1. Mr. GHESTIN (France), introducing his delegation's amendment to article 13 [became CISG article 15 ], paragraph 2, said that it was merely a drafting amendment: it seemed clearer and simpler to convey the meaning in one sentence rather than two.
2. The CHAIRMAN said that in the absence of comment, he would take it that the Committee wished to adopt article 13 [became CISG article 15 ] and send it to the Drafting Committee together with the French proposal.
3. It was so agreed.
4. The CHAIRMAN said he took it that the effect of the Norwegian proposal (A/CONF.97/C.1/L.39) would be to renumber the articles consecutively within the separate parts, so that in the Convention as a whole there would be several articles with the same number. He asked whether the Committee wished to send the proposal to the Drafting Committee.
5. Mr. HERBER (Federal Republic of Germany) said that his delegation had doubts about the wisdom of renumbering the articles. It might facilitate matters for those States which intended to ratify only part of the Convention, but it would make reference to it more difficult for those States which ratified most of it.
6. Mr. ROGNLIEN (Norway) said that the intention of his proposal was precisely the opposite, namely, to assist the private parties in those States which ratified both parts II and III of the Convention to compare and compile the corresponding articles in the law of other parties whose States had ratified only Part III. The latter could make the corresponding compilation easily enough by reference to the Convention as a whole. The problem was that the corresponding articles would otherwise be differently numbered in different States which would be inconvenient for parties to the contract.
7. Mr. GHESTIN (France) said that continuous consecutive numbering of the articles was preferable.
8. Mr. ROGNLIEN (Norway) withdrew his proposal.
9. Miss O'FLYNN (United Kingdom), introducing her delegation's amendment to paragraph 1 of article 14 [became CISG article 16 ] (A/CONF.97/C.1/L.48), said that paragraph 2 of article 12 envisaged the possibility of public offers being subject to the Convention but that no provision had been made in the draft for the revocation of such offers. The purpose of the amendment was to provide for their revocation in the same way as for the offers.
10. Mr. SZÁSZ (Hungary) said it was his understanding that public offers were excluded from the articles subsequent to article 12 [became CISG article 14 ]. He preferred the original text of article 14 [became CISG article 16 ], paragraph 1.
11. Mr. HERBER (Federal Republic of Germany) and Mr. BENNETT (Australia) supported the United Kingdom amendment.
12. The CHAIRMAN said that the United Kingdom amendment did not seem to command wide support. In the absence of further comment, he would take it that the Committee wished to adopt the original text of paragraph 1 and send it to the Drafting Committee with the amendment proposed by the German Democratic Republic (A/CONF.97/C.1/L.84), which was a drafting amendment.
13. It was so agreed.
14. Mr. FELTHAM (United Kingdom), introducing his delegation's amendment to paragraph 2 of article 14 (A/CONF.97/C.1/L.48), said that it was not linked to the United Kingdom amendment to paragraph 1. It was intended to take account of the legal effect in most common law countries of stating a fixed time for acceptance of an offer. Such a step, unless there were other considerations which made for irrevocability, merely indicated a period during which the offer might remain open and after which it lapsed. Traders in common law countries would be exposed to a trap if, under the Convention, indicating a fixed period without any mention of irrevocability, brought about a situation where an offer was deemed to be irrevocable. They should be protected by a provision stating that such was not the case unless there was some other clear indication that the offer was intended to be irrevocable.
15. Mr. AOYAMA (Japan) said his delegation supported the original text of paragraph 2 on the understanding that when the offeror fixed a time for acceptance, the offer was irrevocable during that time. It could not accept an amendment.
16. Mr. ROGNLIEN (Norway) suggested that there were two possible solutions. It might be left to the courts to decide what the offeror's intention with regard to the irrevocability of the offer had been when he fixed a time for acceptance. Alternatively, there might be a presumption one way or the other. In his delegation's view, the presumption should be that the offer was irrevocable, but alternatively it could be the other way, as the United Kingdom amendment proposed.
17. Mr. BENNETT (Australia) said he supported the United Kingdom amendment for the reasons already given by the United Kingdom representative.
18. Mr. SAMI (Iraq) supported the United Kingdom amendment; the offeror should be given an opportunity to withdraw.
19. Mr. FARNSWORTH (United States of America) expressed his delegation's concern at the Japanese interpretation of the original text of paragraph 2. If the United Kingdom amendment was rejected, it should be left to the courts to interpret the original text.
20. Mr. SZÁSZ (Hungary) said that his delegation was satisfied with the original text, which included an element of compromise.
21. Mr. DATE-BAH (Ghana) supported the United Kingdom amendment. In general, the Convention had chosen the principle of revocability and it would make the task of traders easier if that principle was consistently adopted. Where an offeror in a common law jurisdiction sets a time period for the lapse of the offer, without promising to keep the offer open, it would be a trap for him if he were held to have made an irrevocable offer.
22. Mr. GHESTIN (France) considered that the offer should be irrevocable since the offeree might otherwise be put to unwarrantable expense and trouble. The offeror fixed the period for acceptance and should be prepared to abide by it.
23. Mr. GORBANOV (Bulgaria) said that his delegation opposed the United Kingdom amendment for the reasons given by the French representative.
24. Mr. HERBER (Federal Republic of Germany) wondered whether a vote on the United Kingdom amendment would solve the problem. The discussion had shown that the original text was capable of different interpretations. His delegation's view, based on the English text, was the same as that of the Japanese delegation, but the United States delegation had suggested that paragraph 2 (a) might be interpreted differently. If the United Kingdom amendment was rejected, the Drafting Committee should be asked to revise the text to make it perfectly clear that the offer was irrevocable in the case in question.
25. The CHAIRMAN put to the vote the United Kingdom amendment to paragraph 2 (A/CONF.97/C.1/L.48).
26. The amendment was rejected by 31 votes to 7.
27. The CHAIRMAN invited the Committee to consider the proposal of the Federal Republic of Germany that the text should be redrafted to state unambiguously that fixing a time for acceptance of itself made the offer irrevocable.
28. Mr. KHOO (Singapore) said that the statements of delegations, confirmed by their votes, showed that the majority preferred that offers be irrevocable during the time fixed for their acceptance. Such being the case, he agreed with the representative of the Federal Republic of Germany that paragraph 2(a) was ambiguous. The formulation in article 5, paragraph 2 of ULF was much clearer.
29. Mr. DATE-BAH (Ghana) was in favour of the present text being retained as a compromise. It gave some flexibility to the courts. It would be undesirable to have irrevocability of offer imposed on two common law parties.
30. Mr. FARNSWORTH (United States of America) said it would be unfortunate to pursue any proposals which resulted in a change in the compromise which had been reached in UNCITRAL. An inflexible wording which imposed on two English-speaking common law parties an interpretation which belonged to another legal system would be unacceptable in the United States and his delegation would strongly oppose it.
31. Mr. MASKOW (German Democratic Republic) observed that the original text did not constitute a genuine compromise and was clearly open to different interpretations.
32. Mr. GHESTIN (France) said that a compromise grounded in ambiguity was undesirable. The French text was also somewhat unclear and he was disposed to support the proposal of the Federal Republic of Germany that the precise sense should be established along the lines that the majority of the Committee had approved by its vote.
33. Mr. HJERNER (Sweden) agreed that the original text represented a compromise but said he could not understand how it could be interpreted other than meaning that the offer was irrevocable for the period fixed for acceptance. However, two common law traders could avail themselves of article 7 [became CISG article 8 ] to agree upon another interpretation having regard to subjective intention. The paragraph could not be so interpreted in the case of one common law party and one civil law party. He was prepared to accept the text as it stood because he was confident that the courts could not fail to interpret it as supporting the irrevocability of the offer.
34. Mr. KRISPIS (Greece) considered that only one interpretation should be possible. It was not acceptable that one interpretation would apply when the parties to a contract were nationals of a common law country and another when those parties were nationals of a civil law country. Something of the kind could only be achieved by way of a reservation to the Convention. In the circumstances he fully supported the proposal of the representative of the Federal Republic of Germany.
35. Mr. FOKKEMA (Netherlands) said his country like others accepted the view that stating a fixed time for acceptance indicated that the offer was irrevocable. On the other hand, he could appreciate the position in the common law countries, and thought that efforts should be made to harmonize the law on that point. The essential principle was enshrined in article 7 [became CISG article 8 ], which indicated how the intent of the parties was to be determined. It was understandable that traders in a common law country would understand the situation differently from traders in a civil law country. He did not think it appropriate to lay down a hard-and-fast rule. It would be better for the courts to decide in individual cases how the provisions of article 7 [became CISG article 8 ] were to be interpreted in relation to the fixing of a time limit. All the Drafting Committee could usefully do would be to indicate a presumption in cases where the two parties belonged to different systems of law. He personally would prefer presumption of irrevocability, but would not favour a hard and fast rule.
36. Mr. POPESCU (Romania) said that under his country's system there was a fixed period of time for acceptance. He would interpret the provision in terms of a fixed time period, and would therefore prefer to retain the existing text.
37. Mr. FELTHAM (United Kingdom) explained that his delegation's purpose in proposing its earlier amendment had been to protect its traders when they were dealing with traders in civil law systems. He agreed with the United States representative that the existing text did allow for a situation in which, in dealings between traders in two common law countries, the stating of a fixed time limit did not necessarily indicate irrevocability. It would be unfortunate if the present text was so amended as to introduce the idea of an irrebuttable presumption of irrevocability, even between two parties who did not themselves intend it.
38. Mr. KHOO (Singapore) commented that the provisions of article 7 [became CISG article 8 ] were somewhat general, and that courts might have difficulty in reconciling them with the very explicit language of article 14 [became CISG article 16 ]. He considered it would be advisable to work out some provision for reservations and also to improve the text of paragraph 2(a) so as to make clear that when a fixed time was stated for acceptance, the offer was to be considered irrevocable.
39. Mr. BONELL (Italy) could not agree that the provision should be subject to reservations. It would be a strange state of affairs if traders had to find out whether the State of which the other party was a national had made a reservation in order to ascertain the implications of offers. He could not see any difficulty in applying the provision as it now stood.
40. The CHAIRMAN remarked there were two possible courses of action. The Committee could either accept the existing text, in which case the representative of the Federal Republic of Germany and other representatives would still be able to propose amendments in plenary, or it could continue the discussion, and refer the text to the Drafting Committee.
41. Mr. HERBER (Federal Republic of Germany) said that in the light of the discussion he would not press his proposal. It would be best to rely on the courts to find some reasonable common interpretation in cases of difficulty. Although he agreed with the representative of Singapore that article 5, paragraph 2 of ULF dealt with the same point more clearly, he would prefer for the present to leave the text unchanged and not refer it to the Drafting Committee, since there was a danger that that Committee would not simply clarify the text but would try to seek a further compromise, thereby wasting time.
42. Mr. KOPAC (Czechoslovakia) pointed out that article 13 [became CISG article 15 ] referred to the withdrawal of offers while article 14 [became CISG article 16 ] spoke of their revocation. He suggested that the Drafting Committee be asked to find a common term to avoid problems of interpretation.
43. The CHAIRMAN noted in article 13 [became CISG article 15 ] the term "withdrawal" was used to apply to cases where offers had not reached the stage of becoming effective, whereas in article 14 [became CISG article 16 ], "revocation" covered cases where offers had become effective but were subsequently revoked.
44. Mr. KOPAC (Czechoslovakia) said he was satisfied with that explanation and could accept the text as it stood.
45. Article 14 [became CISG article 16 ] was adopted.
46. The CHAIRMAN proposed that the Belgian proposal, which was applicable to the French text only (A/CONF.97/C.1/L.85) be forwarded to the Drafting Committee.
47. It was so agreed.
The meeting was suspended at 4.15 p.m. and resumed at 4.40 p.m.
(A/CONF.97/C.1/L.56, L.57, L.86, L.90)
48. Mr. FELTHAM (United Kingdom), introducing his delegation's amendment (A/CONF.97/C.1/L.56) to article 16 [became CISG article 18 ], paragraph 1, suggested that the first of the two changes proposed, the insertion of the word "unqualified" before the word "assent", was related to the United Kingdom proposal with regard to article 17 [became CISG article 19 ], and should perhaps be left aside until article 17 [became CISG article 19 ] was dealt with. The second change, to insert the words "or inactivity" after the word "silence" did not affect the basic meaning.
49. Mr. KRISPIS (Greece) supported both points in the United Kingdom proposal. The word "unqualified" was important, because without it there was some danger of confusion between acceptance of an offer and the final stage of negotiations. The word "inactivity" was also a useful addition since acceptance might result from certain acts on the part of the offeree.
50. Mr. FELTHAM (United Kingdom) pointed out that his proposed addition of the word "unqualified" would only stand if the United Kingdom proposals for the deletion of paragraphs 2 and 3 of article 17 [became CISG article 19 ] were accepted. If those proposals were not accepted, his amendment would result in an inconsistency between articles 16 [became CISG article 18 ] and 17 [became CISG article 19 ].
51. The CHAIRMAN suggested that discussion of the first point in the United Kingdom proposed amendment be deferred until article 17 [became CISG article 19 ] was discussed and invited comments on the second proposed change.
52. Mr. ROGNLIEN (Norway) said he could not see the need for the proposed addition. The meaning of the words proposed was not clear to him. Were words which were put verbally or in writing considered activity or inactivity? What about a statement of acceptance? If it was regarded as inactivity, it would not, under the amended section, amount to acceptance.
53. Mr. DATE-BAH (Ghana) thought that addition of the words "or inactivity" might be useful in situations where, for example, the offeree had not been silent, but had failed to follow up his earlier expression of interest.
54. Mr. VISCHER (Switzerland) supported the United Kingdom proposal.
55. The CHAIRMAN put to the vote the United Kingdom amendment to the second sentence in article 16 [became CISG article 18 ], paragraph 1.
56. The amendment was adopted by 16 votes to 15.
57. Mr. FARNSWORTH (United States of America), introducing his delegation's amendment (A/CONF.97/C.1/L.57), explained that it was intended to make clear that, while an offeree might indicate assent by an act, notice must be given of that act, or the offer did not stand. A substantial change introduced in his amendment as compared to the original text was to make it a condition of the continued existence of the contract that notice should be given within a reasonable time.
58. Mr. WAGNER (German Democratic Republic) said that the provisions of article 16 [became CISG article 18 ], paragraph 3, as they stood, involved a risk that a contract might be deemed to have been concluded without the knowledge of the offeror. He was not, however, altogether satisfied with the wording of the United States amendment (A/CONF.97/C.1/L.57), which did not make the intended meaning clear enough. The amendment should stress that the notification must relate to the acts which had the effect of bringing the contract into being.
59. Mr. FELTHAM (United Kingdom) observed that it was essential to preserve the important principle enshrined in article 16 [became CISG article 18 ], paragraph 2 that, if an offeror made an offer that could be accepted by means of an act without notice, there could still be a contract even if paragraph 3 of the same article were to be amended in the manner proposed by the United States delegation.
60. Mr. SZÁSZ (Hungary) said that he had considerable difficulty in conceiving of a practice or usage whereby a mere act was enough to form a contract without any notice being given to the offeror. Normally the act involved would be directed towards the other party and the act in itself would serve as a notice. As he saw it, the United States amendment appeared to be intended to cover the case where the act in question was directed at a third party. He also had serious misgivings regarding the effects of the provision contained in the last sentence of the text proposed by the United States for article 16 [became CISG article 18 ], paragraph 3.
61. Mr. KHOO (Singapore) wholeheartedly associated himself with the remarks of the United Kingdom and Hungarian representatives. He felt the United States amendment entirely inappropriate in the context of paragraph 3 of the article, which dealt with a situation in which a certain usage existed among the parties whereby a contract could be concluded by the performance of an act. It was too late to attempt to go back on the main provision of that paragraph as the United States amendment appeared to do.
62. Mr. SEVÓN (Finland) had misgivings regarding two aspects of the United States amendment. The first was the effect of the expression "within a reasonable time", which was used in the last sentence and presumably referred to the reasonable time for sending notice. The previous sentence, however, referred to the act being performed "within the period of time laid down in paragraph 2" which paragraph itself used the expression "within a reasonable time". He feared that difficulties of interpretation would arise from the combination of those two provisions.
63. The second point was that it seemed to him difficult to compel the offeror to send a notice when -- under the terms of paragraph 3 -- it was the established practice among the parties not to require any such notice.
64. Mr. KRISPIS (Greece) said that he supported the United States amendment but shared some of the views of the United Kingdom and Hungarian representatives.
65. Mr. GOLDSTAJN (Yugoslavia) favoured retaining paragraph 3 in its existing form, which corresponded to the practice in his country. He felt that the acceptance of the United States amendment was likely to lead to difficulties and complications.
66. Mr. DATE-BAH (Ghana) associated himself with the remarks of the United Kingdom and other delegations. As he read it, paragraph 3 was based on a presumed waiver of the need to notify.
67. Mr. FARNSWORTH (United States of America) emphasized that his amendment to paragraph 3 was not intended to restrict the effect of the provision as it stood.
68. Mr. SAMSON (Canada) said that, for the reasons given by the representatives of Hungary and the United Kingdom, he was opposed to the United States amendment in the form in which it had been submitted. It would render the acceptance rule embodied in paragraph 3 somewhat ambiguous and much more uncertain of application.
69. Mr. MATHANJUKI (Kenya) said that it would be extremely difficult for him to support the United States amendment because under its terms an offeror could find that he had no contract at a moment when he had already performed it.
70. Mr. BENNETT (Australia) considered that paragraph 3 constituted an exception to the rule embodied in paragraph 2. He could not support the United States amendment which would detract from the whole purpose of paragraph 3.
71. Mr. FARNSWORTH (United States) said that, in view of the scant support for his amendment (A/CONF.97/C.1/L.57), his delegation withdrew it.
72. The CHAIRMAN invited the Committee to consider the Belgian amendment to article 16 [became CISG article 18 ], paragraph 1 (A/CONF.97/C.1/L.86).
73. Mr. DABIN (Belgium) said that his delegation's amendment (A/CONF.97/C.1/L.86) was not intended to upset the balance of the substantive provision in paragraph 1 but to make the definition of acceptance more precise. The terms of the proposal were not inspired by the provisions of Belgian law but rather by the dictates of practice.
74. His amendment would serve to clarify the subject matter to which the acceptance must relate in order to be deemed an acceptance for purposes of article 16. His proposed text placed the emphasis on conduct which implied assent to terms considered by the parties themselves as material. In that context the term "conduct" covered not only acts but also inaction.
75. Mr. WAITITU (Kenya) considered that the essence of the matter was the acceptance of the offer and an offer constituted a package which could not be selectively accepted by the offeree as desired by him. He therefore opposed the Belgian amendment which would broaden article 16 [became CISG article 18 ] so much that in many cases a party would be in doubt as to whether it was in contract or not.
76. Mr. KRISPIS (Greece) said that he had considerable difficulty with the Belgian amendment. Article 12 [became CISG article 14 ] gave the definition of an offer and article 16 [became CISG article 18 ] referred to the acceptance of an offer as so defined. As he saw it, acceptance of the Belgian amendment would affect the provisions of article 12 [became CISG article 14 ] because it would treat as an offer actions which did not come within the ambit of article 12 [became CISG article 14 ].
77. Mr. STALEV (Bulgaria) noted the Belgian representative's explanation that under the Belgian amendment (A/CONF.97/C.1/L.86) conduct included inaction. Since the last sentence -- like that of the text as it stood -- specified that silence alone did not amount to acceptance, he wished to know what distinction was being made between "inaction" and "silence".
78. Mr. BONELL (Italy) said that he was attracted by the idea contained in the Belgian proposal but would prefer the text to be shortened. As it now stood, he felt that it could lead to difficulties of interpretation and application.
79. The substance of the Belgian proposal could provide a means of solving the problems that arose when the conclusion of a contract did not take the simple form of an offer followed by an acceptance. More and more often the conclusion of a contract constituted a complex process in which agreement was reached after a series of prolonged conversations and discussions.
80. Mr. DABIN (Belgium) announced that he would not press his amendment in view of the limited support it had attracted.
81. The CHAIRMAN invited the Committee to consider the Egyptian delegation's proposal (A/CONF.97/C.1/L.90) to delete from the second sentence of article 16 [became CISG article 18 ], paragraph 2, the concluding proviso reading: "including the rapidity of the means of communication employed by the offeror".
82. Mr. SHAFIK (Egypt) said that the words to be deleted were superfluous and dangerous. It was pointless to single out for special reference the rapidity of the means of communication when the sentence referred broadly to all "the circumstances of the transaction". The latter phrase would naturally include problems arising out of the means of communication used.
83. There was also a danger that the special reference to the particular circumstance of rapidity of means of communication might be taken to mean that the offeree must reply to the offer by using a means of communication as rapid as that used by the offeror himself. That could create difficulties for an offeree in a developing country, who might well not have access to means of communication as rapid as those used by the offeror. In many developing countries, for example, telex facilities were not available outside the capital and other large cities so that an offeree whose place of business was in the provinces would be faced with an obligation to reply by telex with which it was beyond his means to comply.
84. Mr. SANCHEZ CORDERO (Mexico) strongly supported the Egyptian proposal.
85. Mr. OLIVENCIA RUIZ (Spain) also welcomed the Egyptian amendment. He could see no reason for singling out the particular circumstance of rapidity of means of communication.
86. Mr. HERBER (Federal Republic of Germany) noted that the proviso under discussion had been taken bodily from the corresponding ULIS text and had not hitherto attracted any criticism. While it was true that the scope of application of the ULIS convention was limited, the fact remained that no difficulty had emerged in the application of the proviso under discussion. He was therefore unable to support the Egyptian proposal.
87. Mr. SHAFIK (Egypt) stressed that in his own country many of the distant provinces were short of good means of communication. It would be very difficult for an Egyptian racer in such a province to reply to an offer with the same speed as that used by the offeror.
88. Mr. ROGNLIEN (Norway) considered that something useful might be lost by eliminating the proviso entirely and suggested that the intention of the Egyptian proposal should be met by amending the original text to refer not only to the speed of the means of communication but also to the possibilities of communication available to the offeree.
89. Mr. FOKKEMA (Netherlands) said that he had some difficulty in visualizing the situation the Egyptian representative was trying to cover. To take the example of an offer made by telex, it seemed logical to assume that if the telex service was available to transmit the offer, it would likewise be available to enable the offeree to notify the offeror of his acceptance.
90. The CHAIRMAN pointed out that in practice that parallelism did not exist with respect to many means of communication. In the place where he usually spent his holidays, he could easily receive telephone calls from Austria but, if he wanted to telephone back to Vienna, he experienced the greatest difficulties.
91. Mr. KRISPIS (Greece) favoured the Egyptian proposal because it was undesirable as well as unreasonable to single out for special mention the particular circumstance of speed of communication.
92. Mr. SANCHEZ CORDERO (Mexico) reiterated his support for the Egyptian amendment.
93. Mr. MATHANJUKI (Kenya) warmly supported the Egyptian proposal to drop a proviso which, by singling out the particular circumstance of rapidity of communication, would make it difficult for the offeree to respond to the offeror.
94. Mr. BOGGIANO (Argentina) urged that the second sentence of paragraph (2) should be left unchanged. The proviso which the Egyptian amendment proposed to delete would deal with not only the case where communications were fast but also the case where they were slow. Both situations were clearly covered by the term "rapidity".
95. Mr. POPESCU (Romania) supported the Egyptian proposal to delete the proviso in question which was not only totally superfluous but also dangerous because of its unilateral character in favour of the offeror.