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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 21
Exceptions to Timely Acceptance Rule

A.  The Rule and the Exceptions
B.  Notification by Offeror Accepting Late Acceptance
C.  Acceptance Timely in Normal Circumstances

A. The Rule and the Exceptions

128. As noted previously with respect to the general Article 18(2) rule, an acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or within a reasonable time. Article 21 of the CISG provides the following two exceptions to the rule: [page 75]

'(1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.

(2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect.'

B. Notification by Offeror Accepting Late Acceptance

129. According to Article 18(2), a late acceptance is of no effect, and the offer to which the acceptance seeks to reply will lapse. However, under the exception set forth in Article 21(1), a late acceptance is nevertheless effective as such if the offeror promptly notifies the offeree to that effect. In such event, the acceptance becomes effective upon its receipt (and before the subsequent notice by the offeror).[1]

1. This differs from the result which obtains in systems which treat a late acceptance as a counter-offer: see Secretariat's Commentary, A/CONF./97/5, Comment 3 to Article 19(1) of the 1978 Draft.

C. Acceptance Timely in Normal Circumstances

130. Article 21(2) deals with a somewhat more complex situation: the late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time. In this case the CISG drafters chose to follow the Scandinavian rule:[l] the late acceptance is effective as such unless the offeror promptly informs the offeree that he considers his offer as having lapsed. [page 76]

1. See Article 4(2) of the (Uniform Scandinavian) Contracts Act.


Pace Law School Institute of International Commercial Law - Last updated April 1, 2005
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