PART II. FORMATION OF THE CONTRACT
1. Part II of the Sales Convention sets out rules for the
formation of an international sales contract. Under these rules, a contract is
concluded when an acceptance of an offer becomes effective. CISG art. 23. The
first four articles of Part II (arts. 14-17) deal with the offer, while the
following five articles (arts. 18-22) deal with the acceptance. The final two
articles (arts. 23-24) address the time when a contract is concluded and when a communication "reaches" the addressee, respectively. One court has described
these provisions as embodying "a liberal approach to contract formation and
interpretation, and a strong preference for enforcing obligations and
representations customarily relied upon by others in the industry".[1]
2. A number of decisions have applied the offer-acceptance paradigm of Part II to proposals to modify a sales contract (art. 29)[2] or to proposals to terminate the contract [3] Several
decisions have distinguished between the conclusion of the sales contract and
an agreement to arbitrate disputes arising under that contract.[4]
Permitted reservations by Contracting States
3. A Contracting State may declare that it is not bound by Part
II of the Sales Convention. CISG art. 92. Denmark, Finland, Iceland, Norway and
Sweden have made this declaration. A
majority of decisions apply the forum's rules of private international law to
determine whether the parties have concluded a contract. The relevant national
law may be either domestic contract law (which will be the case if the
applicable national law is that of a declaring State)[5] or the
Convention (which will be the case if the applicable national law is that of a
Contracting State).[6]
Several decisions do not go through a private international law analysis. One
decision expressly rejects a private international law analysis and instead
applies the principles underlying Part II of the Convention.[7] Several decisions apply Part II, without analysis, to a contract between a party with a place of business in a Contracting State that has made a declaration and one that has a place of business in a Contracting State that has not done so.[8] In the absence of a dispute about whether a contract had been concluded, one court declined to analyze the effect of article 92.[9]
4. Two or more Contracting States that have the same or
closely-related legal rules on the formation of a sales contract may declare
that the Convention is not to apply to the formation of sales contracts where
the parties have their places of business in these States. CISG art. 94(1). A
Contracting State may also make such a declaration if it has the same or
closely-related legal rules as those of a non-Contracting State. CISG art.
94(2). Such a non-Contracting State may, when it becomes a Contracting State,
declare that the Convention shall continue to be inapplicable to the formation
of sales contracts with persons in the earlier-declaring Contracting State.
CISG art. 94(3). Denmark, Finland, Norway and Sweden made declarations with
respect to each other and also with Iceland. When Iceland became a Contracting
State it declared that it would continue this arrangement.
Exclusivity of Part II
5. Part II sets out rules for the conclusion of a contract.
Part II does not state that compliance with its provisions is the exclusive way
to conclude an enforceable contract governed by the Sales Convention. Article
55 in Part III of the Convention recognizes that a contract may be validly
concluded even though it does not expressly or implicitly fix or make provision
for determining the price. Several cases have examined the relation of article
55 to the requirement in article 14 that a proposal to conclude a contract must
expressly or implicitly fix or make provision for determining the price. See
Commentary on articles 14 and 55.
6. The parties' conduct may establish that they intended a
mutually-binding arrangement even if Part II does not govern. One court,
recognizing that Finland had made an article 92 declaration, nevertheless
applied the principles underlying the Convention rather than national contract
law and found that the conduct of a Finnish seller and a German buyer evidenced
an enforceable contract.[10]
7. Several decisions have recognized that one party's promise
may be enforced under the applicable national law doctrine of promissory
estoppel. One court found that a supplier would be bound by its promise to
supply raw materials when in reliance on this promise the promisee sought and
received administrative approval to manufacture generic drugs.[11] Another court considered a similar claim but concluded that the party seeking to enforce a promise had not established its case.[12]
Validity of contract; formal requirements
8. Part II governs the formation of the contract of sale but,
except as otherwise expressly provided by the Convention, is not concerned with
the validity of the contract or any of its provisions or of any usage. CISG
art. 4(a). Consequently, domestic law applicable by virtue of the rules of
private international law will govern issues of validity. See also Commentary
on article 4.
9. The Convention expressly provides that a contract of sale
need not be concluded in writing and is not subject to any other requirement as
to form. CISG art. 11. A Contracting State may declare that this rule does not
apply where any party has his place of business in that State. CISG arts. 12,
96. See also Commentary on articles 11 and 12.
10. Part II is silent on the need for "consideration" or a
"causa". One case found, applying domestic law under article 4(a) of the
Convention, that a buyer seeking to enforce a contract had alleged sufficient
facts to support a finding that there was "consideration" for an alleged
contract.[13]
Incorporating standard terms
11. The Convention does not include special rules addressing the
legal issues raised by the use of standard contract terms prepared in advance
for general and repeated use.[14]
Some Contracting States have adopted special legal rules on the enforceability
of standard terms.[15]
Notwithstanding these special rules, a majority of courts apply the provisions
of Part II of the Convention and its rules of interpretation in article 8 to
determine whether the parties have agreed to incorporate standard terms into
their contract.[16]
Several of these decisions expressly conclude that the Convention displaces
recourse to national law on the issue of whether the parties have agreed to
incorporate standard terms into their contract.[17]
Nevertheless, several courts have applied the special national legal rules to
determine the enforceability of standard terms in contracts otherwise governed
by the Convention,[18]
while several others have noted that the standard terms would be enforceable
under either national law or the Convention.[19] Several
decisions recognize, however, that the Convention does not govern the
substantive validity of a particular standard term—a matter left to applicable
national law by virtue of article 4(a).[20]
12. Several decisions rely on the Convention's rules on
interpretation to require the user of standard terms to send a copy of the
terms to the other party or otherwise make them reasonably available.[21]
One decision expressly rejects the proposal that a party has an obligation to
search out standard terms referred to by the other party on the grounds that to
do so would contradict the principle of good faith in international trade and
the parties' general obligations to cooperate and to share information.[22]
Another decision relies on article 24 to conclude that standard terms do not
"reach" the addressee unless in a
language agreed to by the parties, used by the parties in their prior dealings,
or customary in the trade.[23]
Several other decisions give no effect to standard terms when they are not
translated into the language of the other party.[24] Another
decision refers to the "general principle" that ambiguities in the standard
terms are to be interpreted against the party relying upon them.[25]
Commercial letters of confirmation
13. In a few Contracting States there is a recognized usage of
trade that gives effect to a letter of confirmation sent by a merchant to
another merchant notwithstanding the recipient's silence. The commercial letter
of confirmation may conclude the contract or, if the contract had already been
concluded, establish the terms of the contract in the absence of intentional
misstatement by the sender or prompt objection to its terms. Courts have
disagreed about the effect to be given to these usages when the transaction is
governed by the Convention. Several decisions have refused to give effect to a
local trade usage that would give effect to the letter of confirmation because
the usage was not international.[26] However, one court found, without analysis of the scope of the trade usage, that the recipient was bound,[27] and another court gave effect, under both paragraphs (1) and (2) of article 9, to the usage when the seller and buyer each had its place of business in a
jurisdiction that recognized such a usage.[28] Another
court applied the formation provisions to find that the recipient of the letter
of confirmation had accepted its terms by accepting the goods.[29] Yet another court concluded that the Convention was silent on the effect of a confirmation letter that incorporated standard terms and therefore the court applied domestic law to determine whether the standard terms were applicable.[30] Even if a letter of confirmation is not given full effect it may be relevant for the evaluation of evidence of the parties' intent.[31]
Interpretation of statements or conduct
14. person may make a proposal for concluding a contract or may
accept such a proposal by a statement or by conduct. CISG arts. 14(1), 18(1).
Numerous cases apply the rules of article 8 to the interpretation of a party's
statements or other conduct before the conclusion of a contract.[32]
15. Several courts have had to identify the party proposing to conclude a contract governed by the Convention. They have usually done so by
interpreting the statements or conduct of the parties in accordance with
article 8 of the Convention.[33] The issue may also arise when an agent acts for a principal.[34]
Whether a person is entitled to bring a legal action to enforce contractual
obligations is a distinct issue.[35]
| 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) ThA 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.
|
DIGEST OF ARTICLE 14 CASE LAW
1. Article 14 sets out the conditions on which a proposal to
conclude a contract is an offer that, if accepted by the addressee, will lead
to the conclusion of a contract under the Convention. This article has been
applied to determine whether a statement or other conduct rejecting an offer
(see art. 19(1)) constitutes a counter-offer.[36] The
principles set out in this article — the person making the proposal must intend
to be bound; a proposal must be sufficiently definite — have been applied,
together with those in other articles of Part II, notwithstanding that Part II
was not applicable by virtue of a declaration under article 92.[37]
For discussion of whether Part II of the Convention provides the exclusive way
to conclude a contract governed by the Convention, see the Introduction to Part
II.
2. The identity of the person making a proposal or of the
person to which the proposal is made may be uncertain. Decisions have applied article 14 and the rules of interpretation in article 8 to this issue.[38]
Addressees of proposal
3. The first sentence of paragraph (1) provides that proposals
are to be addressed to one or more specific persons. Under the applicable law of agency, the maker of an offer addressed to an agent may be bound by the acceptance of the principal.[39] One decision states that article 14 (1) rather than the law of agency governs the issue of identifying whether a manufacturer or its distributor is party to the contract.[40]
4. Paragraph (2) provides for proposals other than ones
addressed to one or more specific persons. There are no reported decisions
applying paragraph (2).
Indication of intent to be bound by acceptance
5. The first sentence of paragraph (1) provides that a proposal
to conclude a contract must indicate the intention of the proponent to be bound
if the addressee accepts the proposal. The intent may be shown by
interpretation of a statement or act in accordance with paragraphs (1) or (2)
of article 8.[41]
By virtue of paragraph (3) of article 8, this intent may be established by all
the relevant circumstances, including statements or other conduct during
negotiations and the conduct of the parties after conclusion of the contract[42] A buyer was found to have indicated its intent to be bound when it sent the
seller an "order" that stated that "we order" and "immediate delivery".[43]
A communication in the English language sent by a French seller to a German
buyer was interpreted by the court as expressing the seller's intent to be
bound.[44]
Where both parties had signed an order indicating a computer programme and its
price, the buyer was unable to establish that the order merely indicated an
intention to indicate details of a contract to be concluded at a later time
rather than an intention to conclude the contract by the order.[45]
Another buyer's order specifying two sets of cutlery and the time for delivery
was likewise interpreted as indicating the intent to be bound in case of
acceptance notwithstanding buyer's argument that it had merely proposed to
conclude future purchases.[46]
Definiteness of proposal
6. To be deemed an offer, a proposal to conclude a contract not
only must indicate an intent to be bound by an acceptance but also must be
sufficiently definite.[47]
The second sentence of paragraph (1) provides that 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. Practices established
between the parties may supply the details of quality, quantity and price left
unspecified in a proposal to conclude a contract.[48] Decisions
have applied the rules of interpretation in article 8 to determine whether a
communication or act is sufficiently definite. One court has concluded that, if
the intent to be bound by an acceptance is established, a proposal is sufficiently
definite notwithstanding the failure to specify the price.[49]
7. Article 14 does not require that the proposal include all
the terms of the proposed contract.[50] If, for
example, the parties have not agreed on the place of delivery [51] or the mode of transportation [52] the Convention may fill the gap.
Indication of the goods
8. To be sufficiently definite under the second sentence of
paragraph (1) a proposal must indicate the goods. There is no express
requirement that the proposal indicate the quality of the goods. One court
found that a proposal to buy "chinchilla pelts of middle or better quality" was
sufficiently definite because a reasonable person in the same circumstances as
the recipient of the proposal could perceive the description to be sufficiently definite.[53] Another court assumed that an offer to purchase monoammoniumphosphate with the
specification "P 205 52% +/- 1%, min 51%" was a sufficiently definite
indication of the quality of the goods ordered.[54] If, however, the parties are unable to agree on the quality of the goods ordered there is no contract.[55]
Fixing or determining the quantity
9. To be sufficiently definite under the second sentence of
paragraph (1) a proposal must expressly or implicitly fix or make provision for
determining the quantity. A proposal was found to be sufficiently definite in
the following cases: a proposal that refers only to "700 to 800 tons" of
natural gas because usage in the natural gas trade so provides;[56]
"a greater number of Chinchilla furs" because the buyer accepted the furs
tendered without objection;[57]
"three truck loads of eggs" because the other party reasonably understood or
ought to have understood that the trucks should be filled to their full
capacity;[58]
"20 truck loads of tinned tomato concentrate" because the parties understood
the meaning of these terms and their understanding was consistent with the
understanding of the trade;[59] "10,000 tons +/- 5%".[60]
A court has found that a buyer's proposal which specified no specific quantity
was sufficiently definite because under an alleged customary usage the proposal
would be construed as an offer to purchase the buyer's needs from the offeree.[61]
Another court found that the seller's delivery of 2,700 pairs of shoes in
response to the buyer's order of 3,400 pairs was a counter-offer accepted by
the buyer when it took delivery and the contract was therefore concluded for
only 2,700 pairs.[62]
10. A distribution agreement specifying terms on which the parties would do business and obliging the buyer to order a specified amount was found not sufficiently definite because it did not state a specific quantity.[63]
Fixing or determining the price
11. To be sufficiently definite under the second sentence of
paragraph (1) a proposal must expressly or implicitly fix or make provision for
determining not only the quantity but also the price. A proposal was found to
be sufficiently definite in the following cases: a proposal to sell pelts of
varying quality "at a price between 35 and 65 German Marks for furs of medium
and superior quality" because the price could be calculated by multiplying the
quantity of each quality by the relevant price;[64] the price for similar goods in a previous contract between the parties supplied the price for a transaction in which there was no specific agreement on price because the parties had established a course of dealing;[65] a proposal that the prices are to be adjusted to reflect market prices;[66] agreement
on a provisional price to be followed by the definitive price after the buyer resold the goods to exclusive final buyer because such an arrangement is regularly observed in the trade.[67]
12. The following proposals were found to be insufficiently definite: a proposal that incorporated several alternatives but did not indicate a proposed price for some elements of the alternative proposals;[68] an agreement that the parties would agree on the price of additional goods ten days before the new year.[69]
13. One court has concluded that if the intent to be bound by an acceptance is established a proposal is sufficiently definite notwithstanding the failure to specify the price.[70]
Relevance of price formula in article 55
14. Article 14 states that a proposal to conclude a contract issufficiently definite if it "fixes or makes provision for determining" the price. Article 55 provides a price formula. The price supplied by article 55 is "the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned."
15. Most decisions have declined to apply article 55.[71] Several have concluded that article 55 was not applicable because the parties had expressly or implicitly fixed or made provision for determining the price, thereby satisfying the definiteness requirement set out in article 14(1).[72] One tribunal found that where the parties had agreed to fix the price at a later time but had not done so, the proposal was not sufficiently definite under article 14(1) and that article 55 was not applicable because of the parties' agreement to fix the price at a later time.[73] In another case where the proposal to conclude a contract failed to fix the price, the court declined to apply article 55 to fix the price because there was no market price for the airplane engines that the parties were negotiating about.[74] Another court also found that, to the extent the price formula of article 55 might be applicable, the parties had derogated from that formula by their agreement.[75]
16. One court has looked to article 55 when it enforced the parties' agreement notwithstanding that they had not fixed the price in their original negotiations. In that case, the court stated that the price set out in a corrected invoice issued by the seller at the request of the buyer and to which the buyer did not object was to be interpreted as the price charged under comparable circumstances in the trade concerned as provided in the article 55 formula.[76]
FOOTNOTES
* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.
[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]
1. [UNITED STATES Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc. Federal District Court [New York] 10 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020510u1.html>].
2. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (see full text of the decision);
CLOUT case No. 347 [GERMANY Oberlandesgericht [Court] Dresden 9 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980709g1.html>];
CLOUT case No. 193 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 July 1996, available online at <http://cisgw3.law.pace.edu/cases/960710s1.html>];
CLOUT case No. 133 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g1.html>] (see full text of the decision);
CLOUT case No. 203 [FRANCE Cour d'appel [Appellate Court] Paris 13 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951213f1.html>].
3. CLOUT case No. 120 [GERMANY Oberlandesgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>];
[CHINA CIETAC Arbitration Award award No. 75 of 1 April 1993; available at <http://cisgw3.law.pace.edu/cases/930401c1.html>].
4. [SPAIN Tribunal Supremo [Supreme Court] 26 May 1998, available online at <http://cisgw3.law.pace.edu/cases/980526s4.html>] (conclusion of sales contract established but not agreement to arbitrate);
[SPAIN Tribunal Supremo [Supreme Court] 17 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980217s4.html>] (conclusion of sales contract established under Sales Convention but agreement to arbitrate not established under 1958 New York Convention).
5. [FINLAND [Appellate Court] Turku Hovioikeus 12 April 2002, available online at <http://cisgw3.law.pace.edu/cases/020412f5.html>]; (transaction between Finnish seller and German buyer; Finnish law applicable);
CLOUT case No. 143 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521h1.html>] (transaction between Swedish seller and Hungarian buyer; Swedish law applicable);
CLOUT case No. 228 [GERMANY Oberlandesgericht [Appellate Court] Rostock 27 July 1995, available online at <http://cisgw3.law.pace.edu/cases/950727g1.html>] (transaction between Danish seller and German buyers; Danish law applicable).
See also CLOUT case No. 419 [UNITED STATES Mitchell Aircraft Spares v. European Aircraft Service Federal District Court [Illinois] 27 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981027u1.html>] (transaction between Swedish seller and US buyer; although US state law would apply to contract formation, the issue before the court was whether domestic parol evidence rule excluded testimony and art. 8(3) -- in Part I -- preempted that rule).
6. CLOUT case No. 309 [DENMARK Østre Landsret [Eastern Appellate Court] 23 April 1998, available online at <http://cisgw3.law.pace.edu/cases/980423d1.html>] (transaction between Danish
seller and French buyer; French law applicable);
CLOUT case No. 301 [ICC Court of Arbitration, case No. 7585 of 1992, available online at <http://cisgw3.law.pace.edu/cases/927585i1.html>] (transaction
between Italian seller and Finnish buyer; Italian law applicable).
7. CLOUT case No. 134 [GERMANY Oberlandesgericht [Appellate Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>] (contract between Finnish seller and German buyer).
8. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (contract between Danish seller and German buyer) (see full text of the decision);
[CHINA Skandinaviska v. Hunan Co. [Chansha Intermediate People's Court] 18 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950918c1.html>] (negotiations between Chinese seller and Swedish buyer);
CLOUT case No. 121 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 4 March 1994, available online at <http://cisgw3.law.pace.edu/cases/940304g1.html>] (negotiations between German seller and Swedish buyer).
9. CLOUT case No. 201 [SWITZERLAND Richteramt [District Court] Laufen Berne 7 May 1993, available online at <http://cisgw3.law.pace.edu/cases/930507s1.html>] (contract between Finnish seller and German buyer) (see full text of the decision).
See also [DENMARK Højesteret [Supreme Court] 15 February 2001, available online at <http://cisgw3.law.pace.edu/cases/010215d1.html>] (transaction between Italian seller and Danish buyer; issue of whether court had jurisdiction resolved by reference to art. 31).
10. CLOUT case No. 134 [GERMANY Oberlandesgericht [Appellate Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>].
11. [UNITED STATES Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc. Federal District Court [New York] 21 August 2002, available online at <http://cisgw3.law.pace.edu/cases/020821u1.html>] (accepting that claim stated an enforceable cause of action for promissory estoppel when it alleged breach of "(1) a clear and definite promise, (2) the promise is made with the expectation that the promisee will rely on it, (3) the promisee in fact reasonably relied on the promise, and (4) the promisee suffered a definite and substantial detriment as a result of the reliance").
12. CLOUT case No. 173 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 17 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970617h1.html>] (considering and rejecting a claim that there had been a breach of promise that would be enforceable if the promise reasonably induced the other party to change its position in reliance on the promise).
13. [UNITED STATES Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc. Federal District Court [New York] 10 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020510u1.html>] (quoting definition of consideration as "bargained-for exchange of promises or performance").
14. For a definition of "standard terms" see art. 2.19(2) of the UNIDROIT Principles of International Commercial Contracts (1994).
15. See, e.g., the German Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen (AGBG) [Unfair Contract Terms Act].
16. [GERMANY Bundesgerichtshof [Federal Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>]
;
CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (standard terms in purported acceptance);
[NETHERLANDS Arrondissementsrechtbank [District Court] 's-Hertogenbosch 2 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981002n1.html>] (in ongoing relationship buyer not bound by seller's amended general conditions because seller failed to inform buyer of amendment);
CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino Federal Appellate Court [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (standard terms on back of seller's form not enforceable if both parties know buyer did not intend to incorporate them in contract) (see full text of the decision);
CLOUT case No. 272 [GERMANY Oberlandesgericht [Appellate Court] Zweibrücken 31 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980331g1.html>] (applying art. 8 to determine whether standard terms incorporated in contract);
CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Cour] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>] (buyer, by performing contract, accepted seller's standard terms that modified buyer's offer) (see full text of the decision);
CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html>];
CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (buyer did not agree to 'framework agreement' drafted by seller to govern subsequent sales);
CLOUT case No. 203 [FRANCE Cour d'appel [Appellate Court] Paris 13 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951213f1.html>] (standard term on back of form not binding on recipient);
[BELGIUM Tribunal Commercial [District Court] Nivelles 19 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950919b1.html>] (buyer should have been aware that seller's offers incorporated standard terms);
[ARGENTINA Cámara Nacional de los Apelaciones en lo Comercial [Appellate Court] 14 October 1993, available online at <http://cisgw3.law.pace.edu/cases/931014a1.html>] (standard terms on back of "pro forma" invoice accepted by other party when recipient objected to one part of invoice but not to standard terms).
See also [BELGIUM Rechtbank [District Court] Hasselt 18 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951018b1.html>] (seller's standard terms in invoice sent with goods a unilateral act to which buyer had not consented). For analysis of the effect of conflicting terms when each party uses standard terms (the so-called "battle of the forms"), see the Commentary to article 19.
17. [GERMANY Bundesgerichtshof [Federal Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>];
CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html>].
18. CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (applying German law
as the law applicable by virtue of the forum's rules of private international
law) (see full text of the decision);
[GERMANY Landgericht [District Court ] Duisburg 17 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960417g1.html>] (applying Italian law as the law applicable by virtue of the
forum's private international law rules);
[GERMANY Landgericht [District Court] München 29 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950529g1.html>] (applying German law as the law applicable by virtue of the forum's rules of private international law);
[BELGIUM Rechtbank [District Court] Hasselt 24 January 1995, available online at <http://cisgw3.law.pace.edu/cases/950124b1.html>] (applying German law as the law applicable by virtue of the forum's private international law rules).
19. CLOUT case No. 361 [GERMANY Oberlandesgericht [Appellate Court] Braunschweig 28 October 1999, available online at <http://cisgw3.law.pace.edu/cases/991028g1.html>] (standard
terms enforceable under both applicable domestic law and the Convention) (see
full text of the decision);
[NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 24 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960424n1.html>] (standard terms enforceable under both applicable domestic law and
the Convention).
20. [AUSTRIA Oberster Gerichtshof [Supreme Court] 7 September 2000, available online at <http://cisgw3.law.pace.edu/cases/000907a3.html>] (validity of standard terms
determined by national law subject to condition that any derogation from
Convention's fundamental principles ineffective even if valid under applicable
national law);
CLOUT case No. 272 [GERMANY Oberlandesgericht [Appellate Court] Zweibrücken 31 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980331g1.html>] (national law, rather than Convention, determines validity of exemption
clause in standard terms);
CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html>] (national law governs validity of standard term limiting liability);
[GERMANY Amtsgericht [Lower Court] Nordhorn 14 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940614g1.html>] (standard terms
on back of form incorporated in contract but validity of terms to be determined under domestic law).
See also CLOUT case No. 230 [GERMANY Oberlandesgericht [Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (citing both art. 4 and art. 14 ff., court leaves open
issue of whether standard terms were enforceable).
21. [GERMANY Bundesgerichtshof [Federal Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>];
[NETHERLANDS Gerechtshof [Appellate Court] Arnhem 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427n1.html>] (deposit of standard terms in Dutch court did not bind non-Dutch party but standard terms printed in Dutch on back of invoice are binding);
[NETHERLANDS Arrondissementsrechtbank [District Court] 's-Hertogenbosch 2 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981002n1.html>] (if numerous prior sales between parties have been subject to the
general conditions of one party and that party amends those general conditions,
that party must inform the other party of the changes).
22. Neue Juristische Wochenschrift [GERMANY Bundesgerichtshof [Federal Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>].
23. CLOUT case No. 132 [GERMANY Oberlandesgericht [Appellate Court ] Hamm 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g3.html>] (discussion of "language risk" in light of art. 8).
24. CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html>] (in transaction between German seller and Italian buyer seller's standard terms in German language not incorporated in contract and validity of those in Italian language determined by German law as the as the law applicable by virtue of the forum's private international law rules);
[GERMANY Amtsgericht [Lower Court] Kehl 6 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951006g1.html>] (standard terms in German language only sent by a German buyer to an Italian seller).
25. CLOUT case No. 165 [GERMANY Oberlandesgericht [Appellate Court] Oldenburg 1 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950201g1.html>] (see full text of the decision).
26. CLOUT case No. 347 [GERMANY Oberlandesgericht [Appellate Court] Dresden 9 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980709g1.html>];
CLOUT case No. 276 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 5 July 1995, available online at <http://cisgw3.law.pace.edu/cases/950705g1.html>].
See also [GERMANY Landgericht [District Court] Duisburg 17 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960417g1.html>] (doubts existence of international usage recognizing incorporation of standard terms into contract by letter of confirmation); Opinion of Advocate General Tesauro, EC Reports, 1997, I-911 ff. (adopting by analogy article 9 (2)'s standard for an 'international usage').
27. [GERMANY Oberlandesgericht [Court] Saarbrücken 14 February 2001, available online at <http://cisgw3.law.pace.edu/cases/010214g1.html>].
28. CLOUT case No. 95 [SWITZERLAND Zivilgericht [Civil Court] Basel 21 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921221s1.html>].
29. CLOUT case No. 292 [GERMANY Oberlandesgericht [Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (citing art. 18(1)) (see full text of the decision).
30. [NETHERLANDS Arrondissemenetsrechttbank [District Court] Zutphen 29 May 1997,available online at <http://cisgw3.law.pace.edu/cases/970529n1.html>]. See also
[BELGIUM Rechtbank [District Court ] Hasselt 24 January 1995, available online at <http://cisgw3.law.pace.edu/cases/950124b1.html>] (German law applicable to issue of whether standard terms referred to in letter of confirmation are effective).
31. CLOUT case No. 276 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 5 July 1995, available online at <http://cisgw3.law.pace.edu/cases/950705g1.html>].
32. See, e.g., CLOUT case No. 417 [UNITED STATES Magellan International v. Salzgitter Handel Federal District Court [Illinois] 7 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991207u1.html>] (art. 8) (see full text of the decision);
CLOUT case No. 306 [AUSTRIA Oberster Gerichtshof [Supreme Court] 11 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990311a3.html>] (citing art. 8 (1));
CLOUT case No. 413 [UNITED STATES Calzaturificio Claudia v. Olivieri Footwear Federal District Court [New York] 6 April 1998, available online at <http://cisgw3.law.pace.edu/cases/980406u1.html>] (art. 8(3)) (see full text of the decision);
[NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>] (arts. 8(1), (2));
CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>] (art. 8 (2));
[GERMANY Landgericht [District Court] Oldenburg 28 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960228g1.html>] (art. 8(2));
CLOUT case No. 334 [SWITZERLAND Obergericht [Court] Thurgau 19 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951219s1.html>] (Art. 8 (1), (2) & (3));
CLOUT case No. 308 [AUSTRALIA Roder v. Rosedown [ Federal Court] Adelaide 28 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950428a2.html>] (Arts. 8 (1), (2)) (see full text of the decision);
CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>] (art. 8 (2), (3));
CLOUT case No. 23 [UNITED STATES Filanto v. Chilewich Federal District Court [New York] 14 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920414u1.html>] (art. 8 (3));
CLOUT case No. 227 [GERMANY Oberlandesgericht [Appellate Court] Hamm 22 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920922g1.html>] (Art. 8 (2)).
33. [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>] (citing art. 8, court states that invoice intended by sender to be offer on its behalf rather than on behalf of its parent company with whom recipient had been dealing did not bind the recipient who was unaware of this intent and it was not established that a reasonable person in position of recipient would so understand the communication);
[GERMANY Oberlandesgericht [Appellate Court ] Stuttgart 28 February 2000, available online at <http://cisgw3.law.pace.edu/cases/000228g1.html>] (citing art. 8 (1) & (3), court states that negotiations and subsequent conduct of the parties indicated that buyer intended to conclude the contract with foreign company rather than local company with some same Board members);
[NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>] (citing arts. 8 (1) & (2)), court concludes no contract had been concluded when a person, intending to make an offer, made a payment to a seller who did not know and could not have been aware that the payor was making a payment on its own behalf rather than on behalf of a buyer with whom the seller had ongoing business relations and reasonable person in same circumstances would not so understand communication). See also [MEXICO Compromex Arbitration award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>] (without express reference to art. 8, commission refers to surrounding circumstances to identify seller);
CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>] (citing art. 14 (1), court concludes that buyer's unsigned fax to seller clearly indicated an intent to purchase the equipment and that seller thought buyer rather than sister company was buyer);
CLOUT case No. 276 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 5 July 1995, available online at <http://cisgw3.law.pace.edu/cases/950705g1.html>] (circumstances establish defendant and not unnamed third person was party to contract) (see full text of the decision);
[GERMANY Landgericht [District Court] Memmingen 1 December 1993, available online at <http://cisgw3.law.pace.edu/cases/931201g2.html>] (citing art. 11, court applies forum's rule on proof as to which company seller had contracted with);
CLOUT case No. 95 [SWITZERLAND Zivilgericht [Civil Court] Basel 21 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921221s1.html>] (defendant bound even if she was subject to control of another firm) (see full text of the decision).
34. CLOUT case No. 239 [AUSTRIA Oberster Gerichtshof [Supreme Court] 18 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970618a3.html>] (remand to determine whether purported buyer was an agent);
CLOUT case No. 416 [UNITED STATES KSTP-FM v. Specialized Communications State District Court [Minnesota] 9 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990309u1.html>] (finding from documents and circumstances that defendant was a seller rather than an agent); CLOUT case No. 334 [SWITZERLAND Obergericht [Court] Thurgau 19 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951219s1.html>] (citing art. 8, court concludes manufacturer rather than its distributor was party to contract);
CLOUT case No. 5 [GERMANY Landgericht [District Court ] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>] (citing art. 8 (1), court states that seller did not know and could not have been aware of buyer's intent to refer to "AMG GmbH" when buyer referred to "AMG Import Export", a non-existent company; agent bound under applicable law of agency).
35. See, e.g., CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html>] (lessee, to whom the buyer/lessor assigned its rights as buyer, avoided contract);
CLOUT case No. 334 [SWITZERLAND Obergericht [Court] Thurgau 19 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951219s1.html>] (although manufacturer rather than its distributor was original party to
contract, distributor could enforce the contract because manufacturer had
assigned its claim for breach to distributor);
CLOUT case No. 132 [GERMANY Oberlandesgericht [Appellate Court ] Hamm 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g3.html>] (assignee enforces seller's claim).
36. CLOUT case No. 121 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 4 March 1994, available online at <http://cisgw3.law.pace.edu/cases/940304g1.html>] (a buyer's purported
acceptance that included both screws for which the seller had stated the price
and additional screws for which the seller had not stated the price was a
counter-proposal that was not sufficiently definite because the price of the
latter screws were not fixed or determinable).
See also CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>] (stating that a counter-offer must
satisfy the conditions of article 14).
37. CLOUT case No. 134 [GERMANY Oberlandesgericht [Appellate Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>] (applying the
general principles of Part II rather than the national law applicable by virtue
of private international law to transaction between Finnish seller and German
buyer).
38. [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>];
[GERMANY Oberlandesgericht [Appellate Court ] Stuttgart 28 February 2000, available online at <http://cisgw3.law.pace.edu/cases/000228g1.html>];
[NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>];
CLOUT case No. 334 [SWITZERLAND Obergericht [Court] Thurgau 19 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951219s1.html>];
CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>];
CLOUT case No. 5 [GERMANY Landgericht [District Court ] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>]. See Commentary in introduction to Part II.
39. CLOUT case No. 239 [AUSTRIA Oberster Gerichtshof [Supreme Court] 18 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970618a3.html>] (if offeror knew that
addressee was acting as agent, then offeror should expect proposal to be
transmitted to the principal; if offeror did not know or was unaware that
addressee was an agent, the offeror was not bound by principal's acceptance;
case remanded to determine whether the addressee was agent and whether offeror
knew of this).
40. CLOUT case No. 334 [SWITZERLAND Obergericht [Court] Thurgau 19 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951219s1.html>] (interpreting the statements and acts of the parties in accordance with art. 8,
manufacturer rather than its dealer was party to contract; manufacturer had,
however, assigned its claim for breach to dealer).
41. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (see full text of the decision).
42. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (stressing the
parties' conduct subsequent to conclusion of the contract).
43. CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>] (see full text of the decision).
44. [GERMANY Oberlandesgericht [Appellate Court] Hamburg 4 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970704g1.html>] ("We can only proposed you"; "First truck could be delivered").
45. CLOUT case No. 131 [GERMANY Landgericht [District Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g4.html>].
46. CLOUT case No. 217 [SWITZERLAND Handelsgreicht [Commercial Court] Aargau 26 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970926s1.html>].
47. CLOUT case No. 417 [UNITED STATES Magellan International v. Salzgitter Handel Federal District Court [Illinois] 7 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991207u1.html>] (conditions satisfied).
48. CLOUT case No. 52 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 24 March 1992, available online at <http://cisgw3.law.pace.edu/cases/920324h1.html>]
(citing art. 9(1), court concludes that prior sales transactions between the parties supply unstated details in telephone order).
49. CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>] (fax "ordering" software devices sufficiently definite notwithstanding failure to mention price).
50. See also CLOUT case No. 131 [GERMANY Landgericht [District Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g4.html>] (contract for purchase of software enforceable even if parties intended further agreement with respect to use of software).
51. CLOUT case No. 360 [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>] (art. 31(a) applies when buyer unable to establish parties agreed on different place).
52. CLOUT case No. 261 [SWITZERLAND Berzirksgericht [District Court ] Sanne 20 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970220s1.html>] (seller authorized to arrange transportation under art. 32(2) when buyer unable to establish parties agreed on transport by truck).
53. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].
54. CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>] (remanding to lower court, however, to determine whether an apparently contradictory response was sufficiently definite).
55. CLOUT case No. 135 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 31 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950331g1.html>] (no agreement on quality of test tubes).
56. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision).
57. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>] (citing art. 8(2), (3)) (see full text of the decision).
58. [GERMANY Landgericht [District Court] Oldenburg 28 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960228g1.html>] (citing art. 8(2)).
59. [GERMANY Oberlandesgericht [Appellate Court] Hamburg 4 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970704g1.html>].
60. CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>] (remanding to lower court to determine whether other elements of acceptance were sufficiently definite).
61. [UNITED STATES Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc. Federal District Court [New York] 10 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020510u1.html>].
62. CLOUT case No. 291 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 23 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950523g1.html>].
63. CLOUT case No. 187 [UNITED STATES Helen Kaminski v. Marketing Australian Products Federal District Court [New York] 21 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970721u1.html>] (see full text of the decision).
64. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>].
65. CLOUT case No. 52 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 24 March 1992, available online at <http://cisgw3.law.pace.edu/cases/920324h1.html>] (citing art. 9(1)).
66. CLOUT case No. 155 [FRANCE Cour de Cassation [Supreme Court] 4 January 1995, available online at <http://cisgw3.law.pace.edu/cases/950104f1.html>] affirming,
CLOUT case No. 158 [FRANCE Cour d'appel [Appellate Court] Paris 22 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920422f1.html>] ("à revoir en function de la baisse du marché").
67. [ICC Court of Arbitration case No. 8324 of 1995, available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>].
68. CLOUT case No. 53 [HUNGARY Legfelsóbb Biróság [Supreme Court] 25 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920925h1.html>] (see full text of the decision).
69. CLOUT case No. 139 [RUSSIA Arbitration Award case No. 309/1993 of 3 March 1995; available at <http://cisgw3.law.pace.edu/cases/950303r1.html>];
[RUSSIA Arbitration Award case No. 304/1993 of 3 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950303r1.html>] (citing art. 8).
70. CLOUT case No. 330 [SWITZERLAND Handelsgericht [Commercial Court] St. Gallen 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205s1.html>] (fax "ordering" software devices sufficiently definite notwithstanding failure to mention price).
71. [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 15 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960315g1.html>] (no citation to articles 14 or 55);
CLOUT case No. 410 [GERMANY Landgericht [Lower Court ] Alsfeld 12 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950512g1.html>] (court indicates that buyer did not allege circumstances from which a lower price could be established in accordance with article 55) (see full text of the decision).
72. CLOUT case No. 343 [GERMANY Landgericht [District Court] Darmstadt 9 May 2000, available online at <http://cisgw3.law.pace.edu/cases/000509g1.html>] (parties' agreement as to price enforceable even if price different from that of the market);
CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>] (transaction between a German seller and an Austrian buyer; parties had fixed the price in the contract concluded by offer and acceptance and therefore reversed an intermediate court's application of article 55).
73. CLOUT case No. 139 [RUSSIA Arbitration Award case No. 309/1993 of 3 March 1995; available at <http://cisgw3.law.pace.edu/cases/950303r1.html>] (transaction between a Ukrainian seller and an Austrian buyer; buyer may have separate claim for failure of the seller to propose a price during the designated time).
74. CLOUT case No. 53 [HUNGARY Legfelsóbb Biróság [Supreme Court] 25 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920925h1.html>] (transaction between a US
seller and a Hungarian buyer).
75. CLOUT case No. 151 [FRANCE Cour d'appel [Appellate Court] Grenoble 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426f1.html>] (buyer had accepted invoices with higher than market prices).
76. CLOUT case No. 215 [SWITZERLAND Bezirksgericht [District Court] St. Gallen 3 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970703s1.html>] (transaction between a Dutch seller and Swiss buyer; buyer's subsequent conduct interpreted as establishing buyer's intent to
conclude a contract).
ANNOTATED COMPARATIVES
- UNIDROIT Principles
- PECL comparative
Commentary on the manner in which the UNIDROIT Principles
may be used to interpret or supplement CISG Article 14
Jorge Oviedo Albán [*]
January 2005
- Introduction
- Definition of Offer
- Requirements
3.1. Sufficiently definite
3.2. Intention to be bound in case of acceptance
3.3. Communication to the offeree
- Invitation to make Offers
- Conclusions
1. Introduction
In Part II of the CISG, entitled Formation of the Contract, the Convention provides
the rules on contract formation, making reference to the model of offer and
acceptance, CISG Arts. 14 to 24. In the UNIDROIT Principles of International
Commercial Contracts, the counterpart provisions on formation, also adopting the
model of offer and acceptance, are located in Chapter 2, UP Arts. 2.1. to 2.22.
In both instruments the offer is defined and the relevant requirements are listed, which
will be analyzed in these remarks. In the Convention, the definition of and the
requirements of an offer are contemplated in Art. 14. In the UNIDROIT Principles, it
is Art. 2.2 that provides the definition of an offer.[1]
2. Definition of Offer
Article 14(1) of the CISG commences:
"A proposal for concluding a contract [...] constitutes an offer [...]"
Similarly, Article 2.2 of the UNIDROIT Principles provides a definition of offer, commencing:
"A proposal for concluding a contract constitutes an offer [...]"
The concept of "offer" is common in the two instruments, in the sense that both
instruments conceive it as the invitation by one of the parties to conclude a contract,
accompanied by other requirements to which we will refer in this comparative
analysis[2].
The following difference between the counterpart provisions must, however, be noted:
the regime of contract formation under the UNIDROIT Principles can be applicable to
any type of commercial contract, whereas the Convention's regime is, in principle,
limited to the formation of contracts of international sale of goods, i.e., only contracts
to which the Convention is directly applicable[3].
The international doctrine on contract formation has provided various analyses of what
constitutes an "offer", the characteristic element of which, as several authors highlight,
is the declared will of the offeror to be bound, in case of acceptance, to a contract[4].
3. Requirements
Both the Convention and the UNIDROIT Principles provide the following
requirements for an invitation to conclude a contract to produce a legal effect:
3.1. Sufficiently definite
The CISG regulates the matter in the following way in Art. 14 [emphasis added below]:
"(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."
Art. 14(1) provides two indispensable requirements for an offer to be sufficiently definite: that
the proposal (i) indicates or describes the goods, and (ii) expressly or implicitly fixes or makes
provision for determining the quantity and the price of the goods.
The first thing to be noted in that provision is that Art. 14 CISG does not expressly require that
the offeror identify precisely the goods that are to be the object of the contract; it will be
enough to merely indicate the nature and the characteristics that would allow the offeree to
identify the goods which are of interest to the offeror, as well as the quantity of the goods, or
parameters of an objective order to determine the quantity.
In determining the qualities and characteristic of the goods, except for any expressed
stipulation by the parties, important relevant matters to bear in mind are the concept of
reasonableness, the intention of the contracting parties and good faith - which are provided in
the content of Arts. 7(1), 8(1) and 8(2) of the Convention.
It is, furthermore, equally important to consider that as it is the obligation of the seller to deliver
"goods which are of the quantity, quality and description required by the contract and which
are contained or packaged in the manner required by the contract".[5] Those specified elements
(i.e., the quantity, quality, description and appropriate packaging of the goods) would perhaps
have to be indicated in the proposal made to the offeree, in order for him to indicate effectively
his assent to the offer.
The quantity of the goods, based on the inference drawn from the related provision in Art. 35
CISG, should be fixed in the proposal or, at least, the parties must have agreed on the manner
of determining the quantity according to objective parameters - that is a matter that has to be
resolved in the same sense in the offer. However, and in view of the prescription contained in
Art. 14 CISG, it would be advisable to include in the offer a certain quantity of the goods or to
fix maxima, or minima, of quantity in order to ensure the observance of the aforementioned
requirement.[6] There are several relevant factors that may end up determining the quantity of the
goods, present as much in the offer as at the moment of conclusion of the contract, following
any practice established previously between the parties, or according to the approaches of
good faith and reasonableness.[7]
It must be noted, however, that Art. 55 CISG, dealing with "open-price" terms,[8] provides a
regime different to that in Art. 14 CISG regarding the determination of the price of the goods.
Pursuant to Art. 55 CISG, parties to validly concluded contracts are considered, in the
absence of any contrary indication, to have impliedly agreed on the price generally paid under
comparable circumstances in the trade concerned.[9]
The apparent contradiction[10] between those two provisions of the Convention can be traced
back to the different drafting solutions debated in the sessions held by UNCITRAL, and which
reflect the different solutions given to that matter in different national juridical classifications.[11]
Scholarly opinion is divided on the manner in which the two provisions interact with one
another;[12] some commentators analyze the application of CISG Art. 14 in an isolated way,[13]
while others prefer the application of CISG Art. 55.[14]
The different approaches in the available doctrine are also reflected in the relevant international
case law. As an example of the divergent approaches, mention may be made of the decision of
the Hungarian Supreme Court in the case of Pratt & Whitney vs. Malev Hungarian
Airlines[15] as well as the subsequent scholarly critiques of that decision.[16]
Following the criticism of that decision in the commentary offered by PERALES, it is clear that
the court did not consider the interplay between Art. 14 and Art. 55 of the Convention. In that
critique, it is furthermore noted that that there is a further important element to consider, that is
the use of the rules of interpretation of the conduct of the parties (CISG Art. 8) according to
which, even in a case where the price has not been determined in the offer and there is no
market price for the particular goods, it might still be possible to deduce the price of the goods
based on all the relevant circumstances of the case and, thus, to conclude that a price has been
implied into the agreement of the parties.[17]
Support for that proffered approach can be found in the case law, where tribunals have dealt
with the matter of determination of the price according to objective parameters agreed by the
parties previously or tacitly, as well as in situations where the parties have not agreed the price
but have concluded contracts with "open-price" terms. Such an interpretive approach would
provide much desired uniformity on the issue under examination.[18]
It is also worthwhile to examine the treatment afforded by the counterpart provisions of the
UNIDROIT Principles to this issue. The UNIDROIT Principles, in Art. 2.2, stipulate as
relevant requirements that the proposal should be sufficiently definite and indicate the intention
of the offeror to be bound in case of acceptance by the offeree.[19]
The Principles require that the parties understand one another in terms of the precision of the
offer which should indicate with sufficient clarity the elements incorporated into the contract.
That would be achieved in spite of some elements not being precisely determined in the
proposal but are at least determinable by means of the practices established by the parties or
by reference to internationally accepted usages[20]; in that way the Principles provide for filling
gaps in some of its other related provisions.
Thus, under the UNIDROIT Principles, the essential elements of an offer might be uncertain,
without that uncertainty resulting into fatal inexactness of the offer, because the vital element is
the intention of the parties to be bound by the offer and it subsequent acceptance.[21]
Furthermore, contract formation under the Principles is regulated with stipulations about terms
that have been left open deliberately. In that sense, Art. 2.14 of the Principles expressly
provides:
"(1) If the parties intend to conclude a contract, the fact that they intentionally leave a
term to be agreed upon in further negotiations or to be determined by a third person
does not prevent a contract from coming into existence."
"(2) The existence of the contract is not affected by the fact that subsequently
(a) the parties reach no agreement on the term; or
(b) the third person does not determine the term, provided that there is an
alternative means of rendering the term definite that is reasonable in the
circumstances, having regard to the intention of the parties."