[United States of Americam (A/CONF.97/C.1/L.57):
Revise paragraph (3) of article 16 [became CISG article 18] to read as follows:
"(3) However, if by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, the acceptance is effective at the moment the act is performed provided that the act is performed within the period of time laid down in paragraph (2) of this article. An offeror who is not notified within a reasonable time may treat the offer as having lapsed before acceptance."]
57. Mr. FARNSWORTH (United States of America), introducing his delegation's amendment (A/CONF.97/C.1/L.57), explained that it was intended to make clear that, while an offeree might indicate assent by an act, notice must be given of that act, or the offer did not stand. A substantial change introduced in his amendment as compared to the original text was to make it a condition of the continued existence of the contract that notice should be given within a reasonable time.
58. Mr. WAGNER (German Democratic Republic) said that the provisions of article 16 [became CISG article 18 ], paragraph 3, as they stood, involved a risk that a contract might be deemed to have been concluded without the knowledge of the offeror. He was not, however, altogether satisfied with the wording of the United States amendment (A/CONF.97/C.1/L.57), which did not make the intended meaning clear enough. The amendment should stress that the notification must relate to the acts which had the effect of bringing the contract into being.
59. Mr. FELTHAM (United Kingdom) observed that it was essential to preserve the important principle enshrined in article 16 [became CISG article 18 ], paragraph 2 that, if an offeror made an offer that could be accepted by means of an act without notice, there could still be a contract even if paragraph 3 of the same article were to be amended in the manner proposed by the United States delegation.
60. Mr. SZÁSZ (Hungary) said that he had considerable difficulty in conceiving of a practice or usage whereby a mere act was enough to form a contract without any notice being given to the offeror. Normally the act involved would be directed towards the other party and the act in itself would serve as a notice. As he saw it, the United States amendment appeared to be intended to cover the case where the act in question was directed at a third party. He also had serious misgivings regarding the effects of the provision contained in the last sentence of the text proposed by the United States for article 16 [became CISG article 18 ], paragraph 3.
61. Mr. KHOO (Singapore) wholeheartedly associated himself with the remarks of the United Kingdom and Hungarian representatives. He felt the United States amendment entirely inappropriate in the context of paragraph 3 of the article, which dealt with a situation in which a certain usage existed among the parties whereby a contract could be concluded by the performance of an act. It was too late to attempt to go back on the main provision of that paragraph as the United States amendment appeared to do.
62. Mr. SEVÓN (Finland) had misgivings regarding two aspects of the United States amendment. The first was the effect of the expression "within a reasonable time", which was used in the last sentence and presumably referred to the reasonable time for sending notice. The previous sentence, however, referred to the act being performed "within the period of time laid down in paragraph 2" which paragraph itself used the expression "within a reasonable time". He feared that difficulties of interpretation would arise from the combination of those two provisions.
63. The second point was that it seemed to him difficult to compel the offeror to send a notice when -- under the terms of paragraph 3 -- it was the established practice among the parties not to require any such notice.
64. Mr. KRISPIS (Greece) said that he supported the United States amendment but shared some of the views of the United Kingdom and Hungarian representatives.
65. Mr. GOLDSTAJN (Yugoslavia) favoured retaining paragraph 3 in its existing form, which corresponded to the practice in his country. He felt that the acceptance of the United States amendment was likely to lead to difficulties and complications.
66. Mr. DATE-BAH (Ghana) associated himself with the remarks of the United Kingdom and other delegations. As he read it, paragraph 3 was based on a presumed waiver of the need to notify.
67. Mr. FARNSWORTH (United States of America) emphasized that his amendment to paragraph 3 was not intended to restrict the effect of the provision as it stood.
68. Mr. SAMSON (Canada) said that, for the reasons given by the representatives of Hungary and the United Kingdom, he was opposed to the United States amendment in the form in which it had been submitted. It would render the acceptance rule embodied in paragraph 3 somewhat ambiguous and much more uncertain of application.
69. Mr. MATHANJUKI (Kenya) said that it would be extremely difficult for him to support the United States amendment because under its terms an offeror could find that he had no contract at a moment when he had already performed it.
70. Mr. BENNETT (Australia) considered that paragraph 3 constituted an exception to the rule embodied in paragraph 2. He could not support the United States amendment which would detract from the whole purpose of paragraph 3.
71. Mr. FARNSWORTH (United States) said that, in view of the scant support for his amendment (A/CONF.97/C.1/L.57), his delegation withdrew it.
(. . .)