UNCITRAL Digest of Article 23 case law

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).