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LEGISLATIVE HISTORY

Legislative history of CISG article 19: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 17

(1) A reply to an offer which purports to be an acceptance containing 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 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 modification contained in the acceptance.
 

(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 they are acceptable to the offeror.

  

CISG 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.


Editorial comments

The Secretariat Commentary on 1978 Draft article 17 is only partially relevant to CISG article 19. The key difference between the texts of these articles is the deletion from paragraph (3) of the phrase "unless the offeree by virtue of the offer or the particular circumstances of the case has reason to believe they are acceptable to the offeror". The Summary Records of Committee Meetings of the Vienna Diplomatic Conference include the following comments on this subject:

"Mr. STALEV (Bulgaria)... explained that article 16(1) and article 17(1) [the 1978 Draft counterparts to CISG articles 18(1) and 19(1)] established a fundamental rule and a rational principle, i,e. that there could be no contract without agreement by the parties on all points. However, that fundamental rule was almost nullified by the exceptions given in paragraphs 2 and 3...the result being that a contract could be concluded implicitly when there had been no agreement on the essential elements of sale as stated in the first [part] of paragraph 3. That solution sacrificed the fundamental considerations of international trade relations -- certainty and security -- to less important considerations, such as the flexiblity of rules and equity in individual cases. It also jeopardized the interests of less experienced enterprises, which might not refuse an offer in good time. His delegation therefore proposed that paragraphs 2 and 3 should be deleted and, if that proposal were not accepted, recommended that at least the last part of paragraph 3 from 'unless the offeree...' should be deleted". (Official Records, p. 284.)

The significance of the deletion of the last part of paragraph (3) is illustrated by the following Secretariat Commentary on 1978 Draft article 17, the last sentence of which does not fit CISG article 19.

"11. Additional or different terms which are of routine significance to the personnel engaged in ordering or selling the goods may constitute material alterations of the offer from a legal point of view. Article 17(3) [of the 1978 Draft], by way of example, sets out a non-exhaustive list of provisions in respect of which any additional or different term in the purported acceptance is considered to be material. Additional or different terms in respect of such a provision would not, however, be considered to be material alterations if the 'offeree by virtue of the offer or the particular circumstances of the case has reason to believe they are acceptable to the offeror'". [This is the phrase that was deleted.]


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG