(. . .)
[United Kingdom (A/CONF.97/C.1/L.48):
Revise subparagraph (a) of paragraph (2) to read as follows:
"(a) if, and to the extent that, it indicates that it is irrevocable. The stating of a fixed time for acceptance does not of itself indicate that and offer is irrevocable."]
14. Mr. FELTHAM (United Kingdom), introducing his delegation's amendment to paragraph 2 of article 14 (A/CONF.97/C.1/L.48), said that it was not linked to the United Kingdom amendment to paragraph 1. It was intended to take account of the legal effect in most common law countries of stating a fixed time for acceptance of an offer. Such a step, unless there were other considerations which made for irrevocability, merely indicated a period during which the offer might remain open and after which it lapsed. Traders in common law countries would be exposed to a trap if, under the Convention, indicating a fixed period without any mention of irrevocability, brought about a situation where an offer was deemed to be irrevocable. They should be protected by a provision stating that such was not the case unless there was some other clear indication that the offer was intended to be irrevocable.
15. Mr. AOYAMA (Japan) said his delegation supported the original text of paragraph 2 on the understanding that when the offeror fixed a time for acceptance, the offer was irrevocable during that time. It could not accept an amendment.
16. Mr. ROGNLIEN (Norway) suggested that there were two possible solutions. It might be left to the courts to decide what the offeror's intention with regard to the irrevocability of the offer had been when he fixed a time for acceptance. Alternatively, there might be a presumption one way or the other. In his delegation's view, the presumption should be that the offer was irrevocable, but alternatively it could be the other way, as the United Kingdom amendment proposed.
17. Mr. BENNETT (Australia) said he supported the United Kingdom amendment for the reasons already given by the United Kingdom representative.
18. Mr. SAMI (Iraq) supported the United Kingdom amendment; the offeror should be given an opportunity to withdraw.
19. Mr. FARNSWORTH (United States of America) expressed his delegation's concern at the Japanese interpretation of the original text of paragraph 2. If the United Kingdom amendment was rejected, it should be left to the courts to interpret the original text.
20. Mr. SZÁSZ (Hungary) said that his delegation was satisfied with the original text, which included an element of compromise.
21. Mr. DATE-BAH (Ghana) supported the United Kingdom amendment. In general, the Convention had chosen the principle of revocability and it would make the task of traders easier if that principle was consistently adopted. Where an offeror in a common law jurisdiction sets a time period for the lapse of the offer, without promising to keep the offer open, it would be a trap for him if he were held to have made an irrevocable offer.
22. Mr. GHESTIN (France) considered that the offer should be irrevocable since the offeree might otherwise be put to unwarrantable expense and trouble. The offeror fixed the period for acceptance and should be prepared to abide by it.
23. Mr. GORBANOV (Bulgaria) said that his delegation opposed the United Kingdom amendment for the reasons given by the French representative.
24. Mr. HERBER (Federal Republic of Germany) wondered whether a vote on the United Kingdom amendment would solve the problem. The discussion had shown that the original text was capable of different interpretations. His delegation's view, based on the English text, was the same as that of the Japanese delegation, but the United States delegation had suggested that paragraph 2 (a) might be interpreted differently. If the United Kingdom amendment was rejected, the Drafting Committee should be asked to revise the text to make it perfectly clear that the offer was irrevocable in the case in question.
25. The CHAIRMAN put to the vote the United Kingdom amendment to paragraph 2 (A/CONF.97/C.1/L.48).
26. The amendment was rejected by 31 votes to 7.
27. The CHAIRMAN invited the Committee to consider the proposal of the Federal Republic of Germany that the text should be redrafted to state unambiguously that fixing a time for acceptance of itself made the offer irrevocable.
28. Mr. KHOO (Singapore) said that the statements of delegations, confirmed by their votes, showed that the majority preferred that offers be irrevocable during the time fixed for their acceptance. Such being the case, he agreed with the representative of the Federal Republic of Germany that paragraph 2(a) was ambiguous. The formulation in article 5, paragraph 2 of ULF was much clearer.
29. Mr. DATE-BAH (Ghana) was in favour of the present text being retained as a compromise. It gave some flexibility to the courts. It would be undesirable to have irrevocability of offer imposed on two common law parties.
30. Mr. FARNSWORTH (United States of America) said it would be unfortunate to pursue any proposals which resulted in a change in the compromise which had been reached in UNCITRAL. An inflexible wording which imposed on two English-speaking common law parties an interpretation which belonged to another legal system would be unacceptable in the United States and his delegation would strongly oppose it.
31. Mr. MASKOW (German Democratic Republic) observed that the original text did not constitute a genuine compromise and was clearly open to different interpretations.
32. Mr. GHESTIN (France) said that a compromise grounded in ambiguity was undesirable. The French text was also somewhat unclear and he was disposed to support the proposal of the Federal Republic of Germany that the precise sense should be established along the lines that the majority of the Committee had approved by its vote.
33. Mr. HJERNER (Sweden) agreed that the original text represented a compromise but said he could not understand how it could be interpreted other than meaning that the offer was irrevocable for the period fixed for acceptance. However, two common law traders could avail themselves of article 7 [became CISG article 8 ] to agree upon another interpretation having regard to subjective intention. The paragraph could not be so interpreted in the case of one common law party and one civil law party. He was prepared to accept the text as it stood because he was confident that the courts could not fail to interpret it as supporting the irrevocability of the offer.
34. Mr. KRISPIS (Greece) considered that only one interpretation should be possible. It was not acceptable that one interpretation would apply when the parties to a contract were nationals of a common law country and another when those parties were nationals of a civil law country. Something of the kind could only be achieved by way of a reservation to the Convention. In the circumstances he fully supported the proposal of the representative of the Federal Republic of Germany.
35. Mr. FOKKEMA (Netherlands) said his country like others accepted the view that stating a fixed time for acceptance indicated that the offer was irrevocable. On the other hand, he could appreciate the position in the common law countries, and thought that efforts should be made to harmonize the law on that point. The essential principle was enshrined in article 7 [became CISG article 8 ], which indicated how the intent of the parties was to be determined. It was understandable that traders in a common law country would understand the situation differently from traders in a civil law country. He did not think it appropriate to lay down a hard-and-fast rule. It would be better for the courts to decide in individual cases how the provisions of article 7 [became CISG article 8 ] were to be interpreted in relation to the fixing of a time limit. All the Drafting Committee could usefully do would be to indicate a presumption in cases where the two parties belonged to different systems of law. He personally would prefer presumption of irrevocability, but would not favour a hard and fast rule.
36. Mr. POPESCU (Romania) said that under his country's system there was a fixed period of time for acceptance. He would interpret the provision in terms of a fixed time period, and would therefore prefer to retain the existing text.
37. Mr. FELTHAM (United Kingdom) explained that his delegation's purpose in proposing its earlier amendment had been to protect its traders when they were dealing with traders in civil law systems. He agreed with the United States representative that the existing text did allow for a situation in which, in dealings between traders in two common law countries, the stating of a fixed time limit did not necessarily indicate irrevocability. It would be unfortunate if the present text was so amended as to introduce the idea of an irrebuttable presumption of irrevocability, even between two parties who did not themselves intend it.
38. Mr. KHOO (Singapore) commented that the provisions of article 7 [became CISG article 8 ] were somewhat general, and that courts might have difficulty in reconciling them with the very explicit language of article 14 [became CISG article 16 ]. He considered it would be advisable to work out some provision for reservations and also to improve the text of paragraph 2(a) so as to make clear that when a fixed time was stated for acceptance, the offer was to be considered irrevocable.
39. Mr. BONELL (Italy) could not agree that the provision should be subject to reservations. It would be a strange state of affairs if traders had to find out whether the State of which the other party was a national had made a reservation in order to ascertain the implications of offers. He could not see any difficulty in applying the provision as it now stood.
40. The CHAIRMAN remarked there were two possible courses of action. The Committee could either accept the existing text, in which case the representative of the Federal Republic of Germany and other representatives would still be able to propose amendments in plenary, or it could continue the discussion, and refer the text to the Drafting Committee.
41. Mr. HERBER (Federal Republic of Germany) said that in the light of the discussion he would not press his proposal. It would be best to rely on the courts to find some reasonable common interpretation in cases of difficulty. Although he agreed with the representative of Singapore that article 5, paragraph 2 of ULF dealt with the same point more clearly, he would prefer for the present to leave the text unchanged and not refer it to the Drafting Committee, since there was a danger that that Committee would not simply clarify the text but would try to seek a further compromise, thereby wasting time.
(. . .)