed to be a refusal coupled with a new offer."
B.G.B. Article 154: "So long as the parties have not agreed upon all points of a contract upon which agreement is essential, according to the declaration of even one party, the contract is, in case of doubt, not concluded. An understanding concerning particular points is not binding, even if they have been noted down.
"If authentification of the contemplated contract has been agreed upon, in case of doubt the contract is not concluded until the authentification has taken place."
B.G.B. Article 155: "If the parties to a contract that they regard as concluded have not agreed upon a point which they should have settled, their agreement is valid if it appears they would have contracted even without agreement on that point."

Swiss law follows the same approach. The Swiss Code of Obligations contains the following provisions:

Article 1: "The contract is perfect when the parties have mutually and in similar terms manifested their intention. This manifestation can be express or implied."
Article 2: "If the parties have agreed upon all the essential points, the contract is deemed concluded even if subsidiary points have been reserved."

The law of most of the Scandinavian countries reflects the same analysis. When a purported acceptance contains terms which differ from those of the offer, it is deemed to be a rejection of the offer and to constitute a counter-offer unless the offeree considers his response to conform to the offer and the offeror is aware of it. In that case, if the offeror does not want to be bound, he must give notice.[66]

In Japanese law, the solution is also similar. Under Article 528 of the Japanese Civil Code, if the offeree has accepted an offer conditionally or with modifications, he is deemed to have rejected the original offer and made a new offer himself. However, literal and precise compliance of an acceptance with the terms of the offer is usually not required. Generally an acceptance with minor modifications will not invoke the application of Article 528. Despite the possibility that this article may lead to a practical or theoretical confrontation, as seen in the battle of the forms, it has not been the subject of either scholarly concern or actual dispute.[67]

C. Practical Results

The result under French law of Example 1 would be that the difference between the offer and the acceptance would not alter the conclusion of the contract.

In Example 2, where the discrepancy relates to a jurisdictional clause, the intention of the parties would be scrutinized by the court, and following the two decisions of 1912,[68] the contract would be considered valid unless the parties' intention was to subject the formation to an agreement on this clause.

In Example 3, where divergence bears on a substantial element of the contract, the contract would be deemed never to have been formed.

Conversely, in Example 4, the contract would be considered to have been formed. The litigated terms (warranties) are not statutorily essential. As to the content of the contract, a court would consider the character of the parties, (if both are merchants) and decide in favor of the seller. The decision would be grounded on the fact that in the second shot, the seller expressly insisted on his own warranty clause and that the buyer was aware of it. A different solution would be reached if the buyer was a consumer (non-merchant). In such a case consumer protection would certainly prevail and a court would decide in favor of the buyer by reference to the articles of the Civil Code dealing with warranties in a contract of sale (Articles 1624, 1645 &1647).

The Convention and the Battle of the Forms

Where exchanged forms do not match, the application of the Convention will lead to fewer enforceable contracts because it requires the terms of the acceptance to conform to those of the offer except in narrowly defined cases when alterations are not material.

Although Article 19 can be considered as a compromise incorporating most of the goals of a uniform law, the text remains to some extent insufficient.

A. Objectives of a Uniform Law

The two main objectives of a uniform law are, first, a text which can be easily applied by parties and enforced by judges with different legal and cultural backgrounds, and, second, a system which satisfies the requirement of certainty. Article 19 is directed toward the fulfillment of these two goals.

1. Ease of Application:

The basic rule set forth in Article 19(1) is consistent with traditional theories of both common and civil law on the formation of contracts. All the traditional doctrines on formation incorporate a mirror image rule and require a perfect identity between the offer and the acceptance. Absent this identity, the purported acceptance is a rejection paired with a counter-offer. This basic theory is valid under English law, French law, American common law, and the other civil systems considered. Even where, as in the United States under UCC 2-207, the common law mirror image rule seems to have been rejected, it appears that the courts do not totally abandon the system of the counter-offer, as illustrated by the Roto-Lith case. Thus the rule of Article 19(1) conforms to what is described as the classical common core of legal systems in terms of offer and acceptance.

The exceptions stated in Article 19(2) conform to the modern trend found in both common and civil law systems. The notion is widely recognized that a slight difference arising out of the inclusion of additional or different terms in the acceptance will not jeopardize the formation of a contract when these terms do not materially alter the offer. It exists in English law under Lord Denning's alternative to the traditional approach. Lord Denning's viewpoint in the Butler case was clearly premised upon the notion of material difference.[69] This notion is also central in the American approach. UCC 2-207(2)(b) specifies that between merchants, additional terms to the offer become part of the contract unless they materially alter it. It should be noted that the solution of Article 19 is simpler and easier to apply than the UCC's. Thus Article 19 does not distinguish as does UCC 2-207(2) and (3) between additional and different terms. French law also includes this distinction between subsidiary and essential (or material) terms in the contract of sale. If one considers Example 1, where the difference between offer and acceptance is very slight, the result reached under Article 19 would most certainly be that the modification was not material. This solution would be similar to most of the common and civil law approaches.

2. Requirement of Certainty:

Article 19 was also intended to confirm the parties' expectations through the imposition of simple and rigid rules. The third paragraph of Article 19 is typical of this approach. This provision is the result of a compromise between the different participants to the Vienna Conference. Opinions differed widely over the second paragraph of the Article.[70] Some delegations considered that the provision was required by contemporary trade practices; others emphasized the vagueness of the words "materially alter". The resulting language was reached by the adoption of a third paragraph, which provided a list of terms deemed to be material. Moreover, this paragraph was the only completely novel addition in this Article to the version adopted by Article 7 of the Hague Convention of 1964 (Uniform Law on the Formation of Contracts for the International Sale of Goods), which dealt with the same subject matter.

"This list of the modifications, considered to be material, covers most of the aspects of the contract [71] and thus reduces the vagueness and the sphere of application of the rule of Article 19(2)."[72] The solution reached is rigid; it seems to provide certainty and adequate protection of the parties' reliance in most cases.

In Example 2 (jurisdictional clause) none of the legal systems provided the same answer: under English law the contract was formed on the terms of the seller, including the jurisdictional clause. The UCC leads to a contract excluding the provision. Under French law the contract was formed. Under Article 19 of the Convention the jurisdictional clause would materially alter the offer because it relates to the settlement of disputes.

In Example 2, where none of the parties have performed, there is no contract because the buyer's origina1 offer has been rejected, the seller's acceptance is a counter-offer, and the buyer's silence will not operate as an acceptance of the counter-offer.

In Example 3 (price variation clause) the common law systems concluded that a contract had been formed, but differed as to its content. The English courts considered that the clause was included in the contract. The American law was hesitant: a literal application of UCC 2-207 leads to the conclusion that the clause was not included, whereas the solution of the Roto-Lith case would lead to its inclusion. Under the civil systems, since no agreement was reached as to the price, a contract was not formed. Under the Convention, since the different or additional term bears on a material point (the price), the buyer's order form would be considered to be a counter-offer which was rejected by the seller's letter, and no contract would have been formed.

Article 19 is an attempt to avoid any conflict in approach arising under different legal systems. The main components of uniformity are mingled and the system seems to provide certainty in a difficult field.

B. Insufficiency of Article 19

1. Vagueness of Certain Concepts:

Certain concepts remain too vague, leading to a lack of uniformity in the judicial solutions.[73] There are three aspects to this:

First, in Article 19(1), the scope of the terms "additions, limitations or other modifications" is not clear. The problem is to know whether any change, however trivial, will be considered as an Article 19(1) modification. A court could define "modifications" so that it does not include trivial changes and so refuse to ascertain whether these trivial changes are material under Article 19(2) and (3). American courts have used that type of technique to avoid the harsh results produced by the mirror image rule.[74] A French court could easily adopt the same reasoning to reach an equitable solution by scrutinizing the intentions of the parties. Moreover, the result might be that a court will hold that an offeror's decision not to exercise a power to object under Article 19(2) is evidence that such discrepancy was trivial.

Secondly, Article 19(2) gives the offeror the power to object, and by so doing turn an acceptance into a rejection. This raises the question of the good faith of the offeror who objects. The rigid rule of Article 19(2) seems to leave no opportunity to scrutinize the offeror's reasons for objecting.[75] However, surely a court will be inclined to make such a scrutiny in the light of the interpretation rule contained in Article 7(1) of the Convention, which enjoins the courts to promote "[t]he observance of good faith in international trade".

Thirdly, two difficulties might arise out of the wording of Article 19(3) with regard to the concept of materiality. At first, it gives a non-exhaustive list of material terms, which are provided by the use of the words "among other things". The question is therefore raised as to what other terms a court will consider material. The second potential difficulty arises out of the fact that the sole indication of materiality is that the different or additional term "relates" to those elements listed in Article 19(3).[76] According to judicial interpretations, the "relation" may be very narrow or very wide and the solutions given by courts may differ with regard to the concept of material alteration.

2. Unsolved Problems:

The second inadequacy of the Convention arises from its lacunae, in that there are problems for which no solution is provided. This is especially true in situations illustrated by Example 4, where the parties have performed a transaction and no contract has been concluded under the terms of the Convention.

In Example 4, where most of the legal systems consider that a contract has been formed for the sale of a barrel of glue, the Convention provides differently: the litigated provision relating to the extent of one party's liability is deemed material under Article 19(3). Thus, the seller's reply is a rejection paired with a counter-offer. At this level of the contractual dialogue, the transaction is performed. If nevertheless it is assumed that a contract was formed (to take into account the reality of the situation), the question of its content under the Convention is far from clear. With regard to the question of whether the offer of either party was ever accepted by the other, two theories are suggested: (a) since the seller received no acceptance to his counter-offer, he was deemed to have finally accepted the initial offer by shipping the barrel of glue and was hence liable for full damages; (b) the buyer, by receiving and accepting the glue, was deemed to have accepted the counter-offer with the limitation provision. In this situation, the seller is only responsible for the replacement of the defective glue. Both theories are grounded on the definition of acceptance contained in Article 18(1).[77]

This example illustrates an inadequacy of the Convention which, apart from the specific situations contemplated in Article 18(3), seems to ignore situations of "contracts by conduct". This may be particularly puzzling in such cases where a contract has nevertheless been concluded.

To escape such a labyrinth, a court may have no alternative other than to refer to a domestic solution. One way, suggested by the UCC 2-207(3) and by the Ontario Law Reform Commission,[78] would be to consider that a contract was formed where the conduct of the parties assumes the existence of a contract. The content of such a contract would include the terms on which the parties have agreed, together with supplementary provisions implied by law. But here again some divergences of interpretation may occur.

Conclusion

These last considerations might lead to a pessimistic view of the effect of the Convention on the specific problem of the battle of the forms. Nevertheless, consideration must be given to the very limited number of disputes arising from the battle of the forms. The positive result of Article 19, and particularly its significant step toward certainty, must be emphasized in weighing the achievements of the work of the Vienna Conference.

It is important to give sufficient emphasis to the frequent criticism of the conduct of the parties arising from the lack of attention paid to the standard terms printed on the reverse of the forms exchanged in the formation of the contract. It has been suggested that the solution lies with the users of such forms. It is incumbent upon them to adopt strict rules of conduct in this connection. One rule of safety may be to insert provisions in the forms (emphasized by type-size and position), such as: "A reply that deviates from or supplements the current form will be ineffective as an acceptance." The general counsel of a multinational corporation has explained his rules thus: "[A]ny equipment order, whether for sale or lease, will not be accepted by us unless the customer has signed . . . our . . . standard agreement or some modification thereof which has been approved by our contract practices staff and our legal department. We accept the order by signing the same document and in this way we have a self-contained contract document signed by both parties to the contract. We will not accept a customer's purchase order nor do we use sales orders which we sign first and then send to the customer for acceptance. So we are not concerned with the battle of the forms."[79]

Without suggesting that this formulation should have universal application, it is at least interesting that some major corporations are finding a solution to these problems which is essentially "in house", avoiding the uncertainties inherent in the Convention.

It is nevertheless axiomatic that parties cannot be relied upon to provide their own solutions in all instances. There is therefore still a need to implement a uniform and harmonious system of rules of interpretation. In those areas where the Convention is not explicit, it should be the responsibility of the courts to develop a consistent policy in implementing a coherent set of guidelines.


FOOTNOTES

* François Vergne is a Member of the Paris Bar.

1. Art. 19 of the Convention provides:

"(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.

"(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

"(3) Additional or different terms relating, among other things to the price, payment, quality and quantity of the goods, place of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially."

2. Black's Law Dictionary 139 (5th ed. 1979).

3. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, para. 165 at 166 (1982).

4. See Eörsi, "A Propos the 1980 Vienna Convention on Contracts for the International Sale of Goods," 31 Am. J. Comp. L. 333 at 341 (1981).

5. Art. 13 of the Draft Convention provided:

"(1) A reply to an offer containing additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.

"(2) However, a reply to an offer which purports to be an acceptance but which contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance unless the offeror objects to the discrepancy without delay. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance."

6. See A/CN9/142 at 224.

7. See A/CN9/146. A/CN9/146 Add. 1. A/CN9/146 Add. 3.

8. A/CN9/SR 199. A/CN9/SR 202.

9. The 3rd paragraph provided:

"(3) Additional or different terms relating, inter alia, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially, unless the offeree by virtue of the offer or the particular circumstances of the case has reason to believe they are acceptable to the offeror."

After the adoption of this paragraph the whole article was renumbered as Art. 17 of the definitive draft."

10. A/Conf.97/C1/L.60, L.61, L.87, L.91, L.92, L.97, L.98.

11. This amendment gave its current physiogamy to para. 3.

12. Eörsi, supra n. 4 at 342.

13. The member countries of the CMEA are: Bulgaria, Cuba, Czechoslovakia, the German Democratic Republic, Hungary, Mongolia, Poland, Romania and the U.S.S.R. (Albania, even though she remains a member, has been inactive since 1962.)

14. See Katona, "The International Sale of Goods Among Member States of the CMEA," 9 Colum J. Transnat'l. L. 226 (1970).

15. The General Conditions, Chapter 1 1(2) provide: "If the offeror receives a notification of acceptance that is other than unconditional acceptance. . . . The notification shall be considered to be a counter-offer."

16. See Shishkevish [Student Note], "The Convention on Contracts for the International Sale of Goods and the General Conditions for the Sale of Goods," 12 Ga. J. Int'l L. Comp. L. 451 (1982).

17. See A/Conf.97/8/Add.6.

18. See Honnold, supra n. 3 at 190.

19. Tinn v. Hoffman & Co. (1873), 29 L.T. 271.

20. (1840), 3 Beav. 334.

21. [1894], 2 Ch. 332.

22. (1877), 2 App. Cas. 666.

23. Harris Case (1872), L.R. 7 Ch. App. 587.

24. [1953] 1 Q.B. 543.

25. Stevenson, Jacques & Co. v. McLean, (1880), 5 Q.B.D. 346.

26. [1968] 1 All E.R. 811.

27. See also A. Davies & Co. v. Williams Old, (1969) 67 L.G.R. 395.

28. See Rawlings, "The Battle of the Forms," 42 Mod. L. Rev. 715 (1979).

29. [1979] 1 All E.R. 965.

30. Supra n. 29 at 968.

31. Supra n. 29 at 969.

32. See, for example: Shanker, "Battle of the Forms: A Comparison and Criticism of Canadian, American and Historical Common Law Perspectives," 4 Can. Bus. L.J. 263 (1980); Rawlings, supra n. 28 at 719.

33. Restatement (Second) of Contracts, 59 provides: "A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer."

34. Article 2-207 of the UCC provides:

"(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

"(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants, such terms become part of the contract unless (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

"(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provision of this Act."

35. 297 F.2d 497 (1st Cir. 1962).

36. See Ontario Law Reform Commission, Report on Sale of Goods 83-84 (1979).

37. In re Marlene Industries Corp. and Carnac Textiles Inc., 45 N.Y. 2d 327, 380 N.E. 2d 339 (1978). The dispute arose from an arbitration clause.

38. Art. 1108 of the Civil Code provides: "Four conditions are essential for the validity of an agreement:

  • Consent of the party who binds himself,

  • His capacity to contract,

  • A definite object forming the subject-matter of the agreement,

  • A lawful cause for the obligation."

  • 39. Art. 1583 of the Civil Code provides: "It [the sale] is perfect as between the parties and ownership passes as a matter of right to the buyer from the seller as soon as agreement is reached as to the subject-matter and the price, even though the subject matter has not yet been delivered or the price paid."

    40. The Cour de Cassation is at the summit of the system of regular courts. Review by the Cour de Cassation is limited to questions of law strictly defined. Thus the Cour de Cassation can only determine whether the court below (Cour d'Appel) has so far misinterpreted the facts as to denature them. See Nicholas, French Law of Contract 59 (1982).

    41. See for instance, Thoullier, Droit Civil Français, Vol. 6, no. 27 (5th ed., 1830).

    42. See Cass. Civ., 3 février 1919, D.1923, I, 126, in which the Cour de Cassation held: "[W]hereas if the acceptance of the offer occurs with modifications or restrictions the contract is not settled between the parties." See also Cass. Soc. 15 novembre 1940, Sem. Jur. 1941,II,1602.

    43. Cass. Civ. 3ème, 17 juillet 1967, Bull. Civ. III, 29.

    44. Cass. Civ. lère, 27 mai 1961, Bull. Civ. I, 271.

    45. Art. 1135 of the Civil Code provides: "Agreements are binding not only as what is expressed, but also as to all the consequences which equity, usage or statutes impose upon the obligation according to its nature."

    46. Req. 1 décembre 1885, S. Jur. 1887, I,167.

    47. See Starck, Droit Civil: Obligations 271 (1972). See also Chevallier, "Observations," 1968 Rev. Trim. Dr. Civ. 707.

    48. Schlesinger, et al., Formation of Contracts, a Study of the Common Core of Legal Systems (1968), in French Report, Vol. II at 975.

    49. Cour d'Appel de Paris, 30 juin 1920 S. Jur. 1921-2-4. Cour d'Appel de Paris, 26 février 1956, sous Cass. Civ. lère, 7 janvier 1959, Bull. Civ. 1,13.

    50. Travaux de la Commission de Réforme du Code Civil: 1948-1949, at 705.

    51. A distinction is made between "essential" elements of a contract, those which are so qualified under Art. 1583 of the Civil Code (see supra n. 39), and "substantial" elements, those which have a special importance in the parties' determination to enter into the contract.

    52. See supra n. 39.

    53. Art. 1156 of the Civil Code provides: "What must be sought for in agreements is the common intention of the contracting parties rather than the literal meaning of the terms."

    54. Ghestin, Traité de Droit Civil: Les Obligations, 124 (1980).

    55. Cass. Civ. lère, 26 novembre 1962, D. 1963, 61.

    56. For instance: Cass. Civ. 16 janvier 1975, Bull. Civ. III, 9; Cass. Civ. 29 juin 1975, Bull. Civ. IV, 191; Cass. Civ. 4 janvier 1973, D. 1973, 663.

    57. See supra n. 53.

    58. Tribunal de Commerce de Cambrai, 16 avril 1912; S.1914, 2, 39. Tribunal de Commerce de Cherbourg, 6 septembre 1912.

    59. Cass. Civ. lère, 15 janvier 1963, Gaz. Pal. 9-12 mars 1963. Cited in Cornu, "Observations," 1963 Rev. Trim. Dr. Civ. 364.

    60. See text at 249 and supra n. 55.

    61. See Schmidt-Szalewski, note sous Cass. Civ. 3eme, 2 mai 1978, D. Jur. 1979, p. 117.

    62. See supra n. 48.

    63. See supra n. 49.

    64. In the first case, the Cour d'Appel de Paris held an alleged acceptance invalid because while seeming to conform to the terms of the offer (as to the price & quantity), it converted the offer in specie into an offer of sale in genere. Obviously the difference related to the subject-matter of the sale and thus to an essential element of the contract. In the second case, the subject-matter of the offer was an apartment considered as a simple property whereas the acceptance considered the same apartment as a divided property right. Here again the parties disagreed as to the subject-matter and the contract was statutorily not concluded.

    65. See Colin & Capitant, Droit Civil, Vol. II at 634 (1959). Mazeaud & Mazeaud (Juglart, ed.), Leçons de Droit Civil, Tome II, Vol. 1 (Obligations) 138 (1978). Ghestin, supra n. 54 at 224-227. Weil & Terré, Obligations 146 (1980). Carbonnier, Droit Civil, Vol. IV (Obligations), 15-18 (1982). Malaurie, "Vente, éléments constitutifs," Encyc. Dalloz: Rép. Droit Civil, Ch. 1 at 3 (1976).

    66. Honnold, supra n. 3 at para. 167, p. 191.

    67. See Kitagawa, Doing Business in Japan, Vol. III, section 1.03[5](ii) (1982).

    68. See supra n. 58.

    69. See text at 244 and supra n. 31.

    70. See Eörsi, "Problems of Unifying Law on the Formation of Contracts for the International Sale of Goods," 27 Am. J. Comp. L. 311, 322 (1979).

    71. Honnold, supra n. 3 at para. 169, p.193.

    72. Eörsi, supra n. 70.

    73. See Kelso, "The United Nations Convention on Contracts for the International Sale of Goods: Contract Formation and the Battle of the Forms," 21 Colum. J. Transnat'l L. 529 (1983).

    74. Id. at 545, n. 86.

    75. Id. at 546-47.

    76. Id. at 549.

    77. Honnold, supra n. 3 at para. 170, pp. 194-95.

    78. See Ontario Law Reform Commission, Sales, Vol. I at 81-86, Vol. III at 18 (1979). Cited by Honnold, supra n. 3 at para. 170, p.195, n. 8.

    79. Murray, "A Corporate Counsel's Perspective of the Battle of the Forms. Panel Discussion on 'Battle of the Forms'," item III, 4 Can. Bus. L. J. 290 (1980).


    Pace Law School Institute of International Commercial Law - Last updated August 13, 1999


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