Go to Database Directory || Go to Bibliography

Reproduced with permission from 23 International Lawyer (1989) 443-483

excerpt from

Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods

Alejandro M. Garro [*]

(. . .)

Binding Effect of an Acceptance that "Deviates" from the Offer

Mismatches between the terms of offer and acceptance are resolved differently by the legal systems. Not surprisingly, opinions diverged widely over this issue. Most delegates, including those from socialist countries, thought that an acceptance must be in complete agreement with the offer, so that the contract cannot come into being if the terms of the acceptance differ from those of the offer.[83] Because the common law and the Uniform Commercial Code have retreated from this "mirror-image" rule, delegates from common law countries were of the opinion that contemporary practices require that a contract be concluded unless the acceptance "materially" alters the terms of the offer.[84]

Attempting to bridge the gap between these two perspectives, article 19(1) of the Convention opens with the classic general rule that if the purported acceptance makes any addition or modification to the offer, the "acceptance" will operate as a rejection and counter-offer. As a compromise solution, article 19(2) lays down an important exception to this general principle. Where exchanged forms do not match, a contract is nonetheless concluded if the alterations do not "materially alter" the terms of the offer, unless the offeror prevents the formation of the contract by objecting. Because many thought that the words "materially alter" were too vague, a third paragraph was added to article 19, introducing a very narrow definition of "materiality."[85] Thus, the continued life of the contract is preserved in spite of a minor mismatch. This was a fair compromise between the strict socialist view that an acceptance that deviates from the offer amounts to a rejection, and the more flexible view of Western countries that considers the contract as concluded if the acceptance contains minor additions or limitations.

(. . .)

Go to entire text of Garro commentary


* Alejandro M. Garro, Lecturer in Law, Columbia University. This paper was submitted to the 81st Annual Meeting of the American Association of Law Libraries, June 26-29, 1988.

(. . .)

83. Eörsi, supra note 4, at 342.

84. UCC 2-207(2)(b) (an additional term in the acceptance becomes part of the contract between merchants unless it materially alters the offer). See also Restatement Contracts, supra note 42, 69 (1979) (where the acceptance is not conditional, the acceptance is effective and the additional or different terms are to be construed as proposals for modification of the contract). See generally Honnold, The New Uniform Law for International Sales and the U.C.C.: A Comparison, 18 Int'l Law. 21, 26 (1984); Comment, The United Nations Convention on Contracts for the International Sale of Goods: Contract Formation and Battle of Forms, 21 Colum. J. Transnat'l L. 529 (1983); Comment, Contract Formation Under the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code, 3 Dick. J. Int'l L. 107 (1984).

85. Under Convention, supra note 3, art. 19(3), terms relating to price, payment, quality, place and time of delivery, extent of one party's liability, and settlement of disputes, are all deemed material. Only minor variations, such as changing designation of the vessel, or packaging of the goods are nonmaterial. See Farnsworth, Formation of Contract, in International Sales, supra note 13, 3-04, at 3-16.

(. . .)

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

Go to Database Directory || Go to CISG Table of Contents