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Article 23. Time of Conclusion of Contract

TEXT OF ARTICLE 23

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


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

23A Contract concluded when acceptance becomes effective

23A1 Time when acceptance is effective: see art. 18(2)


DESCRIPTORS

Acceptance of offer


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites ten cases in its Digest of Art. 23 case law:

Australia         1           Hungary       1           Spain        1
France      2           ICC      1           Switzerland        1
Germany       2           Mexico      1           TOTAL:   10

Presented below is a composite list of Art. 23 cases reporting UNCITRAL Digest cases and other Art. 23 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 28 January 2000 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.
 

United States 19 May 2008 U.S. District Court [Florida] (Zhejiang Shaoxing Yongli Printing and Dyeing Co., Ltd v. Microflock Textile Group Corporation)

United States 9 May 2008 U.S. District Court [Delaware] (Solae, LLC v. Hershey Canada, Inc.) 23A

France 27 May 2008 Cour d'appel [Appellate Court] Rennes (Brassiere cups case) [translation available]
 

Slovak Republic 17 September 2007 Regional Court [Appellate Court] in Nitra (Round wafers case) [translation available]

Slovak Republic 18 June 2007 Regional Court Zilina (Baked and confectionary goods case) [translation available]

Hungary 6 June 2007 Congrád County Court (Clothing case) [translation available]

Slovak Republic 8 January 2007 Regional Court Zilina (Polyethelene case) 23A [translation available]
 

France 22 December 2006 Tribunal de grande instance [District Court] Strasbourg (Cathode ray tube case) 23A [translation available]

Slovak Republic 26 May 2006 Supreme Court (Wafers case) [translation available]

Spain 22 May 2006 Court of First Instance of Badalona (Bermuda shorts case) [translation available]

Slovak Republic 6 March 2006 Regional Court Zilina (Lift adaptor case) 23A [translation available]

Slovak Republic 27 February 2006 District Court Nitra (L.-K S.r.l. v. N. S.r.l.) [translation available]
 

Canada 6 October 2005 Canadian International Trade Tribunal (Cherry Stix Ltd. v. President of the Canada Borders Service Agency)

China 15 September 2005 CIETAC Arbitration Award [CISG 2005/15] (Wool and Wooltop case) 23A [translation available]

United States 27 April 2005 U.S. District Court [Alabama] (Treibacher Industrie, A.G. v. TDY Industries, Inc.)

Spain 31 January 2005 Audiencia Provincial [Appellate Court] Cuenca (Live calves case) [translation available]

Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) [translation available]
 

Belgium 8 November 2004 Hof van Beroep [Appellate Court] Gent 23A [translation available]

China 10 October 2004 Higher People's Court [Appellate Court] of Guangdong Province (America Inland Sea Incorporated and China Jiedong County Haifu Fishery v. Jiedong County Yuequn Fishery and Yuequn Hong) [translation available]
 

Germany 26 November 2003 Landgericht [District Court] Hamburg (Phtalic Anhydride case) [translation available]

United States 5 May 2003 U.S. Circuit Court of Appeals [9th Cir.] (Chateau des Charmes Wines v. Sabaté USA)
 

Germany 29 October 2002 Oberlandesgericht [Appellate Court] Schleswig-Holstein (Stallion case) [translation available]
 

Germany 21 December 2001 Landgericht [District Court] Hamburg (Natural stones case) 23A [translation available]

Belgium 10 July 2001 Rechtbank van Koophandel [Commercial Court] Oudenaarde (Textile case) 23A [translation available]
 

Austria 15 June 2000 Oberlandesgericht [Appellate Court] Graz [translation available]

* Spain 28 January 2000 Tribunal Supremo [Supreme Court] [translation available]

ICC 2000 International Court of Arbitration, Case 10329 23A [English text]
 

Germany 3 December 1999 Oberlandesgericht [Appellate Court] München [translation available]

Netherlands 14 October 1999 Arrondissementsrechtbank [District Court] Rotterdam 23A [translation available]
 

China 25 December 1998 CIETAC Arbitration Award [CISG/1998/11] (Pig iron case) 23A [translation available]
 

Hungary 17 June 1997 Fovárosi Bíróság [Metropolitan Court]
 

* Switzerland 10 July 1996 Handelsgericht [Commercial Court] Zürich [translation available]

* Mexico 29 April 1996 Compromex Arbitration award 23A [translation available]
 

* France 13 December 1995 Cour d’appel [Appellate Court] Paris [translation available]

* Australia 28 April 1995 Federal District Court, Adelaide (Roder v. Rosedown)

* Germany 8 March 1995 Oberlandesgericht [Appellate Court] München [translation available]

Russia 3 March 1995 Arbitration award 304/1993 [commentary available]

Russia 3 March 1995 Arbitration award 309/1993

Germany 8 February 1995 Landgericht [District Court] München [translation available]
 

China 25 October 1994 CIETAC Arbitration Award [CISG/1994/13] (High tensile steel bars case) [translation available]

Germany 14 July 1994 Landgericht [District Court] Kassel

* ICC 1994 International Court of Arbitration, Case 7844
 

Germany 22 September 1992 Oberlandesgericht [Appellate Court] Hamm (Frozen bacon case) 23B [translation available]

* France 22 April 1992 Cour d'appel [Appellate Court] Paris

* Hungary 10 January 1992 Fovárosi Bíróság [Metropolitan Court] 23A [translation available]
 

* Germany 26 September 1990 Landgericht [District Court] Hamburg 23A


UNCITRAL CASE DIGEST

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/23 [8 June 2004]. Reproduced with the permission of UNCITRAL.

ARTICLE 23

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

DIGEST OF ARTICLE 23 CASE LAW

1. Article 23 provides that a contract is concluded when an acceptance of an offer becomes effective. Except as provided in article 18(3), an acceptance is effective at the moment it reaches the offeror in accordance with article 18(2). The exception in article 18(3) provides that an acceptance is effective at the moment the offeree performs an act if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree is authorized to indicate its acceptance of the offer by an act.

2. A contract is concluded when communications between the parties, as interpreted in accordance with article 8, establish that an acceptance of an offer reaches the offeror.[1] One decision concluded that an offer conditioned on the approval of the parties’ respective Governments, when properly interpreted, did not postpone conclusion of the contract under the Convention.[2] Another decision found that a supplier and a potential sub-contractor had agreed to condition the conclusion of the sales contract on the award of a sub-contract by the main contractor.[3]

3. Once a contract is concluded, subsequent communications may be construed as proposals to modify the contract. Several courts subject these proposals to the Convention’s rules on offer and acceptance.[4]

4. Article 23 does not address where a contract is concluded. One court deduced from article 23 that the contract was concluded at the place of business where the acceptance reached the offeror.[5]


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. [MEXICO Compromex Arbitration Award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>]; (contract concluded when acceptance reached buyer); CLOUT case No. 134 [GERMANY Oberlandesgericht [Appellate Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>] (although Part II not applicable because of art. 92 declaration, court finds contract concluded by intention of the parties); 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>] (contract concluded when acceptance reached offeror); CLOUT case No. 5 [GERMANY Landgericht [District Court] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>] (exchange of communications, interpreted in accordance with art. 8, established parties' intent to conclude contract) (see full text of the decision).

2. [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 10 January 1992, available online at <http://cisgw3.law.pace.edu/cases/920110h1.html>] English-language trans. available, reversed on other grounds, 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).

3. [ICC Court of Arbitration, case No. 7844 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947844i1.html>].

4. CLOUT case No. 395 [SPAIN Tribunal Supremo [Supreme Court] 28 January 2000, available online at <http://cisgw3.law.pace.edu/cases/000128s4.html>] (proposal to modify price not accepted); CLOUT case No. 193 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 July 1996, available online at <http://cisgw3.law.pace.edu/cases/960710s1.html>] (proposal to modify price not accepted by silence, citing art. 18(1)); 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>] (confirmation letter sent after contract concluded not accepted).

5. 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>] (German law applied because acceptance reached offeror at its place of business in Germany) (see full text of the decision).


CASE ANNOTATED COMPARATIVES
-  PECL comparative

Remarks on the manner in which the PECL may
be used to interpret or supplement Article 23 CISG

Pilar Perales Viscasillas [*]
January 2002

Introduction to contract formation in the CISG and PECL

Section II PECL and Part II CISG follow the classic pattern of two declarations of will (offer and acceptance) in deeming a contract concluded. The adoption of this process, which is designed in almost the same terms under both texts, is justified for two reasons: 1) it is adopted by the great majority of legal systems; and 2) it makes analyzing the formation of the contract easy for the parties and judges or arbitrators. Nevertheless, at times it is difficult to determine what exactly is an offer or an acceptance, such as when negotiations are long and complicated. That, however, does not prevent the conclusion of a contract.

Article 23 CISG fixes the time of the conclusion of the contract connecting it with the moment at which the acceptance takes effect in accordance with the provisions of the Convention. It seems clear that, although article 23 is a central piece in Part II of the Convention, it must be viewed in conjuction with the rest of the dispositions of Part II that establish a precise moment at which the indication of assent takes effect, depending on the manner chosen by the offeree to accept the offer. In Part II of the PECL there is no provision similar to article 23 CISG, although article 2:205 PECL (Time of conclusion of the contract) tries to embody in a single disposition the precise time of the conclusion of the contract depending on the way in which acceptance of the offer takes place. However, article 2:205 PECL alone is not enough to fix the time of the conclusion of the contract; to have a complete picture of the exact moment at which a contract is concluded, one must turn to other rules of the PECL. The significance of finding the exact moment of the conclusion of the contract is that the parties are bound to the contract, i.e., they are obliged to fulfill the obligations derived from a contract which is born to the law at that exact moment.

Specific rules concerning contact formation in the CISG and PECL [articles 23 CISG and 2:205 PECL]

Article 23 CISG is directed to the rest of the norms of Part II of the Convention that point out when the indication of assent is effective. This, in turn, must be referenced to the relevant provision in article 18(2) CISG, which must be analyzed in accordance with article 24 CISG. Article 18(1)-(3) and articles 19 and 21 CISG are also relevant to this matter; similarly, article 2:205 PECL has to be analyzed considering other rules of the European Principles - mainly, articles 1:303 (similar to article 24 CISG); 2:204(2) (counterpart of article 18(1) CISG, in relation to acceptance by silence or inaction); 2:207 (for late acceptances, ruled on in article 21 CISG); article 2:208 (modified acceptance, similar to article 19 CISG); and, finally, article 2:209 which refers to conflicting general conditions.

Articles 18(2) CISG and 2:205(2) PECL state that the acceptance becomes effective and therefore the contract is concluded when the indication of assent reaches the offeror. These provisons fix the general rule on the moment at which the acceptance takes effect. In this regard, the Convention, the PECL and also the UNIDROIT Principles for International Commercial Contracts follow the same rule to determine the conclusion of the contract, as do some national legal systems. However, there are other systems which adopt the dispatch principle to deem the contract concluded (see Notes to Article 2:205 PECL).

Both the CISG and the PECL have adopted for their relevant provisions the term "reaches," which is defined in articles 24 CISG and 1:303(3) PECL in a comprehensive way. One consideration in regard to the comparison between the CISG and PECL provisions is the location of article 1:303(3) PECL. Located in Chapter I (General Provisions) of the European Principles, it entails that, different than the Convention (cf. articles 23 and 27 CISG), the receipt rule is applied as a general principle to fix the effectiveness of any notice (i.e., the communication of a promise, statement, offer, acceptance, demand, request or other declaration - article 1:303(6) PECL), not only to establish the time of conclusion of the contract as does article 23 CISG.

Article 24 CISG indicates when a Part II (Formation) communication, including the acceptance, "reaches" the addressee. A Part II (Formation) communication reaches the addressee "when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence." By the flexible and broad definition given in article 24 CISG, the Convention seems to adopt as a general rule for written statements, the Receipt Theory; and, for oral communications, the Information Theory.[1] The solution adopted by the PECL is slightly different: article 1:303 adopts the Receipt Theory as a general rule for both oral and written notices.

The "Reaching Principle" as a general rule in both CISG and PECL is applied to the following ways of indicating assent:

1) Indication of assent made by written statements [articles 18(1) CISG and 2:205(1) and 1:303(2) PECL]. A written declaration represents the most usual way in which the offeree shows his conformity with the offer.[2] In such a case, the contract is concluded when the communication "reaches" the offeror at his place of business or mailing address; if none exists, at his habitual residence. This means that the contract is concluded, for example, by the delivery of the communication by a messenger; the printing of a fax transmission; leaving the letter in the mailbox; the delivery of the notification informing of the arrival of a letter or telegram at the Post Office;[3] or when an EDI or Electronic-mail message enters into the offeror's computer system of information, or when the message is deposited in the electronic or informatic mailbox.

2) Indication of assent made by oral statements [articles 18(1) CISG, and 1:303(1)(3) and 2:205(1) PECL]. Oral statements are made not only when the parties negotiate face to face, but also when they use other means of communication: phone, radio, video-conference, etc. In such cases, under the CISG the contract is concluded when the offeror has knowledge of the acceptance,[4] whereas under the PECL the oral communication need merely be received.

3) Indication of assent made by conduct [articles 18(1) CISG and 2:205(2) PECL]. There are two types of acceptances by conduct that need to be considered:

      a) Some kind of behavior or conduct (e.g., raising a hand and nodding one's head). Under the CISG, this is deemed effective when the offeror understands the meaning of the conduct. Consequently, this system of information should be adopted by an extensive interpretation of article 24 CISG. The PECL has a specific rule dealing with this matter that follows the general receipt theory: in case of acceptance by conduct, the contract is concluded when notice of the conduct reaches the offeror (article 2:205(2) PECL).[5]

      b) Acts of performance (e.g., dispatch of the goods and payment of the price) which, contrary to the situation regulated in articles 18(3) CISG and 2:205(3) PECL, must reach the offeror in order to conclude the contract: 1) by the goods reaching the offeror's place of business; 2) by the communication that informs of the making of the act indicating assent reaching the other party; or 3) by the payment of the price.[6]

4) Late acceptance due to some irregularity during the transmission process [articles 21(2) CISG and 2:207(2) PECL]. Such acceptances are deemed effective when they reach the offeror.[7]

Besides the general rule established by the aforementioned articles of the CISG and the PECL, there are some other dispositions relevant to the formation of the contract that state exceptions to the receipt rule:

1) Silence or inaction [articles 18(1) CISG and 2:204(2) PECL]. The recognition of silence and inaction as acceptances implies the irrelevance of the communication. Strictly speaking, silence and inaction are not exceptions to the general rule since they cannot be submitted in any of the other classic theories devised to fix the moment of the conclusion of the contract - Declaration and Expedition (the latter known for the contract inter absentes in the common law systems as the Dispatch, Mailbox or Post rule). Silence and inaction, by definition, mean the concession of legal effects to an abstainer attitude of the offeree. The moment of the conclusion of the contract by silence or inaction is diverse and hangs on the factors that contribute to give them legal effect:

      a) When silence or inaction are considered as acceptances by the dispositions of the Convention, their effectiveness is determined by the interpretation of the expression "without delay". In all of the cases the offeror is given an option to confirm (by his silence or inaction) in the situations contemplated by articles 19(2) and 21(2) CISG and 2:207(2) PECL), or to negate (also by his silence or inaction) in the hypothesis regulated by articles 21(1) CISG and 2:207(1) PECL) the conclusion of the contract. Thus, the termination of the period of time to confirm or negate the conclusion of the contract determines the failure or, on the contrary, the effectiveness of the acceptance.

      b) When usages, or the practices the parties have established between themselves and the agreement of the parties give the effect of an acceptance to silence or inaction, the time given to the offeree to accept is determined (expressly, or impliedly) by the agreement (practices) of the parties previously established, or the agreement considered by applicable trade usages. Thus the effectiveness of the agreement will be established by the expiration of the period of time previously agreed on.[8]

      c) When silence and inaction are deemed as acceptances due to any other circumstances - such as the existence of a "duty to speak" derived from the good faith principle - the expiration of the time in which the negative reply should have reached the offeror, leads to the concession of positive effects to the offeree's silence at that moment.[9]

2) Acts of performance [articles 18(3) CISG and 2:205(2) PECL]. These provisions deal with situations in which the offer, the practices already established between the parties or usages, authorize the offeree to accept by performing an act without the need to communicate it to the offeror. In this case, the contract is deemed concluded when the performance of the act begins, i.e., following the CISG, when the dispatch of the goods and the payment of the price are made.[10] Notwithstanding the clear meaning of these provisions, some CISG scholars believe that the acceptance by act of performance under article 18(3) needs to be communicated in order to deem the contract concluded.[11]

Usually the Battle of the Forms involves situations in which a contract is concluded by acts of performance.[12]

3) Late acceptance [article 21(1) CISG]. The last exception to the "Reaching Principle" in the Vienna text, is the one contemplated by article 21(1). This article states that the contract is concluded when the offeror dispatches a notice (Dispatch Principle) informing the offeree of the effectiveness of his declaration or when the offeror orally so informs the offeree (Information Theory). Thus, the CISG adopts the Dispatch Principle to regulate the conclusion of the contract when the offeror sends a written notice.[13] However, some scholars (following the Secretariat Commentary on article 19 of the 1978 Draft Convention),[14] believe that the moment of the conclusion of the contract in the circumstances contemplated by article 21(1) CISG, is the reception of the late acceptance. Precisely the same result is derived from article 2:207(1) PECL (and the corresponding PECL Comments), since the PECL does not adopt the dispatch theory; therefore, under the PECL, the conclusion of the contract in case of a late acceptance is governed by the receipt rule - i.e, when the late acceptance reaches the offeror.

Contract formation outside the traditional model of offer and acceptance

Two relevant questions arise concerning the existence of contracts that have not followed the traditional "offer" and "acceptance" pattern:

(a) Can a contract be concluded under the rules of the CISG when there is no offer and acceptance?

(b) If the answer to the first question is positive, when is the contract concluded?

Both questions receive a positive answer under the PECL.[15]

Under the Vienna Convention, the first answer could also be considered affirmative. There is a general accord among many scholars on this issue.[16] The fact that a contract during its formation process did not follow the traditional scheme and was subsequently (or consequently) concluded without isolating an offer and a corresponding acceptance does not reduce the value of the dispositions in Part II of the Convention.[17] In such cases, the contract regulation is derived from the general principles to be found in Part II of the Convention, always taking into account the need for a uniform interpretation and application of the Convention (as per article 7 CISG). Although finding the precise moment in which the contract is concluded could be very difficult absent any other conclusive proof, in many cases the contract shall be deemed concluded either when there is a sufficient agreement between the parties, or when there is performance of the contract by both parties.

The exact place and time of contact formation

Contracts concluded between parties located in the same place do not raise problems in relation to the place where the contract is deemed to be concluded. However, when the parties negotiate from distance - even when they use means of instantaneous communication - the exact place where the contract was concluded may require further investigation.

Neither the CISG, nor the PECL say anything on this point. The Secretariat Commentary states that the fact that draft article 21 [article 23 CISG], in conjunction with draft article 16 [article 18 CISG], fixes the moment at which the contract is concluded may be interpreted in some legal systems to be determinative of the place at which the contract is concluded.[18] In any case, it seems clear that this is a question that must be solved in accordance with the applicable national law (as per article 7(2) CISG), since there is neither a provision nor a general principle that could point out where the contract is concluded.[19]

Lastly, whether the time of the conclusion of the sales contract may be important to determine the application of some specific matters, like domestic fiscal or regulatory laws, should also be decided by the applicable domestic law.[20]

Conclusions

The PECL and the CISG have adopted the receipt theory as a general rule to deem the contract concluded, following the most modern approach in comparative law.

As an exception, both instruments adopt the dispatch principle or even the information theory in certain circumstances.

Although both texts regulate the contract conclusion in a comprehensive way, the PECL can help to interpret the CISG in some situations (such as late acceptances), or may even be used to supplement the CISG (for instance, in cases in which the contract has not been concluded via the traditional exchange of the two declarations of will - offer and acceptance).


FOOTNOTES

* Doctor in Law. Commercial Law Professor at the University Carlos III of Madrid (Spain). Spanish representative at UNCITRAL.

A match-up of CISG Article 23 and PECL Article 2:205 [Time of conclusion of contract] is available at <http://cisgw3.law.pace.edu/cisg/text/peclcomp23.html>. The match-up is accompanied by:

-   Comments on PECL 2:205 authored by the European Commission describing and illustrating the manner in which this provision is tobe applied; and
-   Notes that compare this provision with continental and common law domestic rules, doctrine and jurisprudence.

1. There are only few scholars -- a great many are silent about this point -- who hold that when the offeror knows the acceptance, the contract orally made is concluded. See, for example, Pilar Perales Viscasillas, La formación del contrato de compraventa internacional de mercaderías, 1996 (Tirant lo blanch), 232-237. See note 5 infra for an illustration of the Information Theory.

2. As written statatements we can consider those made by letter, telegram, telex, fax, Electronic mail (e-mail, using Internet), Electronic Data Interchange (EDI) and any other that could be included in the concept of "writing". For this solution, see Rafael Illescas Ortiz, La Convención de Viena de 1980 sobre compraventa internacional de mercaderías: ámbito de aplicación y perfección del contrato, 16 Derecho de los Negocios, 7 (1992).

3. Against, Peter Schlechtriem, "Begriff des Zugangs", in Schlechtriem Kommentar zum Einheithlichen UN-Kaufrecht Das übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf -CISG Kommentar-, 3rd ed. (C.H.Beck: München, 2000), no. 12.

4. Information communicated orally by a third person could be also considered as an oral statatement. It is doubtful when the reply to an offer recorded in an answering machine is effective: for Schlechtriem, it is effective when the offeror knows it, i.e., when he hears it (Peter Schlechtriem, "Begriff des Zugangs", in Ernst von Caemmerer & Peter Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht. Das Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf -CISG- Kommentar, 1st. ed. (C.H. Beck: München, 1990) no. 8. However, this author seems to follow another orientation in the second and third edition of his commentary (see, Schlechtriem, supra note 3, at no. 8); for some authors, the moment that fixes the conclusion of the contract is the moment determined by the recording of the message: Karl Neumayer & Catherine Ming, Convention de Vienne sur les contrats de vente internationale de marchandises (Cedidac: Lausanne, 1993) 202; and Perales Viscasillas, supra note 1, at 233.

5. However, the PECL Comments to article 2:205(2) state that the contract is concluded when the offeror learns of the conduct, thus, meaning that the Information Theory applies as shown by PECL illustration 1: "Having learned from a colleague that B may be interested in buying and reselling A`s goods, A sends unsolicited goods to B. B accepts by advertising the goods for sale in a trade paper which A reads. A learns of the acceptance when she reads the advertisement."

6. LG Krefeld, 24 November 1992 (12 O 153/91) (Germany) <http://cisgw3.law.pace.edu/cases/921124g1.html> made clear that an offer, made by an Italian seller, was accepted conclusively when the German buyer received the goods without objecting to them. The Vienna scholars have not made any especial effort to clarify the structural differences between an indication of assent made by acts of performance under article 18(1) and indicia of assent under article 18(3). When the acts of performance are protected by the factors enumerated in article 18(3) (offer, practices and usages), the offeree can accept without communicating his acceptance, the contract being concluded when he makes the relevant act of performance. On the contrary, if the offeree accepts by an act of performance without the factors contemplated in article 18(3), his indication of assent must reach the offeror in order to conclude the contract -- article 18(1) and (2). In these cases the moment when the contract is concluded is different, as well as the limit to revoke the offer under article 16(1) CISG. The decision of OLG Frankfurt, 27 November 1979 (5 U 15/79) (Germany) established clearly the difference in the predeccesor to article 18 CISG, which is article 6 of the 1964 Uniform Law on the Formation of Contracts (ULF).

7. There is a general accord among the scholars about the moment when the acceptance takes effect in this hypothesis. See, among others, Katharina S. Ludwig, Der Vertragsschluss nach UN-Kaufrecht im Spannungsverhältnis von Common Law und Civil Law: dargestellt auf der Grundlage der Rechtsordnungen Englands und Deutschlands, Studien zum vergleichenden und internationalen Recht- Comparative and International Law Studies, Band 24 (Peter Lang: Frankfurt am Main, 1994) at 344 et seq.

8. See the Secretariat Commentary on article 16(1) of the 1978 Draft of the CISG. Official Records, note 1, p. 23.

9. This solution is supported by Pilar Perales Viscasillas, La perfección por silencio de la compraventa internacional en la Convención de Viena de 1980, 52 Derecho de los Negocios 9-14 (enero 1995), commenting on the first decision on the value of the silence or inaction of the offeree under the Vienna Convention. See U.S. District Court for the Southern District of New York, 14 April 1992, 91 Civ.3253 (CLB) (United States), Filanto S.p.A. v. Chilewich International Corp., 789 F.Supp. SDNY 1992, pp.1229-1242 <http://cisgw3.law.pace.edu/cases/920414u1.html>, appeal dismissed, 984 F.2d 58 (2d Cir. 1993). See also supporting the same solution but extended it to every case in which silence or inaction play the role of acceptance: Ludwig, supra note 7 at 348.

10. See, among the authors who do not demand a communication in such cases: Gyula Eörsi, Formation of Contract, in The 1980 Vienna Convention on the International Sale of Goods. Lausanne Colloquium of November 19-20, 1984. Institut Suisse de Droit Comparé (3) (Schulthess Polygraphischer: Zürich, 1985) 50.

11. The vast majority of the scholars follow the thesis supported by Professor Honnold, who thinks that there is a general principle applicable to article 18: the need to communicate the acceptance, a principle which is also applicable to paragraph (3) of article 18 unless in a given case a quick reaching of the goods could substitute the notice informing the act of acceptance. See, John O. Honnold, Uniform Law for International Sales, 3rd ed. (Kluwer Law International, 1999) no. 164, pp.178-181.

See, against this thesis, the legislative history: during the Diplomatic Conference held in 1980 in Vienna a proposal made by Professor Farnsworth in order to introduce the obligation to notify of the performance of the act was withdrawn due to lack of support (Official Records, pp. 280 et seq.).

12. See editorial remarks (comparative commentary) on article 19 CISG and its PECL counterparts, available at <http://www.cisg.law.pace.edu/cisg/text/peclcomp19.html#er>.

13. Perales Viscasillas, supra note 1, at 606-610. Honnold, supra note 11 at 196, no. 175, footnote 2, so indicates when he comments on the time limit to withdraw the acceptance.

14. The Secretariat Commentary on article 19 of the 1978 Draft [antecedent to CISG article 21] states that "under this paragraph it is the late acceptance which becomes the effective acceptance as of the moment of its receipt, even though it requires a subsequent notice to validate it," Official Records, para. 3, p. 25. See supporting this view, Ludwig, supra note 7 at 341-342 and 405-406. See also comment 2 of article 2.9 of the UNIDROIT Principles of International Commercial Contracts, International Institute for the Unification of Private Law (Rome, 1994) 39.

15. Article 2:211 PECL (Contracts not concluded through offer and acceptance) states that the rules of formation of the contract through offer and acceptance apply with appropiate adaptations to the aforementioned situations.

16. See, supporting this view: Eörsi, supra note 10 at 44; Michael Joachim Bonell, Formation of Contracts and Pre-contractual Liability under the Vienna Convention on International Sale of Goods, in Formation of Contracts and Precontractual Liability (ICC: Paris, 1990, publication no. 440/9), 161 et seq.; Honnold, supra note 11 at no. 132.1, 144 et seq.; and Perales Viscasillas, supra note 1, at 117-124.

Against: Ulrich von Huber, Der Uncitral-Entwurf eines Übereinkommens über Internationale Warenkaufverträge, 43 Rabels Zeitschrift, No. 3, 445 et seq. (1979).

17. See in this sense: John Honnold, International Sales Law and the Open-Price Contract, in Homenaje a Jorge Barrera Graf, tomo II (Universidad Nacional Autónoma de México: México, 1989) 917; and Perales Viscasillas, supra note 1, at 117-124. They adopt the doctrine stated in section 2-204(2) UCC and in section 22(1) Restatement (Second) of Contracts.

Chapter 2 of the UNIDROIT Principles dedicated to the formation of the contract analyzes the formation process in the context of two declarations of will: offer and acceptance. Nevertheless, the UNIDROIT Principles also recognizes the possibility that the contract could be deemed concluded by the conduct of the parties. See Article 2.1 (Manner of Formation) of the UNIDROIT Principles. In this regard, the Ad Hoc Arbitral Award, Rome (Italy) of 4 December 1996, Unilex - UNIDROIT Principles, Transnational, June 2000, D-1996-9, cited Articles 1.2, 2.1, 2.6 and 2.12 to demonstrate the possibility of the valid conclusion of the contract for the sale of fuel oil between an English and Italian company. See Pilar Perales Viscasillas, Formation of the contract under the CISG. In Law and Practice of Export Trade. Münster: Center for Transnational Law, 2001, vol. 3, pp. 97-114.

18. Secretariat Commentary on article 21 of the 1978 Draft, Official Records, para. 2, p. 26.

19. During the Diplomatic Conference, a proposal made by the Italian delegation was rejected; the proposal suggested the extension of its field of application to the place of performance (Official Records, pp. 291 et seq.).

20. As stated by Honnold, supra note 10 at no. 178, 200.


Pace Law School Institute of International Commercial Law - Last updated August 28, 2009
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