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Reproduced with the permission from 27 American Journal of Comparative Law (1979) 311-323

[This is a commentary on provisions on Formation of the contract, contained in the 1978 Draft. Except as indicated by an Editor's note added to this text, there are only minimal differences between the 1978 Draft provisions on Formation of the contract and the provisions on Formation of the contract contained in the CISG.]

excerpt from

Problems of Unifying Law on the Formation of Contracts for the International Sale of Goods

Gyula Eörsi

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"Acceptances" that Deviate

We now turn to the effect of a mismatch between the terms of offer and acceptance -- a problem that sometimes emerges from the so-called Battle of the Forms.

Art. 17(1) [became CISG art. 19(1)] of the Draft Convention opens with the classic general rule that an "acceptance" containing "additions, limitations or other additions" is a rejection. But para. (2) (closely following art. 7(2) of ULF) lays down this important exception:

"(2) However, a reply to an offer which purports to be an acceptance but which contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance unless the offeror objects to the discrepancy without undue delay. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance."

In UNCITRAL, opinions diverged widely over this provision. Some believed that the provision was required by contemporary trade practices. Others thought that an acceptance must be in complete agreement with the offer and, that, in any event, the words "materially alter" were too vague. A third group of delegations tried to minimize the vagueness by a modification of the wording.[30]

The result was a compromise. Paragraph (2) was retained, but a new para. (3) was added:

"(3) Additional or different terms relating, inter alia, 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, unless the offeree by virtue of the offer or the particular circumstances of the case has reason to believe that they are acceptable to the offeror."

As may be seen, the new para. (3) reduces the vagueness, and also the sphere of application of the preceding rule, while the exception at the end of the paragraph preserves the possibility of continued life for the attempt to give effect to transactions in spite of a mismatch between offer and acceptance.

[Editor's note: The exception at the end of the paragraph ("unless the offeree by virtue of the offer or the particular circumstances of the case has reason to believe that they are acceptable to the offeror") does not appear in the CISG; it was deleted at the 1980 Vienna Diplomatic Conference.]

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FOOTNOTES

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30. A/CN.9/SR.199, paras. 21-34.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999
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