Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
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At the Vienna Conference, Belgium suggested that the issues involved in the
battle of the forms also be resolved.[186]
Unfortunately, the proposal did not arouse much interest. Even those who
recognized the importance of the practical problem believed that the issue was
not ripe for resolution, both because UNCITRAL had not discussed the problem and
because there was still uncertainty about the proper solution in domestic law.[187]
An argument from the German discussions was raised, namely that one could not
force the parties to accept the provisions of a law which both had rejected in
their standard contract terms. In my opinion, the reluctance is regrettable, and
the assertion that the problem could not be resolved because of the
uncertainties in domestic law is not convincing. Since the Convention does not
address the problem of conflicting standard contract terms, the solution will
depend on whether the deviations in the terms are material or immaterial,
according to Article 19(2), which corresponds to the proposals submitted in
connection with Article 7 of ULF.
The fact that certain provisions are proposed only in standard contract terms
or fine print is not enough to characterize them in every case as immaterial.
Since standard contract terms normally (also) affect the points mentioned in
Article 19(3), where they do, they must be considered material modifications.
Most of the time the party who last made reference to his conditions will
prevail if the other party indicates assent - or is supposed to - under Article
18(3).[188]
It is not certain, whether and to what extent commercial letters of
confirmation will have effect under the Convention. The issue was addressed
several times,[189]
but unlike the Hague Conference, it was not possible, during the discussions on
the recognition of trade usages, to reach an agreement on whether [page
56] the German rules on commercial letters of confirmation were applicable
as usages. On the contrary, from the wording of Article 9, it must be assumed
that the letter of confirmation will be effective only if the relevant business
customs exist between the parties of that particular branch of trade in
international transactions. On the other hand, it cannot be assumed [190]
that the Uniform Law for International Sales, by limiting the formation of
contracts to those created by an offer followed by an acceptance, has left other
possibilities, such as the German laws on letters of confirmation, to the
discretion of domestic laws applicable by virtue of conflict rules.[191]
Otherwise other domestic formation provisions, unrelated to offer and acceptance
would also be applicable, and the desired unification and legal certainty would
be endangered. In my opinion, Article 7(1) forbids such a "fragmentation" of the
law governing the formation of the contract. The entire process of contract
formation is governed by CISG.
A Belgian proposal [192]
concerning requirements of official permits did not win the necessary
support. As far as governmental or judicial approval is required for the
validity of a contract or of particular obligations - e.g., an export license,
etc. - it is a question governed by domestic law on the basis of Article 4(a).
This also applies to the time the contract takes effect, in the event that the
required approval is not retroactive.[193]
Finally, the Conference rejected a proposal by the German Democratic Republic
which would have introduced a general culpa in contrahendo (=
precontractual) liability.[194]
The proposal was especially intended to cover those cases in which contract
negotiations have already progressed so far that one side, relying on the belief
that a contract would materialize, has made considerable expenditures. Because
of its general wording, however, the proposed rule could not have been limited
to such cases. First, it would have affected a number of problems which arise
outside the Uniform Law for International Sales, for example the liability for
the invalidity of the contract caused by neglect of form requirements, the
liability of an agent without authority and damages in case of avoidance for
mistake. For some individual matters governed by the Convention, it would have
raised the difficult question of the relation between this liability and the
remedies and rules of CISG, e.g., for lack of conformity and for revocation of
an offer. Hence, the motion by the German Democratic Republic failed. Damages
caused by one party to the other in the course of contract negotiations,
therefore, remain subject to regulation by the domestic law applicable according
to conflict rules. In this field, domestic laws offer quite different legal
bases [194a]
for liability.[195]
[page 57]
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FOOTNOTES
189. Cf. A/Conf. 97/C.1/SR.5 at 4 § 18 (= O.R. 256). 191. But see Huber at 449-450. 192. A/Conf. 97/C.1/L.89 (= O.R. 98). 194. A/Conf. 97/C.1/L.95 (= O.R. 295). 194a. See also Honnold, Commentary § 147. (...)
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