Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
C. Acceptance of an Offer [see also Formation of the Contract: Basic Principles and Open Questions]
Article 19, the regulation concerning a discrepancy between the offer and the acceptance, also caused problems in Vienna. First of all, sentence 1, like 150(2) of the German Civil Code and Article 7(1) of ULF, provides that an acceptance with additions, limitations or other modifications is considered a rejection of the offer and serves as a counter-offer. However, Article 19(3), like ULF Article 7(2), facilitates the formation of a contract if there are modifications which do not materially alter the conditions of the offer. The contract is then effective on the terms stated in the offer, modified by the immaterial changes in the acceptance (Article 19(2) sentence 2), unless the offeror protests these additions orally or immediately dispatches a notice to that effect (Article 19(2) sentence 2). Article 19(3) attempts to alleviate the difficulties in distinguishing between material and immaterial modifications by listing the contractual provisions to which any modifications are presumed to be material. [page 55]
The questions discussed in connection with ULF Article 7(2) are not resolved by Article 19. This Article simply clarifies that the offeror's notice of protest must merely be dispatched (Article 19(2) sentence 1). Unfortunately, the proposals to strike paragraphs (2) and (3) entirely, which would have led to the solution of § 150(2) of the German Civil Code, were not passed. The Dutch also withdrew their proposal, which would have allowed the offeree to save the contract by withdrawing any of the modifications objected to by the offeror.[page 56]
* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.(...)
181. Unfortunately, the phrase in the 1978 Draft Convention (Article 17(3)) which, under certain conditions, would have prevented the three kinds of terms mentioned in the third paragraph of Article 19 from being considered material, was deleted. A proposal to complete the list in paragraph 3 by the words "inter alia" - which would have reduced the weight accorded to those terms - was also rejected. Cf. A/Conf. 97/C.1/SR.10 at 11 § 82 (= O.R. 288). (Ghestin). Nonetheless, it is still possible that, given the special circumstances of the case, as well as party customs, negotiations, or usages, differences between offer and acceptance, even related to these points, may be considered as immaterial. An example is where the offeree proposes a different time for delivery. See also Secretariat's Commentary at 67 § 13-14 (further examples).
182. See A/Conf. 97/C.1/SR.18 at 2-3 (= O.R. 328 et seq.).
183. See A/Conf. 97/C.1/L.61 and L.91 (= O.R. 96) (motions by the U.K. and Bulgaria); A/Conf. 97/C.1/SR.10 at 3 et seq. (= O.R. 219 et seq.) (discussion).
184. A/Conf. 97/C.1/L.98 (= O.R. 96).
185. See A/Conf. 97/C.1/SR.10 at 8 et seq. (= O.R. 219 et seq.) (discussion).
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