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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

10th meeting

Tuesday, 18 March 1980, at 10 a.m.

Chairman: Mr. LOEWE

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF ARTICLES 1-82 OF THE DRAFT CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND OF DRAFT ARTICLE "DECLARATIONS RELATING TO CONTRACTS IN WRITING" IN THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES FOR THE DRAFT CONVENTION (agenda item 3) (A/CONF.97/5) (continued)

18
Article 16 [became CISG article 18 ] (continued)
(A/CONF.97/C.1/L.90)

1. The CHAIRMAN invited the Committee to continue its consideration of the amendment submitted by Egypt (A/CONF.97/C.1/L.90).

2. Mr. DABIN (Belgium) proposed that at the end of the second sentence of article 16(2) [became CISG article 18(2) ], there should be added the words "and usage", which appeared in ULF article 8, from which the sentence in question had been taken. He wished to know whether the Egyptian delegation could accept that change.

3. Mr. SHAFIK (Egypt) said that should the Egyptian amendment be rejected he could accept the change proposed by the Belgian representative.

4. Mr. DATE-BAH (Ghana) said that he was in favour of the amendment, but if it were not adopted he would recommend that the word "and the means of communication available to the offeree" should be added at the end of the second sentence of paragraph 2.

5. Mr. SAMSON (Canada) said that his delegation was against the Egyptian amendment, in the interest of compromise. Whilst civil courts in Quebec took into account the rapidity of the means of communication used, that was not so in regions where the common law system was applied. It was therefore preferable to give some criteria as a basis on which to appreciate whether a period of time was reasonable.

6. Mr. SAMI (Iraq) said that although he appreciated the reasons for the amendment, he feared that it would permit the offeree to respond with less rapidity. In a case where an offer was made by telex the offeree might, in the absence of provisions concerning means of communication, choose to reply by a less rapid means -- for example, by letter; that was likely to give rise to litigation, which would have to be settled at the discretion of the judge. A compromise solution would be to refer to "available" means of communication without further precision.

7. Mr. EYZAGUIRRE (Chile) said that he regretted that he could not support the Egyptian proposal. He considered that in the event of litigation the court or arbitrator ought to take the means of communication used into account.

8. Mr. MASKOW (German Democratic Republic) pointed out that the period of time in question could be divided into two: the time required to consider the offer and the time taken to transmit the reply. If the Egyptian amendment were adopted, there would no longer be any indication relating to the latter period. Moreover, if developing countries did not have the same means of communication (telex or data processing facilities) as their trade partners, those means could not be used in relation to them. The existing wording took into account the case where one country had the same means of communication available as the other but could not use them with the same rapidity. For all those reasons his delegation was in favour of keeping the existing text.

9. Mr. VISCHER (Switzerland) asked whether, in the event of the Egyptian proposal not being adopted, the text was to be sent to the Drafting Committee in the French or in the English version, the latter being the clearer.

10. The CHAIRMAN said that if members of the Committee considered that there were differences between the different language versions, which seemed to be the case, the text would in any case be sent to the Drafting Committee.

11. Mr. GOLDSTAJN (Yugoslavia) supported the text in its existing form, since it corresponded to existing trade practices and would be all the more useful as many new countries and bodies were making their appearance on the international trade scene. Moreover, it did not raise any practical problems, because it only concerned means of communication.

12. The CHAIRMAN put the Egyptian amendment (A/CONF.97/C.1/L.90) to the vote.

13. The Egyptian amendment was rejected.

14. The CHAIRMAN invited the Committee to take a decision on the amendment proposed orally by the Belgian representative.

15. Mr. DABIN (Belgium), stating that he had abstained in the vote on the Egyptian amendment, reminded the Committee that his proposal was to add at the end of the second sentence of article 16(2) [became CISG article 18(2) ], the words "and usage" contained in ULF, article 8.

16. Mr. DATE-BAH (Ghana) reminded the Committee that he had proposed that the words "and the means of communication available to the offeree" should be added at the end of the same sentence.

17. Mr. SHAFIK (Egypt) said that he had no objection to that proposal.

18. The CHAIRMAN put the Belgian amendment to the vote.

19. The Belgian amendment was rejected..

20. The CHAIRMAN put the Ghanaian amendment to the vote.

21. The Ghanaian amendment was rejected.

22. Mr. KRISPIS (Greece) pointed out, also in connection with article 16 [became CISG article 18 ], that the last sentence of paragraph 2 stated a rule and an exception, and his delegation would prefer to lay the emphasis on the rule. Bearing in mind that at the current time acceptance of an offer was often made by telephone, it would be preferable to say that an oral offer ought to be accepted immediately if the circumstances so indicated.

19
Article 17 [became CISG article 19 ]
(A/CONF.97/C.1/L.60, L.61, L.87, L.91, L.92, L.97, L.98)

23. The CHAIRMAN, having listed the amendments to article 17 [became CISG article 19 ], noted that there were two proposals, one from the United Kingdom (A/CONF.97/C.1/L.61) and one from Bulgaria (A/CONF.97/C.1/L.91), to delete paragraphs 2 and 3 and that Egypt was also proposing the deletion of paragraph 3 (A/CONF.97/C.1/L.92). He suggested that the first two proposals should be considered first.

24. Mr. FELTHAM (United Kingdom) said that, as explained in its written comments (A/CONF.97/8/Add. 3), his country wished to delete paragraphs 2 and 3 because they would cause uncertainty as to whether a contract had actually been concluded. It was preferable that the rule to be applied in all cases should be that contained in paragraph 1.

25. Mr. STALEV (Bulgaria), introducing his delegation's amendment (A/CONF.97/C.1/L.91), explained that article 16(1) [became CISG article 18(1) ] and article 17(1) [became CISG article 19(1) ] established a fundamental rule and a rational principle, i.e., that there could be no contract without agreement by the parties on all points. However, that fundamental rule was almost nullified by the exceptions given in paragraphs 2 and 3: paragraph 2 gave an exception to paragraph 1, the first sentence of paragraph 3 an exception to paragraph 2, and the second sentence of paragraph 3 an exception to the first sentence, the result being that a contract could be concluded implicity when there had been no agreement on the essential elements of sale as stated in the first sentence of paragraph 3. That solution sacrificed the fundamental considerations of international trade relations -- certainty and security -- to less important considerations, such as the flexibility of rules and equity in individual cases. It also jeopardized the interests of less experienced enterprises, which might not refuse an offer in good time.

26. His delegation therefore proposed that paragraphs 2 and 3 should be deleted and, if that proposal were not accepted, recommended that at least the last part of paragraph 3 from "unless the offeree . . ." should be deleted.

27. Mrs. KAMARUL (Australia) said that she supported the United Kingdom and Bulgarian proposals since the provisions of paragraphs 2 and 3 were too radically different from Australian law. They diverged further from it than did any other article in Part II of the Convention.

28. Mr. SEVÓN (Finland) said that he could not agree to either of the proposals, since trade nowadays largely took place in the manner described in paragraphs 2 and 3.

29. Mr. MASKOW (German Democratic Republic) regretted that he could not support the United Kingdom and Bulgarian proposals since experience had shown that in trade practice minor changes were often made to the offer and that contracts were nevertheless considered as having been concluded and were performed. The only effect that the deletion of the paragraphs would have would be to make some contracts void which would nonetheless be executed, and that would cause serious difficulties. It would therefore be preferable to keep the existing text, even if it was not perfect. In any event, the problems which those provisions might give rise to were less serious than those which might arise if the provisions were deleted.

30. Mr. STALEV (Bulgaria) said that there was a presumption of contract as soon as there had been performance by the party which had received the acceptance together with the alterations.

31. Mr. LANDFERMANN (Federal Republic of Germany) said that he had no definite position on the matter because his country's legislation provided for both possibilities, either of which could be applied according to whether paragraph 2 was kept or deleted. However, he would perhaps be inclined to give preference to the United Kingdom proposal because of the uncertainties which might be caused by the application of paragraph 2. It was indeed difficult to say what was to be understood by a material alteration and to know who could decide on the matter.

32. Mr. BOGGIANO (Argentina) said the most tricky problem was raised by the last part of paragraph 3, since it introduced a subjective element which was difficult to govern by rules and which, for that reason, caused uncertainty about the application of paragraph 2 and the first part of paragraph 3. His impression was that the two provisions were mutually exclusive, which brought into question the consensual basis of the contract. He was therefore in favour of the proposals to delete the two paragraphs.

33. Mr. FARNSWORTH (United States of America) was in favour of keeping the existing text of article 17 [became CISG article 19 ], and particularly of paragraph 2, but if paragraph 3 presented difficulties to some delegations he would not oppose its deletion. It was important to bear in mind that the deletion of paragraph 2 would have serious consequences in the event of a dispute. It would allow one or other of the parties to a given contract to take refuge behind to so-called "mirror-image rule" (principle of exact concordance between the terms of the offer and the acceptance), should that party no longer have an interest in performing the contract for reasons other than those hinging on material alterations -- for example, in the event of a rise or drop in the price of the goods for which the contract was made. The deletion of paragraph 2 would jeopardize the rule of good faith, of which it was in a sense a specific application.

34. Mr. KRISPIS (Greece) supported the proposals to delete paragraphs 2 and 3. Paragraph 2, which gave first a rule then an exception, presented difficulties in the sense that it made it necessary to distinguish between alterations which were material and those which were not, and raised the problem of knowing who was to make that distinction. Paragraph 3 provided for an exception to an exception, which further increased the difficulties. If the Committee decided to keep paragraphs 2 and 3, he would support the idea of deleting the last part of the sentence in paragraph 3 mentioned in the second part of the Bulgarian amendment (A/CONF.97/C.1/L.91).

35. Mr. WANG Tian ming (China) said that he very much wished article 17 [became CISG article 19 ] to be kept in its existing form. Paragraph 1 contained the basic principle, which was complemented and explained by paragraphs 2 and 3. The three paragraphs formed a whole and the balance would be destroyed if paragraphs 2 and 3 were deleted.

36. Mr. GHESTIN (France) said that, whilst he saw the point of the amendments, as an attempt to simplify a complex text, he regretted that he could not support them since the realities of international trade were not taken into account. In practice, general conditions of sales and purchase, which concerned particularly the questions of guarantee, liability and jurisdiction, were never in perfect harmony. It was, however, customarily admitted that a contract was concluded at the time when agreement was reached on price, quantity and quality, but not necessarily on all the elements of the contract. If paragraphs 2 and 3 were deleted, it would be impossible to conclude an international contract without requiring the parties to set aside their general conditions, which they were hardly likely to do since it would mean giving the international uniform law precedence over their own terms. Consequently, his delegation could not agree to delete those paragraphs, but it recognized that their wording must be improved and, that the last phrase of paragraph 3 should, perhaps, be deleted. In that connection, he drew attention to the draft amendment submitted by his delegation (A/CONF.97/C.1/L.60).

37. Mr. DABIN (Belgium) said he endorsed the essential points of the statement by the representative of Bulgaria and supported the idea of deleting paragraphs 2 and 3. The text of article 17 [became CISG article 19 ], which was based on the corresponding article of the United States Uniform Commercial Code, was very complex and the desire of the drafters of that article to avoid too strict an application of the Rule of the Mirror was understandable. That article had however given rise to severe criticism because it could create a vicious circle. Interplay between the attitudes of parties could theoretically lead to substantial changes without any definite result. The representative of France was no doubt right in insisting on the importance of general conditions but, contrary to what he thought, it was precisely because practical circumstances did not correspond to the successive hypotheses set forth in the text that the Belgian delegation would like to delete paragraphs 2 and 3, or at least delete paragraph 3 while retaining paragraph 2 which could be useful because the parties should agree not on all the terms but on those which were really essential.

38. Mr. KOPAC (Czechoslovakia) pointed out that the interpretation of the word "materially" might lead to misunderstandings between the parties and give rise to legal difficulties. It would be unwise to accept a principle that was contrary to article 16 [became CISG article 18 ], where it was stipulated that silence should not amount to acceptance. His delegation supported the Bulgarian proposal, but considered that, if that proposal was rejected, paragraph 3 should be retained because it was very important for the interpretation of paragraph 2, even though the reservation contained in the last phrase was a source of uncertainty.

39. Mr. OLIVENCIA RUIZ (Spain) said that he was in favour of the deletion of paragraphs 2 and 3 for the reasons already given by preceding speakers. The text should be clear and intelligible to trading partners and jurists alike. It was rightly based on the principle of concordance between offer and acceptance but, as the representative of Czechoslovakia had pointed out, paragraph 2 was in contradiction with the rule set forth in article 16 [became CISG article 18 ], namely that silence did not amount to acceptance. If that paragraph was retained, paragraph 3 should also be retained, provided that the wording was improved and the last phrase deleted.

40. Mr. ROGNLIEN (Norway) said that he was opposed to the idea of deleting paragraph 2. That paragraph contained an important principle which could be linked with the notion of good faith, as the representative of the United States had pointed out. That was not the case for paragraph 3, which was supposed to make the rules even stricter, but did not achieve its objective because it was qualified by an exception, which was in fact needed if paragraph 3 was to be retained since otherwise the paragraph would be too difficult to apply. In any case, paragraph 3 seemed to him to be nothing but a source of confusion and difficulties. He therefore requested that the paragraph be deleted.

41. Mr. MICHIDA (Japan) said he thought that the delegations which had advocated the deletion of paragraphs 2 and 3, because of the uncertainty to which the word "materially" might give rise, had in fact considered only one aspect of the question. The other aspect was that, at the present time, transactions were usually carried out by an exchange of documents such as telegrams and printed forms and that exchange gave rise to numerous additions. The Convention could not oblige the parties to reply to all those additions individually. Neither the retaining nor the deletion of paragraphs 2 and 3 would be completely satisfactory but, in the light of commercial realities, his delegation was inclined to favour their retention.

42. Mr. DATE-BAH (Ghana) said that, in view of the law in force in Ghana, the judges in his country would probably choose the solution proposed by the representative of the United Kingdom; but, like the representatives of the United States and Japan, he was convinced that the rules set forth in article 17 [became CISG article 19 ] were necessary. He therefore supported that article, provided that paragraph 3 was retained.

43. Mr. DE ANDRADE (Brazil) supported the Bulgarian proposal to delete paragraphs 2 and 3 of article 17 [became CISG article 19 ] for the reasons already given by the previous speakers, who had emphasized the uncertainty to which the excessive number of exceptions and the subjective elements introduced into those paragraphs would lead.

44. Mr. PLUNKETT (Ireland) said that it was preferable to restrict the article to the clear rule set forth in paragraph 1 and to delete paragraphs 2 and 3 which, by trying to resolve situations where the traditional rule set forth in paragraph 1 did not produce desirable results, in fact created confusion and uncertainty. If the proposals to delete paragraphs 2 and 3 were not adopted, he would support paragraph 2 of the Bulgarian amendment, namely the deletion of the last part of the last sentence of paragraph 3.

45. Mr. EYZAGUIRRE (Chile) said that he was opposed to the deletion of paragraphs 2 and 3. He considered it important to retain paragraph 2 for the reasons given by the representatives of Finland and the United States. Paragraph 3 completed paragraph 2. His delegation had no special difficulty with the last phrase of paragraph 3, but it might possibly agree to its deletion.

46. Mr. MELCHIOR (Denmark) said he thought that the United Kingdom proposal to delete paragraphs 2 and 3 would only increase uncertainties rather than remove them. He would prefer those paragraphs to be retained. He might, however, possibly agree to the deletion of paragraph 3.

47. Mr. MICCIO (Italy) said that he was in favour of deleting paragraphs 2 and 3 which were a source of confusion because they provided for too many exceptions to the rule set forth in paragraph 1.

48. The CHAIRMAN invited the Committee to vote on the United Kingdom amendment (A/CONF.97/C.1/L.61) to delete paragraphs 2 and 3 of article 17 [became CISG article 19 ] and the first paragraph of the Bulgarian amendment (A/CONF.97/C.1/L.91).

49. The amendments were rejected.

50. The CHAIRMAN invited the Committee to vote on the Egyptian proposal (A/CONF.97/C.1/L.92) to delete paragraph 3 of article 17 [became CISG article 19 ].

51. The proposal was rejected.

52. The CHAIRMAN invited the Committee to vote on the second paragraph of the Bulgarian amendment (A/CONF.97/C.1/L.91) proposing the deletion of the last portion of the second sentence of paragraph 3, starting with the words "unless the offeree . . ."

53. The amendment was adopted.

The meeting was suspended at 11.35 a.m. and resumed at 11.55 a.m.

54. The CHAIRMAN said that, in the absence of any objection, he would consider that paragraph 1 of article 17 [became CISG article 19 ], which had not been the subject of any amendment, was adopted.

55. It was so decided.

56. The CHAIRMAN drew the attention of the members of the Committee to the amendment submitted by the Netherlands concerning article 17(2) [became CISG article 19(2) ] (A/CONF.97/C.1/L.98).

57. Mr. MEIJER (Netherlands), introducing the amendment (A/CONF.97/C.1/L.98), said that it proposed the insertion between the first and second sentences of article 17(2) [became CISG article 19(2) ] of a new provision which explicitly entitled the offeree to clear his acceptance from the non-material alterations to which the offeror had made a timely objection, a situation which was not provided for in the existing draft. Under article 15 [became CISG article 17 ] and article 17(1) [became CISG article 19(1) ], a counter-offer seemed to be considered to be a rejection of the offer, even if it contained only minor modifications. That situation could give rise to abuse and affect good faith in international trade. Nonmaterial alterations or additions could certainly be considered important by the offeror, but the offeree should always be entitled to retract those changes or alterations promptly and revert to the terms of the original offer.

58. The CHAIRMAN said that the Netherlands amendment did not seem to have any support in the Committee.

59. Mr. MEIJER (Netherlands) withdrew his amendment.

60. The CHAIRMAN suggested that the United States proposal (A/CONF.97/C.1/L.97), which was merely a matter of drafting, should be sent direct to the Drafting Committee.

61. It was so decided.

62. The CHAIRMAN drew the attention of the members of the Committee to the French amendment to article 17(3) [became CISG article 19(3) ] (A/CONF.97/C.1/L.60).

63. Mr. GHESTIN (France) explained that his delegation had submitted that amendment because it considered that the list contained in article 17(3) [became CISG article 19(3) ], which tried to define the terms which might materially affect the terms of the offer, was too long. It contained references inter alia to the extent of one party's liability to the other and the settlement of disputes, which were all in fact secondary considerations which came under the general conditions of purchase. The only material elements seemed to be the price, the quantity and the quality, which constituted the particular terms of contracts and affected the very substances of the sale. The French amendment would also bring article 17(3) [became CISG article 19(3) ] into line with article 12 [became CISG article 14 ] on offers, which mentioned only the quantity and the price of the goods.

64. Mr. SHAFIK (Egypt) expressed astonishment that the representative of France maintained his amendment despite the deletion of the second part of the last phrase of paragraph 3.

65. Mr. GHESTIN (France) replied that the deletion of the phrase in question did not detract from the usefulness of his amendment.

66. Mr. SEVÓN (Finland) said that he was unable to approve the French amendment. Terms such as payment and the settlement of disputes were also material. Moreover, when the text was being prepared in UNCITRAL, the developing countries had shown that they attached special importance to the question of the extent of one party's liability to the other and he was thus unable to agree to the deletion of that term.

67. Mr. KRISPIS (Greece) said that he too was opposed to the French amendment. Its aim was, in fact, to delete any reference to payment, which was an important element. The deletion of the words "inter alia" would make the list of terms contained in article 17 [became CISG article 19 ] too rigid, whereas it could only be of an indicative nature.

68. Mr. ROGNLIEN (Norway) said that he was in favour of the French amendment, which would simplify paragraph 3 and facilitate its application. The list in that paragraph was not exhaustive and the fact that a term did not appear did not mean that it was not material; that question should be left to the appreciation of the courts. The aim of the French amendment was to concentrate attention on the really material terms and that was all the more important because the last part of the last sentence of paragraph 3 had been deleted.

69. Mr. FELTHAM (United Kingdom) said he agreed with the representative of Finland that all the terms mentioned in paragraph 3 could be important and material. To avoid any uncertainty, it seemed preferable to consider an acceptance with restrictions as a counter-offer. The wider the definition of the terms referred to in paragraph 3, the less such uncertainties would be encountered. He was thus not in favour of the French proposal.

70. Mr. DABIN (Belgium) said that he was in favour of the French proposal which would improve paragraph 3. Clauses other than those relating to price, quality and quantity were important, but it was for the parties, and not for a legal provision, to emphasize that importance. The expression "are considered", used in the article implied that it was only a supposition. It might be necessary to reconsider that expression and use one with a more objective meaning.

71. Mr. KOPAC (Czechoslovakia) said that he was unable to support that amendment. Paragraph 3 did not have to be drafted with regard for article 12 [became CISG article 14 ], which dealt only with the minimum content of the contract. In paragraph 3 it was a question of deciding what was and what was not material, and matters such as the place and time of delivery or the extent of liability were very important.

72. Mr. MASKOW (German Democratic Republic) said that, particularly after having heard the arguments put forward by the representative of Norway, he was in favour of the French amendment which seemed especially important after the deletion of the last phrase of paragraph 3. There was no doubt that the three conditions listed by the representative of France could be considered important. They related to the cases which gave rise to the most serious problems between the parties, whereas, if paragraph 3 was retained as it had been drafted, even terms which posed few problems could be regarded as determinant. Moreover, the French amendment did not exclude the possibility that other terms could be considered material. Lastly, it was more in keeping with international trade practices and would facilitate the formation of contracts. The words "inter alia" could however be included to facilitate its adoption.

73. Mr. REISHOFER (Austria) endorsed the Greek representative's objections to the French amendment. The deletion of the words "inter alia" could lead to an interpretation according to which the terms related to the price, quality and quantity of the goods were the only ones that were to be considered to alter the terms of the offer materially, and that was unacceptable to his delegation. However, it could support the amendment if the words "inter alia" were added, as proposed by the representative of the United States.

74. Mr. GHESTIN (France), replying to the objections to his delegation's amendment, emphasized that the expression "are considered to alter the terms of the offer materially" indicated that it was a matter of a mere supposition. The other essential terms, such as the place and time of delivery, conditions of payment, the extent of liability and the settlement of disputes were normally determined during the negotiations between the parties, in their correspondence or at the time the contract was drafted. In the French proposal, paragraph 3 was intended merely to determine a priori the terms supposed to be essential.

75. Mr. FARNSWORTH (United States of America) said that he could support the French amendment provided that it was understood that the terms quoted did not constitute an exhaustive list.

76. Mr. EYZAGUIRRE (Chile) said he endorsed the objections to the French amendment raised by the representatives of Finland, Greece and Austria. He could not support that amendment, therefore, unless the list of additional terms considered to alter the terms of the offer materially remained open.

77. Mr. SAMI (Iraq) pointed out that the essential problem was to decide if the additional terms listed in paragraph 3, as proposed by France, were mere examples or an exhaustive list. In the first case, the French proposal was acceptable, whereas in the second it made the text too rigid. He could support the French proposal if the words "inter alia" were added, which would clearly indicate that it was merely a question of examples and that there might be other terms which were important to the offeror.

78. Mr. DATE-BAH (Ghana) said that he shared the doubts expressed by preceding speakers concerning the advisability of the French amendment. Terms other than those referred to in that amendment should be identified. In that respect, the existing text seemed to him more satisfactory.

79. Mr. STALEV (Bulgaria) also thought that even if the terms listed in the French proposal were simply examples, others should be mentioned in order to make the sense of the paragraph clearer. The existing text of paragraph 3 was more satisfactory in that respect.

80. Mr. BECK-FRIIS (Sweden) said that although he preferred the existing text he would be able to accept the French amendment if the words "inter alia" were added. The date and place of delivery might in fact be as important as the price, quality and quantity of the goods.

81. Mr. ROGNLIEN (Norway) asked the French representative whether he would agree to insert the words "inter alia" in his proposal.

82. Mr. GHESTIN (France) remarked that the insertion of the words "inter alia" would mean that the elements mentioned in the French amendment would become mere examples. He accordingly preferred to maintain his amendment as it stood in document A/CONF.97/C.1/L.60, with the sentence ending after the word "materially" in accordance with the Committee's earlier decision. If the wording was not acceptable to the Committee, his delegation might agree to the insertion of the words "inter alia".

83. The CHAIRMAN put the French amendment (A/CONF.97/C.1/L.60) to the vote.

84. The amendment was rejected.

85. The CHAIRMAN put to the vote the French amendment as modified by the Norwegian oral subamendment to insert the words "inter alia" after the word "relating".

86. The amendment as so modified was rejected.

87. The CHAIRMAN invited the Committee to take up the Belgian proposal (A/CONF.97/C.1/L.87) to add a new paragraph to article 17 [became CISG article 19 ].

88. Mr. DABIN (Belgium) explained that the amendment was intended to settle a problem that frequently arose in practice and that ought to be considered in the Convention. The commercial staffs of buyers or sellers were not legal experts and used general conditions in a rather mechanical way. It sometimes happened that the offeror and the offeree agreed on specific points (such as the price, quality and quantity of goods or arrangements for payment) and so far as other matters were concerned simply referred to general conditions the terms of which were conflicting. In that case the conflicting clauses should be deemed not to form part of the contract. The Belgian delegation had placed the words "or implicitly" in square brackets in the phrase "expressly [or implicitly] referred" and left it to the Committee to decide whether they should be included in the text.

89. Mr. SHAFIK (Egypt) supported the Belgian proposal, without the words "or implicitly".

90. Mr. PLUNKETT (Ireland) said that he was strongly opposed to the Belgian amendment. It was contrary to the law of contracts, at least in the common law countries, and to the principle of the freedom of choice of the parties embodied in article 5 of the draft Convention [became CISG article 6 ].

91. Mr. KRISPIS (Greece) opposed the Belgian amendment on the same grounds as the preceding speaker. He pointed out that the expression "general conditions" might be interpreted in various ways if it was not defined in the Convention. In his view the Belgian proposal was unduly categorical since conflicting clauses, which were in fact unusual, could in practice be interpreted by the courts in such a way as to provide the two parties with a satisfactory solution. There appeared to be nothing to be gained by laying down too specific a rule in the matter.

92. Mr. FELTHAM (United Kingdom) observed that the Belgian amendment dealt with a typical instance of the "battle of forms" in which each party relied on its own terms. In such cases, it was difficult to find a solution capable of satisfying all the parties. Article 17(1) [became CISG article 19(1) ] appeared to provide a fairly satisfactory definition of the circumstances in which a reply purporting to be an acceptance of the offer should be considered as a rejection constituting a counter-offer. He was in general agreement with the objections to the Belgian proposal stated by the Irish representative and would prefer to keep the existing text of article 17 [became CISG article 19 ].

93. Mr. LANDFERMAN (Federal Republic of Germany) thought that the Belgian amendment was interesting but felt that it raised an issue that was too complicated for the Committee to settle in the absence of preparatory work by the UNCITRAL Working Group. The latter had not explored the issue raised in the new paragraph proposed by Belgium in sufficient detail. His country had attempted to provide a solution for the problem in its legislation but had had to abandon the attempt because of the difficulties encountered. The courts had adopted various solutions, some of which were along the lines of the Belgian proposal and excluded conflicting clauses from contracts. That solution could, however, create difficulties, as for example, in the case of general conditions the terms of which were reasonably similar but which were distant from the legal solution. The term "general conditions" was in itself controversial as the Greek representative had indicated. It had also to be considered at what point the terms of such general conditions were mutually exclusive; e.g., one party might refer to general conditions in relation to limitation of liability, the other with regard to the place of delivery, the remainder of the contract being governed by the law.

94. He would be interested to hear the comments of delegations whose countries, such as the United States and the German Democratic Republic, had resolved the problem of the "battle of forms" in their national legislation.

95. He was unable to support the Belgian proposal.

96. Mr. GHESTIN (France) said that the general conditions of sale were a set of regulations in themselves and should, in the opinion of those who drafted the Convention, be considered as a part of the national law of each country.

97. The general conditions of the various countries were rarely precisely the same. Agreement on general conditions was therefore often illusory, as was indicated by the familiar phrase "the battle of forms" and the conflict of general conditions. He nevertheless considered that the issue was an important one and must be covered in the Convention. The Belgian amendment had the great merit of doing so and at the same time of proposing a simple solution. Although difficulties might arise in defining general conditions and deciding at what point they became conflicting, the Belgian amendment seemed to be preferable to the existing text, which completely ignored the problem of conflict between general conditions.

98. Mr. GOLDSTAJN (Yugoslavia) had serious misgivings regarding the Belgian amendment. It frequently happened in the course of trade that reference was made to general conditions, to some terms of which one of the parties might attach substantial importance. If those terms were excluded, the contract would not be concluded.

99. Mr. BOGGIANO (Argentina) considered that the issue was an extremely important one and should be thoroughly explored, but wondered whether a working group should not be set up to do so. He would support the Belgian amendment if the meaning of the term "general conditions" were defined in order to remove the misgivings that had been expressed in that connection.

100. Mr. DABIN (Belgium) thanked delegations for their comments and agreed that the issue should have been explored during the earlier work of the UNCITRAL Working Group. Nevertheless, it was not impossible to define general conditions. The legislation of the Federal Republic of Germany, for example, contained some elements of a definition that might be used. He failed to see how his proposal could conflict with the law of contracts and the principle of the freedom of choice of the parties. The proposed text was designed to cover only these cases where the parties had made specific reference to clauses containing conflicting terms. He agreed that his amendment contained a few vague concepts but the draft convention contained many more, including some of greater importance, the interpretation of which was left to either the judge or the arbitrator.

101. The CHAIRMAN put the Belgian amendment (A/CONF.97/C.1/L.87) to the vote.

102. The amendment was rejected.

103. The CHAIRMAN announced that article 17 [became CISG article 19 ] had been adopted as amended by the second paragraph of the Bulgarian amendment (A/CONF.97/C.1/L.91), deleting the last portion of paragraph 3 beginning with the words "unless the offeree . . .".

The meeting rose at 12.55 p.m.


Pace Law School Institute of International Commercial Law - Last updated January 29, 1999
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