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LEGISLATIVE HISTORY
Legislative history of CISG article 19:
Match-up with 1978 Draft to assess relevance of Secretariat Commentary

       1978 Draft article 17                        CISG article 19 

(1)A reply to an offer which purports   (1)A reply to an offer which purports   
   to be an acceptance containing          to be an acceptance but contains        
   additions, limitations or other mod-    additions, limitations or other mod-    
   ifications is a rejection of the offer  ifications is a rejection of the offer  
   and constitutes a counter-offer.        and constitutes a counter-offer.       

(2)However, a reply to an offer which   (2)However, a reply to an offer which  
   purports to be an acceptance but        purports to be an acceptance but    
   which contains additional or diffe-     contains additional or different    
   rent terms which do not materially      terms which do not materially alter   
   alter the terms of the offer consti-    the terms of the offer constitutes an  
   tutes an acceptance unless the of-      acceptance, unless the offeror, with- 
   feror objects to the discrepancy        out undue delay, objects orally to   
   without undue delay. If he does not     the discrepancy or dispatches a notice  
   so object, the terms of the contract    to that effect. If he does not so object,
   are the terms of the offer with the     the terms of the contract are the     
   modification contained in the accept-   terms of the offer with the modifica- 
   ance.                                   tions contained in the acceptance.   

(3)Additional or different terms relat- (3)Additional or different terms relat- 
   ing, inter alia, to the price, pay-     ing, among other things, to the     
   ment, quality and quantity of the       price, payment, quality and quanti- 
   goods, place and time of delivery,      ty of the goods, place and time of     
   extent of one party's liability to the  delivery, extent of one party's liabil- 
   other or the settlement of disputes     ity to the other or the settlement of  
   are considered to alter the terms of    disputes are considered to alter the
   the offer materially, unless the        terms of the offer materially.       
   offeree by virtue of the offer or the
   particular circumstances of the case
   has reason to believe they are
   acceptable to the offeror.


Editorial comments
The Secretariat Commentary on 1978 Draft article 17 is only partially
relevant to CISG article 19.  The key difference between the texts of these
articles is the deletion from paragraph (3) of the phrase "unless the
offeree by virtue of the offer or the particular circumstances of the case
has reason to believe they are acceptable to the offeror".  The Summary
Records of Committee Meetings of the Vienna Diplomatic Conference include
the following comments on this subject:

"Mr. STALEV (Bulgaria)... explained that article 16(1) and article 17(1)
[the 1978 Draft counterparts to CISG articles 18(1) and 19(1)] established a
fundamental rule and a rational principle, i,e. that there could be no
contract without agreement by the parties on all points.  However, that
fundamental rule was almost nullified by the exceptions given in paragraphs 2
and 3...the result being that a contract could be concluded implicitly when
there had been no agreement on the essential elements of sale as stated in
the first [part] of paragraph 3.  That solution sacrificed the fundamental
considerations of international trade relations -- certainty and security -- to
less important considerations, such as the flexiblity of rules and equity in
individual cases.  It also jeopardized the interests of less experienced
enterprises, which might not refuse an offer in good time.  His delegation
therefore proposed that paragraphs 2 and 3 should be deleted and, if that
proposal were not accepted, recommended that at least the last part of
paragraph 3 from 'unless the offeree...' should be deleted".  
(Official Records, p. 284.)

The significance of the deletion of the last part of paragraph (3) is
illustrated by the following Secretariat Commentary on 1978 Draft article
17, the last sentence of which does not fit CISG article 19.

"11. Additional or different terms which are of routine significance to
the personnel engaged in ordering or selling the goods may constitute
material alterations of the offer from a legal point of view.  Article
17(3) [of the 1978 Draft], by way of example, sets out a non-exhaustive list
of provisions in respect of which any additional or different term in the
purported acceptance is considered to be material.  Additional or different
terms in respect of such a provision would not, however, be considered to be
material alterations if the 'offeree by virtue of the offer or the
particular circumstances of the case has reason to believe they are
acceptable to the offeror'".  [This is the phrase that was deleted.]

To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG