Cite as Farnsworth, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 185-188. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
E. Allan Farnsworth
1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision
(1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.
(2) Official holidays or non-business days occuring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows.
1. History of the provision.
1.1. - Under Article 18(2), an «acceptance is not effective if the indication of assent does not reach the offeror within the time he had fixed». Article 20 contains rules of interpretation to aid in the interpretation of the offeror's language fixing a time for acceptance under Article 18(2).
1.2. - Article 20 is derived from Article 8(2) of ULFC, which provided: «If a time for acceptance is fixed by an offeror in a letter or in a telegram, it shall be presumed to begin to run from the day the letter was dated or the hour of the day the telegram was handed in for dispatch», as modified by a proposal made by the Secretariat (see Yearbook, VIII (1977), 82-83, 101). [page 185]
1.3. - Article 20(2) is derived from a Secretariat proposal based on Article 2(2) of the UNCITRAL Arbitration Rules, as modified by the Working Group (see Yearbook, VIII (1977), 101).
1.4. - Neither paragraph of Article 20 proved to be controversial after they left the Working Group (see Yearbook, IX (1978), 44; Official Records, I, 97) (nevertheless the article is criticized in KHOO, Formation, 138-139). It was, however, made clear in the discussions at the Vienna Conference that both paragraphs yielded to a showing of a different intention on the part of the offeror (see Official Records, II, 290).
2. Meaning and purpose of the provision.
2.1. - Article 20(1) provides a rule to determine the commencement of the period of time fixed by the offeror for acceptance of the offer. It thus implements Article 18(2), which provides that an «acceptance is not effective if the indication of assent does not reach the offeror within the time he had fixed». The rule of Article 20(1) is called into play if the offeror fixes a period of time, such as «10 days», for acceptance, rather than a date, such as «June 30».
In general, Article 20(1) chooses the time of dispatch rather than the time of receipt, because it is generally easier to prove the time of dispatch with reasonable certainty. Thus if the offeror writes «you must accept within 10 days» in a letter, the 10 days begins to run from the date shown on the letter. In the exceptional case in which a letter shows no date, the 10 days begins to run from the date shown on the envelope. The order of preference was chosen both because the offeree may discard the envelope but will keep the letter and because the offeror will usually have no record of the date on the envelope but will have a copy of the letter (see Secretariat's Commentary, Official Records, I, 25). If the offeror says «you must accept within 10 days» in a telegram, the 10 days begins to run from the moment the telgram is handed in for dispatch.
The preference for the time of dispatcb is abandoned, however, where a means of «instantaneous communication» is used. [page 186] Thus if the offeror says over the telephone or by telex «you must accept within 10 days», the 10 days begins to run from the moment that the offer reaches the offeree.
Since the rule of Article 20(1) is a rule of interpretation, it yields to an indication of a contrary intention (see Official Records, II, 290). Thus if the offeror writes «you must accept this offer within 10 days after you receive my letter», the 10 days begins to run from the time of receipt and not from the date shown on either the letter or the envelope. The same would be true if the offeror's letter says «you may have 10 days to consider my offer», since the offeree would not have 10 days to «consider» the offer if the period began to run from the date shown on either the letter or the envelope (see HONNOLD, Uniform Law, 197-198). Indeed, this language also seems sufficient to vary the rule of Article 18(2), at least to the extent that the time «fixed» by the offeror should be taken to be 10 days plus the normal course of the post; otherwise the offeree will not have 10 days to «consider» the offer.
2.2. - Article 20(2) deals with the effect on the period fixed by the offeror of official holidays or non-business days. The general rule is that such days are to be treated as all other days. It is therefore unnecessary for this purpose to specify what is meant by «official holidays or non-business days». However, if a notice of acceptance cannot be delivered at the offeror's address on the last day of the period because that day falls on an official holiday or a non-business day at that place, the period is extended until the next business day.
3. Problems concerning the provision.
3.1. - Although Article 20 will be simple to apply in most cases, problems will occasionally arise when the offeror departs from the ordinary in fixing a period. Suppose, for example, that an offeror says, «my offer is irrevocable for 5 days and it lapses after 10 days, if not sooner revoked». Does Article 20(1) apply to the 5 days period fixed under Article (2)(a) as well as to the 10 days period fixed under Article 18(2)? The answer would seem to be yes, though Article 20 was drafted with Article 18 in mind. [page 187]
3.2. - Similarly, suppose the offeror writes «you must mail your acceptance of my offer within 10 days». Does Article 20(2) apply? It would seem that the first sentence should apply, so that official holidays and non-business days at the offeror's place of business would not prevent the offeree from mailing his acceptance. The effect of such a day at the offeree's place of business in that case might properly be determined by a rule analogous to that in the second sentence.
3.3. - It is also possible to imagine a case in which the offeror's place of business remains open on a day that is an official holiday or non-business day, as where the place of business is open on Sunday. The second sentence of Article 20(2) presumably extends the period until the next business day in such a case, even though it might be possibile to deliver a notice of acceptance by exceptional means such as a private message service. This would be the better result, at least where it is not possible to deliver a notice of acceptance by the same means as those used to deliver the offer or by other comparable means. [page 188]