C:\FRED\CISGRE~1\art3-22.html

ARTICLE 3 [became CISG article 3 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 3 [became CISG article 3 ]

"(1) This Convention does not apply to contracts in which the preponderant part of the obligations of the seller consists in the supply of labour or other services.

"(2) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 3 [became CISG article 3 ] by France (A/CONF.97/C.1/L.9), Norway (A/CONF.97/C.1/L.13), Belgium (A/CONF.97/C.1/L.25), United Kingdom (A/CONF.97/C.1/L.26) and Czechoslovakia (A/CONF.97/C.1 /L.27).

3. These amendments were to the following effect:

Paragraph (1).

(i) Belgium (A/CONF.97/C.1/L.25):

"This Convention does not apply to contracts in which the supply of goods is accessory to other services by the party upon which the obligation falls."

[Referred to an ad hoc working group: see Consideration, 5, below.]

(ii) United Kingdom (A/CONF.97/C.1/L.26):

Revise paragraph (1) to read as follows:

"This Convention does not apply where the supply of labour or other services represents the major part in value of the seller's obligations."

[Withdrawn: see Consideration, 5, below.]

(iii) Czechoslovakia (A/CONF.97/C.1/L.27):

Delete paragraph (1) of this article.

[Rejected: see Consideration, 5, below.]

Paragraph (2)

(i) France (A/CONF.97/C.1/L.9):

That paragraph (2) should read as follows:

"(2) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders them supplies a substantial part of the materials necessary for such manufacture or production."

[Referred to an ad hoc working group: see Consideration, 5, below.]

(ii) Norway (A/CONF.97/C.1 /L.13):

Invert the provisions of paragraphs (1) and (2), and formulate paragraph (2) as follows:

"(2) Contracts for the supply of goods to be manufactured or purchased are to be considered sales where the party who takes the order undertakes to supply all, or the substantial part, of the materials necessary for such manufacture or production."

[Referred to an ad hoc working group: see Consideration, 5, below.]

(iii) United Kingdom (A/CONF.97/C.1/L.26):

Revise paragraph (2) to read as follows:

"Contracts for the supply of goods to be manufactured or purchased are to be considered sales unless the party who orders the goods undertakes to supply:

"(a) a substantial part of the materials; or

"(b) the information or expertise necessary for such manufacture or production."

[Withdrawn: see Consideration, 7, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 3 [became CISG article 3 ] at its 2nd, 3rd and 8th meetings on 11, 12 and 17 March 1980.

(ii) Consideration

5. At the 2nd meeting, the amendment by the United Kingdom with regard to paragraph (1) (A/CONF.97/C.l/L.26) was withdrawn, and the amendment by Czechoslovakia (A/CONF.97/C.1/L.27) was rejected. The amendments by France (A/CONF.97/C.1/L.9), Norway (A/CONF.97/C.1/L.13) and Belgium (A/CONF.97/C.1/L.25) were referred for consideration to an ad hoc working group composed of the representatives of Belgium, Egypt, Mexico, France, Hungary, Norway, Kenya and the United States.

6. At the 3rd meeting, the ad hoc working group submitted the following text of article 3 (A/CONF.97/C.1/L.72):

"(1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.

"(2) This Convention does not apply to contracts in which the preponderant part of the obligation of the party who furnishes the goods consists in the supply of labour or other services."

7. The amendment by the United Kingdom (A/CONF.97/C.1/L.26) was withdrawn and the Committee adopted the text submitted by the ad hoc working group.

ARTICLE 4 [became CISG article 4 ]

A. UNCITRAL Text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 4 [became CISG article 4 ]

"This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided therein, this Convention is not concerned with:

"(a) The validity of the contract or of any of its provisions or of any usage;

"(b) the effect which the contract may have on the property in the goods sold."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 4 [became CISG article 4 ] by Norway (A/CONF.97/C.1/L.14), United States of America (A/CONF.97/C.1/L.4), France (A/CONF.97/C.l/L.20), Finland (A/CONF.97/C.1/L.21), and Finland, France, United States of America (A/CONF.97/C.1/L.51).

3. These amendments were to the following effect:

New paragraph (2).

(i) Norway (A/CONF.97/C.1/L.14): Add the following as a new paragraph 2.

"(2) This Convention does not govern the settlement between the parties in cases where the seller exercises his right under a contractual clause reserving the right of property in, or other lien on, the goods for the purpose of securing payments due under the contract."

[Withdrawn: see Consideration, 5, below.]

[BECAME CISG ARTICLE 5 ]

(ii) United States of America (A/CONF.97/C.1/L.4):

Add a new paragraph to read as follows:

"(c) claims for damages due to personal injury."

[Consolidated into joint proposal, Finland, France, United States of America (A/CONF.97/C.1/L.51). Adopted and referred to Drafting Committee: see Consideration, 6, below.]

(iii) France (A/CONF.97/C.1/L.20):

Insert a new article 4 bis [became CISG article 5 ] reading as follows:

"This Convention does not apply to the liability of the seller for physical injury or death caused by the goods."

[Consolidated into joint proposal, Finland, France, United States of America (A/CONF.97/C.1/L.51). Adopted and referred to Drafting Committee: see Consideration, 6, below.]

(iv) Finland (A/CONF.97/C.1/L.21):

Add the following new paragraph to article 4 [became CISG article 5 ]:

"This Convention does not govern the liability of the seller for injury to person or for damage caused by the goods sold to other goods."

[Consolidated into joint proposal, Finland, France, United States of America (A/CONF.97/C.1/L.51). Adopted and referred to Drafting Committee: see Consideration, 6, below.]

(v) Finland, France, United States of America (A/CONF.97/C.1/L.51):

Add a new article 4 bis [became CISG article 5 ] to read as follows:

"This Convention does not apply to the liability of the seller for death or injury caused by the goods to any person."

[Adopted and referred to Drafting Committee: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 4 [became CISG article 5 ] at its 3rd meeting on 12 March 1980.

(ii) Consideration

5. At the 3rd meeting, the amendment by Norway (A/CONF.97/C.1/L.14) was withdrawn.

6. At the 3rd meeting, the amendments by United States of America (A/CONF.97/C.1/L.4), France (A/CONF.97/C.1/L.20) and Finland (A/CONF.97/C.1/L.21) were consolidated as a joint proposal of Finland, France, United States of America (A/CONF.97/C.1/L.51). The joint proposal (A/CONF.97/C.1/L.51) was adopted and referred to the Drafting Committee, and the UNCITRAL text adopted.

ARTICLE 5 [became CISG article 6 ]

A. UNCITRAL Text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 5 [became CISG article 6 ]

"The parties may exclude the application of this Convention or, subject to article 11 [became CISG article 12 ], derogate from or vary the effect of any of its provisions."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 5 [became CISG article 6 ] by the United Kingdom (A/CONF.97/C.1/L.8), Canada (A/CONF.97/C.1/L.10), India (A/CONF.97/C.1/L.30), German Democratic Republic (A/CONF.97/C.1/L.32), Belgium (A/CONF.97/C.1/L.41), Pakistan (A/CONF.97/C.1/L.45) and Italy (A/CONF.97/C.1/L.58).

3. These amendments were to the following effect:

(i) United Kingdom (A/CONF.97/C.1/L.8):

Add the following sentence to article 5 [became CISG article 6 ]:

"Such exclusion, derogation or variation may be express or implied."

[Rejected: see Consideration 6 below.]

(ii) Canada (A/CONF.97/C.1/L.10):

Revise article 5 [became CISG article 6 ] to read as follows:

"(1) The parties may exclude the application of this Convention or, subject to article 11 [became CISG article 12 ], derogate from or vary the effect of any of its provisions. However, except where the parties have wholly excluded this Convention, the obligations of good faith, diligence and reasonable care prescribed by this Convention may not be excluded by agreement, but the parties may by agreement determine the standards by which the performance of such obligations are to be measured if such standards are not manifestly unreasonable.

"(2) A provision in the contract that the contract shall be governed by the law of the particular State shall be deemed sufficient to exclude the application of this Convention even where the law of that State incorporates the provisions of the Convention."

[Rejected as orally amended: see Consideration, 5 and 6, below.]

(iii) India (A/CONF.97/C.1/L.30):

Revise the article to read as follows:

"Subject to article 11 [became CISG article 12 ], the parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions."

 [Referred to Drafting Committee: see Consideration, 5, below.]

(iv) German Democratic Republic (A/CONF.97/C.1/L.32):

Article 5 should be amended as follows:

"Even if this Convention is not applicable in accordance with articles 2 [became CISG article 2 ] or 3 [became CISG article 3 ], it shall apply if it has been validly chosen by the parties."

[Rejected as orally amended: see Consideration, 6, below.]

(v) Belgium (A/CONF.97/C.2/L.41):

Add a new paragraph (2):

"Such exclusion, derogation or variation must be express or derive with certainty from the circumstances of the case."

Add a new paragraph (3):

"The application of this Convention shall be excluded if the parties have stated that their contract is subject to a specific national law."

[Rejected: see Consideration, 6, below.]

(vi) Pakistan (A/CONF.97/C.1/L.45):

The word "expressly" may be added after the words "the parties may".

[Rejected: see Consideration, 6, below.]

(vii) Italy (A/CONF.97/C.1/L.58):

Add a new paragraph (2) to article 5 [became CISG article 6 ] to read as follows:

"(2) The Convention may only be excluded in its entirety where the parties have expressly so agreed or where they have chosen the law of a non-contracting State to govern their contract."

[Rejected as orally amended: see Consideration, 8, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 5 [became CISG article 6 ] at its 3rd and 4th meetings on 12 and 13 March 1980 respectively.

(ii) Consideration

5. At the 3rd meeting, the amendment by India (A/CONF.97/C.1/L.30) was referred to the Drafting Committee. The first paragraph of the amendment by Canada (A/CONF.97/C.1/L.10) was orally amended by the deletion of the words "by agreement, but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable" and rejected by a vote of 4 in favour, and a greater number against.

6. At the 4th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.8) was rejected by a vote of 12 in favour and 19 against; the second paragraph of the amendment by Canada (A/CONF.97/C.1/L.10) was rejected by a vote of 3 in favour, and a greater number against; the amendment by Belgium (A/CONF.97/C.1/L.41) to add a new paragraph (2) was rejected by a vote of 8 in favour, and a greater number against; and the amendment by Pakistan (A/CONF.97/C.1/L.45) was rejected by a vote of 4 in favour, and a greater number against. The amendment by the German Democratic Republic (A/CONF.97/C.1/L.32) as orally amended by the substitution for "2" of "2(b)-2(f)" was rejected by a vote of 9 in favour and 21 against. The amendment by Belgium (A/CONF.97/C.1/L.41) to add a new paragraph (3) was withdrawn.

7. At the 4th meeting, the amendment by Italy (A/CONF.97/C.1/L.58) was orally amended to read as follows:

"Even if this Convention is not applicable in accordance with article 2 [became CISG article 2 ], sub-paragraphs (b), (c), (d), (e) or (f), or with article 3 [became CISG article 3 ], it shall apply if it has been validly chosen by the parties, to the extent that it does not affect the application of any mandatory provisions of law which would have been applicable if the parties had not chosen this Convention."

8. It was rejected, and the UNCITRAL text adopted subject to the reference to the Drafting Committee of the amendment by India (A/CONF.97/C.1/L.30).

ARTICLE 6 [became CISG article 7 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 6 [became CISG article 7 ]

"In the interpretation and application of the provisions of this Convention, regard is to be had to its international character and to the need to promote uniformity and the observance of good faith in international trade."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 6 [became CISG article 7 ] by Bulgaria (A/CONF.97/C.1/L.16), Czechoslovakia (A/CONF.97/C.1/L.15), Italy (A/CONF.97/C.1/L.49 and L.59), the United States of America (A/CONF.97/C.1/L.5), France (A/CONF.97/C.1/L.22) and Norway (A/CONF.97/C.1/L.28).

3. These amendments were to the following effect: Proposed additional paragraphs for article 6 [became CISG article 7 ].

(i) Bulgaria (A/CONF.97/C.1/L.16):

Add a new paragraph (2) to article 6 [became CISG article 7 ], reading as follows:

"(2) Questions which cannot be solved according to paragraph (1) of this article shall be settled according to the law of the seller's place of business. The same applies to the questions mentioned in article 4, paragraph (a), as well as to other questions, governed by the law proper to the contract."

 [Rejected: see Consideration, 5, below.]

(ii) Czechoslovakia (A/CONF.97/C.1/L.15):

Add a new paragraph (2) to article 6 [became CISG article 7 ] to read as follows:

"(2) Questions concerning matters governed by this Convention which are not settled therein shall be settled in conformity with the law applicable by virtue of the rules of private international law."

[Rejected: see Consideration, 5, below.]

(iii) Italy (A/CONF.97/C.1/L.59):

Delete the words "and the observance of good faith in international trade" (cf. in this respect the proposed new article 6 [became CISG article 7 ] ter) and add a new sentence:

"Questions concerning matters governed by this Convention which are not expressly settled therein shall be settled in conformity with the general principles on which this Convention is based or, in the absence of such principles, by taking account of the national law of each of the parties."

Add a new article 6 [became CISG article 7 ] ter to read as follows:

"In the formation [interpretation] and performance of a contract of sale the parties shall observe the principles of good faith and international co-operation."

[Rejected: see Consideration, 5, below].

(iv) Italy (A/CONF.97/C.1/L.49):

Insert the following new article after article 6 [became CISG article 7 ]:

"Article 6 [became CISG article 7 ] bis

"Interpretation of contracts

"For the purposes of this Convention, the contract of sale shall be interpreted in accordance with the common will of the parties, reference being made even to their conduct."

[Rejected: see Consideration, 5. below.]

Revision of article 6 [became CISG article 7 ].

(i) United States of America (A/CONF.97/C.1/L.5):

Revise article 6 [became CISG article 7 ] to read as follows:

"In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application as well as to ensure the observance of good faith in international trade."

[Referred to Drafting Committee: see Consideration, 6, below.]

(ii) France (A/CONF.97/C.1/L.22):

It is proposed that article 6 [became CISG article 7 ] should read as follows:

"For the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

[Referred to Drafting Committee: see Consideration, 6, below.]

 (iii) Norway (A/CONF.97/C.1/L.28):

Delete the words:

"and the observance of good faith in international trade"

 Article [6] [became CISG article 7 ]

At the end of paragraph 3, add the words:

"having regard to the need to ensure the observance of good faith in international trade"

[Withdrawn: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 6 [became CISG article 7 ] at its 5th meeting on 13 March 1980.

(ii) Consideration

Proposed additional paragraphs for article 6 [became CISG article 7 ].

5. At the 5th meeting, the amendment by Czechoslovakia (A/CONF.97/C.1/L.15) was rejected by a vote of 9 in favour and 20 against, and the amendment by Bulgaria (A/CONF.97/C.1/L.16) was also rejected. The amendment by Italy (A/CONF.97/C.1/L.59) was rejected by a vote of 10 in favour and 18 against, and another amendment by Italy (A/CONF.97/C.1/L.49)was also rejected.

The German Democratic Republic submitted the following oral proposal:

"Questions concerning matters governed by this Convention which are not expressly settled therein shall be settled in conformity with the general principles on which this Convention is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

This proposal was adopted by 17 votes in favour, 14 against, with 11 abstentions.

Revision of article 6 [became CISG article 7 ].

6. At the 5th meeting, the amendment of Norway (A/CONF.97/C.1/L.28) was withdrawn. The UNCITRAL text was adopted, subject to consideration by the Drafting Committee of the amendments by the United States (A/CONF.97/C.1/L.5) and France (A/CONF.97/C.1/L.22).

ARTICLE 7 [became CISG article 8 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 7 [became CISG article 8 ]

"(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.

"(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person would have had in the same circumstances.

"(3) In determining the intent of a party or the understanding a reasonable person would have had in the same circumstances, due consideration is to be given to all relevant circumstances of the case including the negotations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 7 [became CISG article 8 ] by Norway (A/CONF.97/C.1/L.28), India (A/CONF.97/C.l/L.31), United Kingdom (A/CONF.97/C.1/L.33), Egypt (A/CONF.97/C.1/L.43), Italy (A/CONF.97/C.1/L.50), Sweden (A/CONF.97/C.1/L.52) and Pakistan (A/CONF.97/C.1/L.53).

3. These amendments were to the following effect:

Article as a whole.

(i) Sweden (A/CONF.97/C.1/L.52):

Delete this article.

[Rejected: see Consideration, 5, below.]

Paragraph (1)

(ii) India (A/CONF.97/C.1/L.31):

Revise paragraph (1) to read as follows:

"For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or ought to have known what that intent was."

[Rejected: see Consideration, 6, below.]

(iii) United Kingdom (A/CONF.97/C.1/L.33):

Revise paragraph (1) to read as follows:

"For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew what that intent was."

[Rejected: see Consideration, 6, below.]

(iv) Italy (A/CONF.97/C.1/L.50):

Delete paragraph (1).

[Withdrawn: see Consideration, 6, below.]

Paragraph (2)

(v) Egypt (A/CONF.97/C.1/L.43):

Amend paragraph (2) to read as follows:

"If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person acting in the same capacity would have had in the same circumstances."

[Adopted: see Consideration, 7, below.]

(vi) Pakistan (A/CONF.97/C.1/L.53):

Revise paragraph (2) as follows:

"If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person would unavoidably have had in the same circumstances."

[Rejected: see Consideration, 7, below.]

(vii) Norway (A/CONF.97/C.1/L.8):

At the end of paragraph (3), add the words:

"having regard to the need to ensure the observance of good faith in international trade."

[Withdrawn: see Consideration, 8, below.]

(viii) Pakistan (A/CONF.97/C.1/L.53):

Revise paragraph (3) to read as follows:

"In determining the intent of a party or the understanding a reasonable person would unavoidably have had in the same circumstances, due consideration is to be given to all circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."

[Withdrawn: see Consideration, 8, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 7 [became CISG article 8 ] at its 6th meeting on 14 March 1980.

(ii) Consideration

Article as a whole.

5. At the 6th meeting, the amendment by Sweden (A/CONF.97/C.1/L.52) was rejected by a vote of 6 in favour, and a greater number against.

Paragraph (1).

6. At the 6th meeting, the amendment by India (A/CONF.97/C.1/L.31) was rejected by a vote of 6 in favour and 24 against; and the amendment of the United Kingdom (A/CONF.97/C.1/L.33) was rejected by a vote of 7 in favour and 26 against. The amendment by Italy (A/CONF.97/C.1/L.50) was withdrawn, and the UNCITRAL text adopted.

Paragraph (2).

7. At the 6th meeting, the amendment by Pakistan (A/CONF.97/C.1/L.53) was rejected, and the amendment by Egypt (A/CONF.97/C.1/L.43) was adopted by a vote of 19 in favour and 13 against, and referred to the Drafting Committee.

Paragraph (3).

8. At the 6th meeting, the amendments by Norway (A/CONF.97/C.1/L.8) and Pakistan (A/CONF.97/C.1/L.53) were withdrawn, and the UNCITRAL text adopted.

ARTICLE 8 [became CISG article 9 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 8 [became CISG article 9 ]

"(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.

"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 8 [became CISG article 9 ] by China (A/CONF.97/C.1/L.24), Czechoslovakia (A/CONF.97/C.1/L.40), India (A/CONF.97/C.1/L.34), Sweden (A/CONF.97/C.1/L.19), Pakistan (A/CONF.97/C.1/L.64), United States of America (A/CONF.97/C.1/L.6), France (A/CONF.97/C.1/L.23) and Egypt (A/CONF.97/C.1/L.44).

3. These amendments were to the following effect:

Paragraph (2).

(i) China (A/CONF.97/C.1/L.24):

Paragraph (2) should be revised by adding "reasonable" before "usage" to read:

"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract a reasonable usage of which the parties knew or ought to have known . . .".

[Rejected: see Consideration, 6, below.]

(ii) Czechoslovakia (A/CONF.97/C.1/L.40):

Add the following words at the end of paragraph (2) of article 8 [became CISG article 9 ]:

"provided the usage is not contrary to this Convention. "

[Rejected: see Consideration, 6, below].

(iii) India (A/CONF.97/C.1/L.34):

Revise paragraph (2) of article 8 [became CISG article 9 ] to read as follows:

"The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract a usage of which the parties knew or ought to have known at the time of the contract."

[Rejected: see Consideration, 6, below.]

(iv) Sweden (A/CONF.97/C.1/L.19):

In order to clarify the substance of the Convention on this point we propose that the words "or an interpretation of a trade term" are inserted in article 8 [became CISG article 9 ], paragraph (2) between the words "a usage" and "of which the parties knew".

An alternative would be to reintroduce the provision in article 9, paragraph 3 of ULIS 1964.

[Rejected: see Consideration, 6, below.]

(v) Pakistan (A/CONF.97/C.1/L.64):

Replace the words "unless otherwise agreed" in paragraph (2) of article 8 [became CISG article 9 ] by the words "unless their conduct shows otherwise".

[Rejected: see Consideration, 6, below.]

(vi) United States of America (A/CONF.97/C.1/L.6):

Revise paragraph (2) of article 8 [became CISG article 9 ] to read as follows:

"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned".

[Adopted and referred to Drafting Committee: see Consideration, 6, below.]

Drafting proposal to paragraph (2).

France (A/CONF.97/C.1/L.23):

Proposition de rédaction du paragraphe 2:

(2) Sauf convention contraire des parties, celles-ci sont réputées s'être tacitement référées a tout usage dont elles avaient connaissance ou auraient dû avoir connaissance et qui, . . . (le reste sans changement).

[Adopted: see Consideration, 7, below.]

New paragraph (3).

Egypt (A/CONF.97/C.1/L.44):

Add a paragraph (3):

"Where expressions, provisions or forms of contract commonly used in commercial practice are employed, they shall be interpreted according to the meaning usually given to them in the trade concerned."

[Rejected: see Consideration, 8, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 8 [became CISG article 9 ] at its 6th and 7th meetings on 14 March 1980.

(ii) Consideration

Paragraph (1).

5. At the 7th meeting, the UNCITRAL text was adopted.

Paragraph (2).

6. At the 6th and 7th meetings, the amendment by China (A/CONF.97/C.1/L.24) was rejected by 9 votes in favour, 17 against, with 15 abstentions; the amendment by India (A/CONF.97/C.1/L.34) was rejected by 9 votes in favour and 25 against; the amendment by Sweden (A/CONF.97/C.1/L.19) was rejected by 12 votes in favour, and 23 against; and the amendment by Pakistan (A/CONF.97/C.1/L.64) was rejected by 15 votes in favour and 18 against. The amendment by the United States (A/CONF.97/C.1/L.6) was adopted by 19 votes in favour, 17 against, with 3 abstentions, and referred to the Drafting Committee, and the UNCITRAL text adopted.

Drafting proposal to paragraph (2).

7. At the 7th meeting, the drafting amendment by France (A/CONF.97/C.1/L.23 in the French text only) was adopted, and referred to the Drafting Committee.

New paragraph (3).

8. At the 7th meeting, the amendment by Egypt (A/CONF.97/C.1/L.44) was rejected by 16 votes in favour, and 21 against.

ARTICLE 9 [became CISG article 10 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 9 [became CISG article 10 ]

For the purposes of this Convention:

(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract;

(b) if a party does not have a place of business, reference is to be made to his habitual residence."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted by the Federal Republic of Germany (A/CONF.97/C.1/L.18) and Pakistan (A/CONF.97/C.1/L.67).

3. These amendments were to the following effect:

(i) Federal Republic of Germany (A/CONF.97/C.1/L.18):

The following sub-paragraph (c) should be added: "(c) 'writing' includes telegram and telex."

[Adopted: see Consideration, 5, below.]

(ii) Pakistan (A/CONF.97/C.1 /L.67):

Add to article 9 [became CISG article 10 ] a definition of the term "party" used therein.

[Withdrawn, subject to the inclusion of a statement in the summary records: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered this article at its 7th meeting on 14 March 1980.

(ii) Consideration

5. At the 7th meeting, the amendment by Pakistan (A/CONF.97/C.1/L.67) was withdrawn subject to a statement being included in the summary records of Committee I, that in the understanding of the Committee, the term "party" included a state agency participating in international trade. The amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.18) was adopted, by 36 votes in favour, and none against, and the UNCITRAL text adopted subject to this amendment.

ARTICLE 10 [became CISG article 11 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 10 [became CISG article 11 ]

"A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirements as to form. It may be proved by any means, including witnesses."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 10 [became CISG article 11 ] by Canada (A/CONF.97/C.1/L.54/Rev. 1).

3. This amendment was to the following effect:

New paragraph (2).

Add a paragraph (2) reading as follows (revised version):

"Between the parties to a contract of sale evidenced by a written document, evidence by witnesses shall be inadmissible for the purposes of confuting or altering its terms, unless there is prima facie evidence resulting from a written document from the opposing party, from his evidence or from a fact the existence of which has been clearly demonstrated. However, evidence by witnesses shall be admissible for purposes of interpreting the written document."

[Rejected: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 10 [became CISG article 11 ] at its 7th meeting on 14 March 1980.

(ii) Consideration

5. At the 7th meeting, the amendment by Canada (A/CONF.97/C.1/L.54/Rev. 1) was rejected.

ARTICLE 11 [became CISG article 12 ] AND (X) [became CISG article 96 ]

A. UNCITRAL text [of article 11 ] [became CISG article 12 ] and text of article (X) [became CISG article 96 ]

1. The Committee considered together article 11 [became CISG article 12 ] of the text of the United Nations Commission on International Trade Law, and article (X) [became CISG article 96 ] of the draft articles concerning implementation, declarations, reservations and other final clauses prepared by the Secretary-General (A/CONF.97/6).

2. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 11 [became CISG article 12 ]

"Any provision of article 10 [became CISG article 11 ], article 27 [became CISG article 29 ] or Part II of this Convention that allows a contract of sale or its modification or abrogation or any offer, acceptance, or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article (X) of this Convention [became CISG article 96 ]. The parties may not derogate from or vary the effect of this article."

[Go to Secretariat Commentary on the above text]

3. The text prepared by the Secretary-General provided as follows:

"Article (X) [became CISG article 96 ]

"Declarations relating to contracts in writing

"A Contracting State whose legislation requires a contract of sale to be concluded in or evidenced by writing may at the time of signature, ratification or accession make a declaration in accordance with article 11 [became CISG article 12 ] that any provision of article 10 [became CISG article 11 ], article 27 [became CISG article 29 ], or Part II of this Convention, which allows a contract of sale or its modification or abrogation or any offer, acceptance, or other indication of intention to be made in any form other than in writing shall not apply where any party has his place of business in a Contracting State which has made such a declaration."

B. Amendments

4. Amendments were submitted to article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ] by the Union of Soviet Socialist Republics (A/CONF.97/C.1/L.35) and Austria (A/CONF.97/C.1 /L.42).

5. An amendment was submitted to article 11 [became CISG article 12 ] by the Netherlands (A/CONF.97/C.1/L.71).

6. Amendments were submitted to article (X) [became CISG article 96 ] by the Netherlands (A/CONF.97/C.1/L.76), the United Kingdom (A/CONF.97/C.1/L.88) and the Federal Republic of Germany (A/CONF.97/C.1/L.96).

7. These amendments were to the following effect:

Article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ].

(i) Union of Soviet Socialist Republics (A/CONF.97/C.1/L.35):

Add a reference to article 24 [became CISG article 26 ] in article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ].

[Withdrawn: see Consideration, 9, below].

(ii) Austria (A/CONF.97/C.1/L.42):

Delete article 11 [became CISG article 12 ] and amend article (X) [became CISG article 96 ] to read as follows:

A Contracting State may at the time of signature, ratification or accession make a declaration that it will not apply any provision of this Convention which allows a contract of sale or its modification or abrogation or any offer, acceptance, or other indication of intention to be made in any form other than in writing where any party has his place of business in a Contracting State which has made such a declaration.

Alternative proposal:

Delete articles 11 [became CISG article 12 ] and (X) [became CISG article 96 ].

[Rejected: see Consideration, 9, below.]

Article 11 [became CISG article 12 ].

(iii) Netherlands (A/CONF.97/C.1/L.71):

In the first sentence of article 11 [became CISG article 12 ], insert the words "to this effect" between the words "has made a declaration" and the words "under article (X) [became CISG article 96 ]".

[Referred to Drafting Committee: see Consideration,10, below.]

Article (X) [became CISG article 96 ].

(iv) Netherlands (A/CONF.97/C.1/L.76):

Revise article (X) [became CISG article 96 ] to read as follows:

A Contracting State whose legislation requires all or certain types of contracts of sale to be concluded in or evidenced by writing may at the time of signature, ratification or accession make a declaration in accordance with article 11 [became CISG article 12 ] that any provision of article 10 [became CISG article 11 ], article 27 [became CISG article 29 ], or Part II of this Convention, which allows a contract of sale or its modification or abrogation or any offer, acceptance, or other indication of intention to be made in any form other than in writing shall not apply to the contracts concerned where any party has his place of business in a Contracting State which has made such a declaration.

[Rejected: see Consideration, 11, below.]

(v) United Kingdom (A/CONF.97/C.1/L.88):

1. Insert after the word "ratification" in the second line of article (X) [became CISG article 96 ] the words "acceptance, approval".

2. Replace the words "a Contracting State" in the last line by the words "the Contracting State".

[Referred to the Second Committee: see Consideration, 11, below.]

(vi) Federal Republic of Germany (A/CONF.97/C.1/L.96):

Insert after the words "at the time of signature, ratification or accession " the words "or at any time thereafter".

[Referred to the Second Committee: see Consideration, 11, below.]

C. Proceedings in the First Committee

(i) Meetings

8. The First Committee considered article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ] at its 8th meeting on 17 March 1980.

(ii) Consideration

Article 11 [became CISG article 12 ] and article (X) [became CISG article 96 ].

9. At the 8th meeting, the amendment by the Union of Soviet Socialist Republics (A/CONF.97/C.1/L.35) was withdrawn, and the amendment by Austria (A/CONF.97/C.1/L.42) was rejected.

Article 11 [became CISG article 12 ].

10. At the 8th meeting, the amendment by the Netherlands (A/CONF.97/C.1/L.71) was referred to the Drafting Committee, and the UNCITRAL text adopted.

Article (X) [became CISG article 96 ].

11. At the 8th meeting the amendment by the Netherlands (A/CONF.97/C.1/L.76) was rejected by a vote of 11 in favour and 16 against. The amendments by United Kingdom (A/CONF.97/C.1/L.88) and the Federal Republic of Germany (A/CONF.97/C.1/L.96) were referred to the Second Committee for consideration in relation to article (X) [became CISG article 96 ].

ARTICLE 12 [became CISG article 14 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 12 [became CISG article 14 ]

"(1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.

"(2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 12 [became CISG article 14 ] by the United Kingdom (A/CONF.97/C.1/L.36), Union of Soviet Socialist Republics (A/CONF.97/C.1/L.37), Finland (A/CONF.97/C.1/L.29), Norway (A/CONF.97/C. l/L.38), Austria (A/CONF.97/C.1/L.46), the United States of America (A/CONF.97/C.1/L.55), an ad hoc working group (A/CONF.97/C.1/L.103) and Australia (A/CONF.97/C.1/L.69).

3. These amendments were to the following effect:

Paragraph (1).

(i) United Kingdom (A/CONF.97/C.1/L.36):

1. Delete the second sentence of paragraph (1) of article 12 [became CISG article 14 ].

2. If the above proposal is rejected, revise the second sentence of paragraph (1) of this article to read as follows:

"A proposal is sufficiently definite if it contains terms relating to matters such as the goods, the quantity or the price which enable the offeree to decide whether or not to accept the proposal."

3. If both the proposals at 1. and 2. above are rejected, revise the second sentence of paragraph (1) of this article to read as follows:

"A proposal is sufficiently definite if it indicates the goods, whether ascertained or not, and expressly or implicity fixes or makes provision for determining the quantity and the price."

[Rejected: see Consideration, 5, below.]

(ii) Union of Soviet Socialist Republics (A/CONF.97/C.l/L.37):

"In paragraph 1, delete the words "or implicitly", or the words "expressly or implicitly", in order to avoid complications that may arise in interpreting the idea of implicit fixing of the procedure for determining the quantity and the price, particularly in the light of the examples given in the Secretariat's commentary on article 12 of the draft Convention [became CISG article 14 ] (paragraphs 14 - 17).

"It should be borne in mind, where a certain practice has become established between the parties to a contract, deletion of the words in question will not cause any difficulties, in view of the general provisions contained, in particular, in draft articles 7 and 8 [became CISG article 8 and CISG article 9 ]."

[Rejected: see Consideration, 9, below.]

(iii) Finland (A/CONF.97/C.1/L.29):

Revise paragraph 1 to read as follows:

"A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it contains terms relating to matters such as the goods, the quantity or the price which enable the offeree to decide whether or not to accept the proposal."

[Referred to ad hoc working group: see Consideration,5, below.]

(iv) Norway (A/CONF.97/C.1/L.38):

It is proposed either to delete the sentence or to redraft it for instance as follows:

"A proposal is sufficiently definite if it contains terms relating to matters such as the goods, the quantity or the price which enable the offeree to decide whether or not to accept the proposal."

[Referred to ad hoc working group: see Consideration, 5, below.]

(v) Austria (A/CONF.97/C.1/L.46):

Delete the second sentence of paragraph (1). Alternative proposal:

Amend this second sentence to read as follows:

"Any proposal is sufficiently definite, in particular, if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price."

[Referred to ad hoc working group: see Consideration, 5, below.]

(vi) United States of America (A/C0NF.97/C.1/L.55):

Revise paragraph (1) of article 12 [became CISG article 14 ] to read as follows:

"(1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance."

[Delete sentence two.]

[Referred to ad hoc working group: see Consideration, 5, below.]

Paragraph (2).

Australia (A/CONF.97/C.1/L.69):

Add the following words to paragraph (2):

"and the proposal is sufficiently definite in accordance with paragraph (1)."

[Referred to Drafting Committee: see Consideration, 12, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 12 [became CISG article 14 ] at its 8th and 11th meetings on 17th and 18th March, 1980, respectively.

(ii) Consideration

Paragraph (1).

5. At its 8th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.36) was rejected by 17 votes in favour and 22 against. The amendments by Finland (A/CONF.97/C.1/L.29), Norway (A/CONF.97/C.1/L.38), Austria (A/CONF.97/C.1/L.46) and the United States of America (A/CONF.97/C.1/L.55) were referred to an ad hoc working group. At the 11th meeting, the ad hoc working group submitted two proposals(A/CONF.97/C.1/L.103) for consideration:

"1. It is proposed that the second sentence of this article read as follows:

"A proposal is sufficiently definite if its terms relating to such matters as the goods, the quantity or the price are such as to enable the conclusion of a contract by acceptance."

6. This amendment was rejected by 15 votes in favour and 26 against.

7. The working group also submitted for consideration the proposal of Austria (A/CONF.97/C.1/L.46):

"Any proposal is sufficiently definite, in particular, if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price."

8. This amendment was rejected by 19 votes in favour and 19 against.

9. The amendment by the Union of Soviet Socialist Republics (A/CONF.97/C.1/L.37) was rejected by 9 votes in favour and 24 against.

10. An oral proposal was submitted by Yugoslavia on article 12 [became CISG article 14 ], paragraph (1) as follows:

"A proposal is sufficiently definite if its terms relating to such matters as the goods and the price are such as to enable the conclusion of a contract by acceptance."

11. This proposal was rejected by 7 votes in favour and 22 against and the UNCITRAL text was adopted.

Paragraph (2).

12. At the 8th meeting, the amendment by Australia (A/CONF.97/C.1/L.69) was referred to the Drafting Committee, and the UNCITRAL text adopted.

ARTICLE 13 [became CISG article 15 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 13 [became CISG article 15 ]

"(1) An offer becomes effective when it reaches the offeree.

"(2) An offer may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. It may be withdrawn even if it is irrevocable."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 13 [became CISG article 15 ] by France (A/CONF.97/C.1/L.47).

3. This amendment was to the following effect:

France (A/CONF.97/C.1/L.47):

Amend article 13 [became CISG article 15 ], paragraph (2) to read as follows:

"An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer."

[Referred to Drafting Committee: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The Committee considered article 13 [became CISG article 15 ] at its 9th meeting on 17 March 1980.

(ii) Consideration

5. At the 9th meeting, paragraph (1) of the UNCITRAL text was adopted. The amendment by France (A/CONF.97/C.1/L.47) was referred to the Drafting Committee, and paragraph (2) of the UNCITRAL text adopted.

ARTICLE 14 [became CISG article 16 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 14 [became CISG article 16 ]

"(1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance.

"(2) However, an offer cannot be revoked:

"(a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable, or

"(b) if it was reasonable for the offeree to rely upon the offer as being irrevocable and the offeree has acted in reliance on the offer."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 14 [became CISG article 16 ] by United Kingdom (A/CONF.97/C.1/L.48) and German Democratic Republic (A/CONF.97/C.1/L.84).

3. These amendments were to the following effect:

Paragraph (1).

(i) United Kingdom (A/CONF.97/C.1/L.48):

Revise paragraph (1) of article 14 [became CISG article 16 ] to read as follows:

"Until a contract is concluded, an offer addressed to one or more specific persons may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. An offer other than one addressed to one or more specific persons is revoked when the revocation is published in the same way as the offer."

[Rejected: see Consideration, 5, below.]

(ii) German Democratic Republic (A/CONF.97/C.1/L.84):

Paragraph (1) should be revised as follows:

"An offer may be revoked if the revocation reaches the offeree before he has either dispatched an acceptance or the contract is concluded by other means."

[Adopted: see Consideration, 5, below.]

Paragraph (2).

United Kingdom (A/CONF.97/C.1/L.48):

Revise subparagraph (a) of paragraph (2) to read as follows:

"(a) if, and to the extent that, it indicates that it is irrevocable. The stating of a fixed time for acceptance does not of itself indicate that an offer is irrevocable;"

[Rejected: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 14 [became CISG article 16 ] at its 9th meeting on 17 March 1980.

(ii) Consideration

Paragraph (1).

5. At the 9th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.48) was rejected. The amendment by the German Democratic Republic (A/CONF.97/C.1/L.84) was adopted and referred to the Drafting Committee, and the UNCITRAL text adopted.

Paragraph (2).

6. At the 9th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.48) was rejected by 7 votes in favour and 31 against, and the UNCITRAL text adopted.

ARTICLE 15 [became CISG article 17 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 15 [became CISG article 17 ]

"An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 15 [became CISG article 17 ] by Belgium (A/CONF.97/C.1/L.85).

3. This amendment was to the following effect:

Belgium (A/CONF.97/C.1/L.85: for the French text only):

Il est proposé de rédiger en français cette disposition comme suit:

[Caducité de l'offre par refus.]

"Une offre, même irrevocable, devient caduque lorsque son refus parvient à l'auteur de l'offre."

[Referred to Drafting Committee: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The Committee considered article 15 [became CISG article 17 ] at its 9th meeting on 17 March 1980.

(ii) Consideration

5. At the 9th meeting the amendment by Belgium (A/CONF.97/C.1/L.85) was referred to the Drafting Committee, and the UNCITRAL text adopted.

ARTICLE 16 [became CISG article 18 ]

A. UNCITRAL TEXT

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 16 [became CISG article 18 ]

"(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence shall not in itself amount to acceptance.

"(2) Subject to paragraph (3) of this article, acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.

"(3) However, if, by virtue of the offer or as a result of practices with the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed provided that the act is performed within the period of time laid down in paragraph (2) of this article."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 16 [became CISG article 18 ] by the United Kingdom (A/CONF.97/C.1/L.56), Belgium(A/CONF.97/C.1/L.86), Egypt (A/CONF.97/C.1/L.90) and the United States of America (A/CONF.97/C. l/L.57).

3. These amendments were to the following effect:

Paragraph (1).

(i) United Kingdom (A/CONF.97/C.1/L.56):

Revise paragraph (1) of article 16 [became CISG article 18 ] to read as follows:

"A statement made by or other conduct of the offeree indicating unqualified assent to an offer is an acceptance. Silence or inactivity shall not of themselves amount to acceptance."

[Withdrawn as to the first sentence. Adopted as to the second sentence and referred to Drafting Committee: see Consideration, 5, below.]

(ii) Belgium (A/CONF.97/C.1/L.86):

Amend paragraph (1) to read as follows:

"Any conduct of the offeree implying assent to terms which the offeror considered or may have considered, due account being taken of the circumstances, as material during the negotiations is an acceptance within the meaning of this Convention. In no case shall silence alone on the part of the offeree amount to acceptance."

[Rejected: see Consideration, 6, below].

Paragraph (2).

Egypt (A/CONF.97/C.1/L.90):

In the second sentence of article 16 [became CISG article 18 ], paragraph (2), delete the words:

"including the rapidity of the means of communication employed by the offeror."

[Rejected: see Consideration, 7, below.]

Paragraph (3).

United States of America (A/CONF.97/C.1/L.57):

Revise paragraph (3) of article 16 [became CISG article 18 ] to read as follows:

"(3) However, if by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, the acceptance is effective at the moment the act is performed provided that the act is performed within the period of time laid down in paragraph (2) of this article. An offeror who is not notified within a reasonable time may treat the offer as having lapsed before acceptance. "

[Withdrawn: see Consideration, 9, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 16 [became CISG article 18 ] at its 9th and 10th meetings on 17th and 18th March 1980, respectively.

(ii) Consideration

Paragraph (1).

5. At the 9th meeting, part of the amendment of the United Kingdom (A/CONF.97/C.1/L.56) ("Silence or inactivity shall not of themselves amount to acceptance.") was adopted by 16 votes in favour, 15 against, and referred to the Drafting Committee. The other part of the United Kingdom amendment ("A statement made by or other conduct of the offeree indicating unqualified assent to an offer is an acceptance.") was postponed for discussion until consideration of article 17 [became CISG article 19 ]. At the 10th meeting on the 18th March this part of the United Kingdom amendment was withdrawn.

6. The amendment submitted by Belgium (A/CONF.97/C.1/L.86) was modified orally by adding the words "and usage." at the end of the second sentence. The amendment as modified orally was rejected by 12 votes in favour and 13 against, and the UNCITRAL text adopted.

Paragraph (2).

7. At the 10th meeting the amendment by Egypt (A/CONF.97/C.1/L.90) was rejected by 7 votes in favour and 22 against, and the UNCITRAL text adopted.

8. Belgium orally proposed that at the end of the second sentence of paragraph (2) there should be added the words "and usage". The proposal was rejected by 12 votes in favour and 13 against, and the UNCITRAL text adopted.

Paragraph (3).

9. At the 10th meeting the amendment by the United States of America (A/CONF.97/C.1/L.57) was withdrawn, and the UNCITRAL text adopted.

ARTICLE 17 [became CISG article 19 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 17 [became CISG article 19 ]

"(1) A reply to an offer which purports to be an acceptance 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 undue 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.

"(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."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 17 [became CISG article 19 ] by France (A/CONF.97/C.1/L.60), United Kingdom (A/CONF./C.1/L.61), Belgium (A/CONF.97/C.1/L.87), Bulgaria (A/CONF.97/C.1/L.91), Egypt (A/CONF.97/C.l/L.92), United States of America (A/CONF.97/C.l/L.97), Netherlands (A/CONF.97/C.1/L.98) and Federal Republic of Germany (A/CONF.97/C.1/L.157).

3. These amendments were to the following effect:

Paragraphs (2) and (3).

(i) United Kingdom (A/CONF.97/C.1/L.61):

Delete paragraphs (2) and (3).

[Rejected: see Consideration, 6, below.]

(ii) Bulgaria (A/CONF.97/C.1/L.91):

Delete paragraphs (2) and (3).

[Rejected: see Consideration, 6, below.]

Paragraph (2).

(iii) Netherlands (A/CONF.97/C.1/L.98):

A new sentence should be inserted between the first and the second sentence of paragraph (2):

"If the offeror does so object, the offeree can promptly retract the additional or different terms and the terms of the contract are those of the offer."

[Withdrawn: see Consideration, 7, below.]

(iv) Federal Republic of Germany (A/CONF.97/C.1/L.157):

Replace in the first sentence of paragraph (2) the words "unless the offeror objects to the discrepancy without undue delay" by the words:

"unless the offeror, without undue delay, objects to the discrepancy orally or dispatches a notice to that effect."

[Adopted: see Consideration, 8, below.]

Paragraph (3).

(v) France (A/CONF.97/C.1/L.60):

Amend article 17 (3) [became CISG article 19(3) ] to read as follows:

"(3) additional or different terms relating to the price, quality and quantity of the goods are considered to alter the terms of the offer materially, unless . . . "
(the rest remains unchanged).

[Rejected, see Consideration, 8, below.]

(vi) Bulgaria (A/CONF.97/C.1/L.91):

If the proposal to delete paragraphs (2) and (3) is rejected, delete the last portion of paragraph (3) reading:

"unless the offeree by virtue of the offer or the particular circumstances of the case has reason to believe they are acceptable to the offeree".

[Adopted: see Consideration, 8, below.]

(vii) Egypt (A/CONF.97/C.1/L.92):

Delete paragraph (3).

[Rejected: see Consideration, 8, below.]

(viii) United States of America (A/CONF.97/C.1/L.97):

In paragraph (3), delete the words "inter alia" and substitute the words "among other matters".

[Referred to the Drafting Committee: see Consideration, 8, below.]

Additional paragraph (4).

(ix) Belgium (A/CONF.97/C. I/L.87):

Add a fourth paragraph reading as follows:

"(4) When the offeror and the offeree have expressly (or implicitly) referred in the course of negotiations to general conditions the terms of which are mutually exclusive the conflict clauses should be considered not to form an integral part of the contract."

[Rejected: see Consideration, 9, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 17 [became CISG article 19 ] at its 10th, 17th and 18th meetings on 18 and 21 March 1980.

(ii) Consideration

Paragraph (1).

5. At the 10th meeting, the UNCITRAL text was adopted.

Paragraphs (2) and (3).

6. At the 10th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.61) was rejected by 20 votes in favour and 22 against, and the amendment by Bulgaria (A/CONF.97/C.1/L.96) was also rejected.

Paragraph (2).

7. At the 10th meeting, the amendment by Netherlands (A/CONF.97/C.1/L.98) was withdrawn. At the 18th meeting, the amendment of the Federal Republic of Germany (A/CONF.97/C.1/L.157) was adopted by 36 votes in favour and 2 against, and the UNCITRAL text adopted subject to this amendment.

Paragraph (3).

8. At the 10th meeting, the amendment by France (A/CONF.97/C.1/L.60) was rejected, and the amendment by Egypt (A/CONF.97/C.1/L.92) was also rejected by 9 votes in favour and 29 against. The amendment by the United States (A/CONF.97/C.1/L.97) was referred to the Drafting Committee. The amendment by Bulgaria (A/CONF.97/C.1/L.91) was adopted by 28 votes in favour and 13 against, and the UNCITRAL text adopted subject to this amendment.

Additional paragraph (4).

9. At the 10th meeting, the amendment by Belgium (A/CONF.97/C.1/L.87) was rejected by 6 votes in favour and 30 against.

ARTICLE 18 [became CISG article 20 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 18 [became CISG article 20 ]

"(1) A period of time for acceptance fixed by an offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by an offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.

"(2) If the notice of acceptance cannot be delivered at the address of the offeror due to an official holiday or a non-business day falling on the last day of the period for acceptance at the place of business of the offeror, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 18 [became CISG article 20 ] by the United Kingdom (A/CONF.97/C.1/L.62), Bulgaria (A/CONF.97/C.1/L.14) and Egypt (A/CONF.97/C.1/L.93).

3. These amendments were to the following effect:

Paragraph (1).

(i) United Kingdom (A/CONF.97/C.1/L.62):

It is proposed that the words "Unless otherwise stated by the offeror to the offeree" should be inserted before both sentences in paragraph (1) of this article.

[Withdrawn: see Consideration, 5, below.]

(ii) Bulgaria (A/CONF.97/C.1/L.94):

Amend the first sentence of article 18 [became CISG article 20 ], paragraph (1) to read as follows:

"A period of time for acceptance fixed by an offeror in a telegram or letter begins to run from the moment the telegram or letter is handed in for dispatch."

[Withdrawn: see Consideration, 5, below.]

Paragraph (2).

Egypt (A/CONF 97/C.l/L.93):

Amend the last sentence of article 18(2) [became CISG article 20(2) ] to read as follows:

"Official holidays or non-business days occurring during the running of a period of time for acceptance exceeding ten days are included in calculating the period. "

[Withdrawn: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 18 [became CISG article 20 ] at its 11th meeting on 18 March 1980.

(ii) Consideration

Paragraph (1).

5. At the 11th meeting, the amendments by the United Kingdom (A/CONF.97/C.1/L.62) and Bulgaria (A/CONF.97/C.1/L.94) were withdrawn, and the UNCITRAL text adopted.

Paragraph (2).

6. At the 11th meeting, the amendment by Egypt (A/CONF.97/C. 1/L.93) was withdrawn, and the UNCITRAL text adopted.

ARTICLE 19 [became CISG article 21 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 19 [became CISG article 21 ]

"(1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror so informs the offeree orally or dispatches a notice to that effect.

"(2) If the letter or document containing late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror informs the offeree orally that he considers his offer as having lapsed or dispatches a notice to that effect."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. No amendments were submitted to this article.

C. Proceedings in the First Committee

(i) Meetings

3. The First Committee considered this article at its 11th meeting on 18 March 1980.

(ii) Consideration

4. At the 11th meeting, the UNCITRAL text was adopted.

ARTICLE 20 [became CISG article 22 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 20 [became CISG article 22 ]

"An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. No amendments were submitted to this article.

C. Proceedings in the First Committee

(i) Meetings

3. The First Committee considered article 20 [became CISG article 22 ] at its 11th meeting on 18 March 1980.

(ii) Consideration

4. At the 11th meeting, the UNCITRAL text was adopted.

ARTICLE 21 [became CISG article 23 ]

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 21

"A contract is concluded at the moment when an acceptance of an offer is effective in accordance with the provisions of this Convention."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 21 [became CISG article 23 ] by Italy (A/CONF.97/C.1/L.70), Czechoslovakia (A/CONF.97/C.1/L.78), Belgium (A/CONF.97/C.1/L.89) and Canada (A/CONF.97/C.1/L.112).

3. These amendments were to the following effect:

(i) Italy (A/CONF.97/C.1/L.70):

Revise article 21 [became CISG article 23 ] to read as follows:

"A contract is concluded at the moment when and in the place where an acceptance of an offer is effective in accordance with the provisions of the Convention."

[Rejected: see Consideration, 5, below.]

(ii) Belgium (A/CONF.97/C.1/L.89):

First (existing) paragraph (for the French text only):

Remplacer "conclu" par "formé" dans le texte français du paragraphe (1).

Additional paragraph (2).

(iii) Czechoslovakia (A/CONF.97/C.1/L.89):

Add a new paragraph (2):

"Where an offer requires to be accepted in writing, the acceptance is effective only if the written form is observed."

[Rejected: see Consideration, 5, below.]

(iv) Belgium (A/CONF.97/C.1 /L.89):

Add a new paragraph (2) to read as follows:

"Nevertheless, when the contract depends on the granting of public or administrative authorizations, the contract is concluded only from the moment these authorizations have been granted."

[Rejected: see Consideration, 5, below.]

(v) Canada (A/CONF.97/C.1/L.112):

Add a new paragraph (2) to read as follows:

"A contract may be concluded even though the moment of its conclusion may be undetermined."

[Rejected: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 21 [became CISG article 23 ] at its 11th meeting on 18 March 1980.

(ii) Consideration

5. At the 11th meeting, the amendments by Italy (A/CONF.97/C.1/L.70), Czechoslovakia (A/CONF.97/C.1/L.78) and Canada (A/CONF.97/C.1/L.112) were rejected. The amendment by Belgium (A/CONF.97/C.1/L.89) to add a new paragraph (2) was also rejected. The amendment by Belgium (A/CONF.97/C.1/L.89 relating to the French text only) was referred to the Drafting Committee, and the UNCITRAL text adopted.

ARTICLE 22 [became CISG article 24 ]

A. UNCITRAL text

I. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 22 [became CISG article 24 ]

"For the purposes of Part II of this Convention an offer, declaration of acceptance or any other indication of intention "reaches" the adressee when it is made orally to him or delivered by any other means to him, his place of business or mailing address, or, if he does not have a place of business or mailing address, to his habitual residence."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. No amendments were submitted to this article.

C. Proceedings in the First Committee

(i) Meetings

3. The First Committee considered article [22] [became CISG article 24 ] at its 11th meeting on 18 March 1980.

(ii) Consideration

4. At the 11th meeting, the UNCITRAL text was adopted.