Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94
Martin Karollus [*]
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German law contains rather rigid principles regarding Kaufmännisches Bestätigungsschreiben (confirmation notices) which differ substantially from the laws of most other countries. Under German law, a party may send to the other party a notice purportedly confirming the (alleged) content of the contract that actually deviates from the contract. If the other party does not contest this confirmation, the contract is irrefutably regarded as having the content of the confirmation note. The other party cannot argue that the contract is different from the confirmation notice or that the contract had not been formed. One gets the impression that confirmation notes are often used intentionally to change the contract, and especially to enforce general conditions not agreed on before [LG Baden-Baden 14 August 1991]. Many foreign lawyers suspected that German courts would try to incorporate these principles into their application of the CISG.
However, German courts do not seem to decide in this manner. The OLG Köln, for example, recently stated that the confirmation notice principles do not apply under the CISG [OLG Köln 22 February 1994]. Failure to respond to a confirmation notice has no effect on the contract under the CISG. The notice can only be used as evidence. While the German principles on confirmation notices could be applicable as a usage under CISG Article 9, the decision of the OLG Köln shows that German courts are not prepared to accept such a usage merely because one contracting party comes from Germany.
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* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.
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109. For a detailed analysis of German, French, Austrian, and Swiss Law, as well as the CISG, see Michael J. Esser, Die letzte Glocke zum Geleit?, 29 Zeitschrift für Rechtsvergleichung (ZfRV) 167 (1988).
110. In fact, German courts do not recognize confirmation notices when used intentionally. Of course, it may be difficult to prove such an intention.
111. See Judgment of Aug. 14, 1991, LG Baden-Baden, 1992 RIW at 63.
112. Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973. See Peter Schlechtriem, Kurzkommentar, 1994 EWiR 867, 868 (discussing the judgment and agreeing with its conclusion).
113. See Schlechtriem, supra note 112, at 868.
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