Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

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Article 29

Article 29 governs the termination or modification of the contract by mere agreement of the parties, such as a mutual respite in payment [LG Hamburg 26 September 1990] [137] or a settlement agreement [LG Aachen 14 May 1993].[138] Although Article 29 is in Part III of the CISG, the rules of Part II apply to the formation of agreements that modify or terminate a contract [LG Hamburg 26 September 1990; OLG Köln 22 February 1994].[139] Therefore, under Article 18(1), mere silence or inactivity does not amount to acceptance of an offer to terminate the contract. Nevertheless, the OLG Köln found an acceptance where the other party had not enforced the contract despite the receipt of non-conforming goods [OLG Köln 22 February 1994].[140]

Under these circumstances, the OLG Köln may have been correct. However, the general rule that silence is not an acceptance should be overruled only under exceptional circumstances that make clear the offeree's implicit acceptance. Otherwise we would reach the result that Article 18(1) is intended to prevent: an acceptance when the offeree regarded the offer only as an unacceptable nuisance and therefore did not see any reason to answer.

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FOOTNOTES

* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.

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137. Judgment of Sept. 26, 1990, LG Hamburg, 1991 IPRax at 402.

138. Judgment of May 14, 1993, LG Aachen, 1993 RIW at 761.

139. Judgment of Sept. 26, 1990, LG Hamburg, 1990 IPRax at 402; Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973.

140. Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973.

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