| See also: | UNCITRAL Digest cases plus added cases Above plus annotations and added material |
The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods [*]
A/CN.9/SER.C/DIGEST/CISG/19 [8 June 2004]
Reproduced with the permission of UNCITRAL
| ARTICLE 19
(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. (2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. (3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. |
DIGEST OF ARTICLE 19 CASE LAW
1. Article 19 qualifies article 18 by providing that a purported acceptance which modifies the offer is a rejection of the offer and is considered instead to be a counter-offer.[1] Paragraph (1) of article 19 states this basic proposition, while paragraph (2) makes an exception for immaterial modifications to which the offeror does not object. Paragraph (3) lists matters which are considered material.
2. Paragraph (1) provides that a reply to an offer that adds to, limits or otherwise modifies the offer is a rejection of the offer. Several decisions have reviewed the parties' exchange of multiple communications and have concluded, without specifying the modifications, that at no point was there an acceptance of an offer.[2]
3. Paragraph (3) lists matters as to which modifications are to be considered material. Modifications of the following listed matters have been found to be material: price;[3] payment;[4] quality and quantity of the goods;[5] place and time of delivery;[6] settlement of disputes.[7] However, notwithstanding paragraph (3) one decision has stated that modifications of matters listed in that paragraph are not material if the modifications are not considered material by the parties or in the light of usages.[8]
4. Paragraph (2) provides that a reply with immaterial modifications of the offer constitutes an acceptance unless the offeror notifies the offeree without undue delay that the offeror objects to the modifications.[9] One court has stated that modifications that favour the addressee are not material and do not have to be accepted expressly by the other party.[10]
5. The following modifications have been found to be immaterial: a reply that modified an offer by stating that the price would be modified by increases as well as decreases in the market price and deferring delivery of one item;[11] seller's standard term reserving the right to change the date of delivery;[12] a request that buyer draft formal termination agreement;[13] a request to treat the contract confidential until the parties make a joint public announcement;[14] contractual requirement that buyer must reject goods delivered within stated period.[15]
6. The Convention does not have special rules to address the issues raised when a potential seller and buyer each uses standard contract terms prepared in advance for general and repeated use (the so-called "battle of the forms"). Several decisions conclude that the parties' performance notwithstanding partial contradiction between their standard terms established enforceable contracts.[16] As for the terms of these contracts, several decisions would include those terms on which the parties substantially agreed and replace with the default rules of the Convention those standard terms that, after appraisal of all the terms, conflict,[17] while several other decisions give effect to the standard terms of the last person to make an offer accepted by subsequent performance of the other party.[18] Another decision refused to give effect to either set of standard terms: the seller was not bound by the buyer's terms on the back of the order form in the absence of a reference to them on the front of the form, while the seller's terms were in a confirmation letter sent after the contract was concluded and the buyer did not accept them by its silence.[19]
FOOTNOTES
* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.
[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]
1. But see CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>] (the reply must satisfy the definiteness requirements of art. 14(1) in order to be a counter-offer).
2. See, e.g., CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (no agreement on termination of contract) (see full text of the decision); CLOUT case No. 173 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 17 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970617h1.html>] (no clear agreement to extend distribution contract).
3. [AUSTRIA Oberster Gerichtshof [Supreme Court] 9 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>]; CLOUT case No. 417 [UNITED STATES Magellan International v. Salzgitter Handel Federal District Court [Illinois] 7 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991207u1.html>] (see full text of the decision); CLOUT case No. 193 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 July 1996, available online at <http://cisgw3.law.pace.edu/cases/960710s1.html>] (see full text of the decision).
4. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (time of payment) (see full text of the decision).
5. CLOUT case No. 291 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 23 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950523g1.html>] (delivery of fewer pairs of shoes than ordered); CLOUT case No. 135 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 31 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950331g1.html>] (difference in quality of glass test tubes); CLOUT case No. 121 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 4 March 1994, available online at <http://cisgw3.law.pace.edu/cases/940304g1.html>] (acceptance ordering additional kinds of screws); CLOUT case No. 227 [GERMANY Oberlandesgericht [Appellate Court] Hamm 22 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920922g1.html>] (acceptance offering to sell "unwrapped" bacon rather than bacon).
6. CLOUT case No. 413 [UNITED STATES Calzaturificio Claudia v. Olivieri Footwear Federal District Court [New York] 6 April 1998, available online at <http://cisgw3.law.pace.edu/cases/980406u1.html>] (delivery terms) (see full text of the decision); CLOUT case No. 133 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g1.html>] (time of delivery) (see full text of the decision).
7. CLOUT case No. 242 [FRANCE Cour de Cassation [Supreme Court] 16 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980716f1.html>] (differing choice-of-forum clause); CLOUT case No. 23 [UNITED STATES Filanto v. Chilewich Federal District Court [New York] 14 April 1992 available online at <http://cisgw3.law.pace.edu/cases/920414u1.html>] (inclusion of arbitration clause) (see full text of the decision).
8. CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>].
9. [BELGIUM Tribunal [District Court] Nivelles 19 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950919b1.html>].
10. CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof [Supreme Court] 20 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970320a3.html>].
11. CLOUT case No. 158 [FRANCE Cour d'appel [Appellate Court] Paris 22 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920422f1.html>], affirmed, CLOUT case No. 155 [FRANCE Cour de Cassation [Supreme Court] 4 January 1995, available online at <http://cisgw3.law.pace.edu/cases/950104f1.html>] (affirming with no specific reference to the Convention) (see full text of the decision).
12. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (delivery clause interpreted in accordance with art. 33(c)).
13. [CHINA CIETAC Arbitration Award case No. 75 of 1 April 1993; available at <http://cisgw3.law.pace.edu/cases/930401c1.html>].
14. [HUNGARY Fováosi Biróság [Metropolitan Court] Budapest 10 January 1992, available online at <http://cisgw3.law.pace.edu/cases/920110h1.html>] English-language trans. available, reversed on other grounds, CLOUT case No. 53 [HUNGARY Legfelsóbb Biróság [Supreme Court] 25 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920925h1.html>].
15. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>] (see full text of the decision).
16. [GERMANY Bundesgerichtshof [Federal Supreme Court] 9 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020109g1.html>]; [GERMANY Landgericht [Lower Court] Kehl 6 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951006g1.html>] (parties' performance established that parties either derogated from art. 19 or waived enforcement of conflicting standard terms); CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>] (buyer accepted standard terms that differed from its offer by performing contract) (see full text of the decision).
17. [GERMANY Bundesgerichtshof [Federal Supreme Court] 9 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020109g1.html>]; [GERMANY Landgericht [Lower Court] Kehl 6 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951006g1.html>] (enforcing only standard terms in common).
18. CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>] (by performing buyer accepted standard terms that differed from its offer); [ICC Court of Arbitration, case No. 8611 of 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html>] Unilex (if standard terms considered counter-offer recipient accepted by taking delivery of goods with invoice to which standard terms are attached). See also [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 19 November 1996, available online at <http://cisgw3.law.pace.edu/cases/961119n1.html>], (seller's acceptance stated that its standard terms applied only to extent they did not conflict with buyer's standard terms).
19. CLOUT case No. 203 [FRANCE Cour d'appel [Appellate Court] Paris 13 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951213f1.html>].
Pace Law School Institute of International Commercial Law - Last updated July 21, 2005