LEGISLATIVE HISTORY

"The rules under Part II of the CISG [Articles 14 through 24] are based largely on the Uniform Law on the Formation of Contracts for the International Sale of Goods [ULF]. . . . It will have to be taken into consideration . . . that courts of those countries which were parties to the Hague Convention will resort to decisions regarding the ULF when it comes to interpreting the CISG insofar as the old rules were retained . . ." Fritz Enderlein/Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods (Oceana 1992) 82.

CISG ANTECEDENTS

• Match-up of CISG Article 14 with ULF provisions

• Comments on the match-up

• ULF case precedents aiding in the interpretation of CISG Article 14

     CISG Article 14                ULF Article 4
 
1. A proposal for concluding  1. The communication which 
a contract addressed to one   one person addresses to one 
or more specific persons      or more specific persons with 
constitutes an offeror to be  the object of concluding a 
bound in case of acceptance.  contract of sale shall not 
A proposal is sufficiently    constitute an offer unless it is 
definite if it indicates the  sufficiently definite to 
the goods and expressly or    permit the conclusion of 
implicitly fixes or makes     the contract by acceptance 
provision for determining     and indicates the intention 
the quantity and the price.   of the offeror to be bound. 
 
                              2. This communication may be 
2. A proposal other than      interpreted by reference 
one addressed to one or       to and supplemented by 
more specific persons is      the preliminary negotiations, 
to be considered merely       any practices which the 
as an invitation to make      parties have established 
offers, unless the contrary   between themselves, usage and 
is clearly indicated by the   any applicable legal rules for 
person making the proposal.   contracts of sale. 

Comments on the match-up

Illustrative ULF case precedents that can aid in the interpretation of CISG Article 14

The author of this chapter is Peter Schlechtriem, Professor University of Freiburg. [Bracketed] material following each case citation identifies the page of his chapter and the footnote he provides. Click here for schedule of abbreviations contained in his case citations.

Interpretation and ULF case support

The material we have excerpted pertains only to case law under the Uniform Law that preceded the CISG -- jurisprudence that parties have regarded as relevant because the CISG drafting process commenced with that Law. See the cited chapter of the Schlechtriem Commentary for a comprehensive analysis of CISG Article 14.

The phrase "sufficiently definite"

• A number unaccompanied by an indication of the relevant currency would in itself be too indefinite to determine the price in a cross-border transaction, but it will usually be possible, by interpretation, to establish the currency of payment.
  • LG Heidelberg 21 April 1981 in Schlechtriem/Magnus, Internationale Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF], Baden-Baden: Nomos (1987), Art. 56 [ULIS No. 3 [106 n.14]

  • OLG Koblenz 21 January 1983, ibid, Art. 56 [ULIS] No. 7 [106 n.14]

  • OLG Koblenz 1 March 1985, ibid, Art. 56 [ULIS] No. 10 [106 n.14

• Only in rare cases in which an offer without a price is a vital component of the agreement, but interpretation of the offer points to neither a fixed nor a determinable price and the parties have not indicated their agreement by performing the contract, or where, despite agreement being reached on other matters, no price is determinable under Article 55, will it have to be concluded that no contract was formed.
  • BGH RIW 1990, 749, 750 (on Art. 57 ULF) [110 n.48]

Related interpretive issues

• A detailed communication which sets a time-limit for a reply may be understood to be an offer; an order form placed before the buyer by the seller's representative is an invitation, but also an offer, so that the buyer's signature immediately concludes a contract.
  • LG Heidelberg 30 January 1979 in Schlechtriem/Magnus, Art. 22 [ULIS] no. 2 [111 n.63]

• The CISG does not lay down particular requirements for the incorporation of standard business terms into a contract. The necessary rules are to be developed using Article 8. There is no room in this respect for recourse to domestic law via choice of law rules.
  • For a contrary view, see OLG Koblenz IPRax 1994, 46, 47 (on ULF) [113 n.82]

• A reference to standard terms not included with the offer must be so clear that a reasonable person "in the shoes of the recipient" would comprehend it. Moreover the addressee must also be in a position to appreciate the content of those terms and conditions, because a "reasonable person of the same kind" as the offeree must have understood the statement "in the same circumstances" and thus must at least have had an opportunity to become aware of and understand their content. What cannot reasonably be known cannot be understood and interpreted. In that context, the language in which the reference to standard terms is made and the language in which they are drafted may be significant.
  • OLG Hamm NJW 1983, 523 (a reference to standard terms and conditions in an order form constituting an offer led to the incorporation of standard terms sent only after the order form had been countersigned by the offeree. The court found that there had been the necessary comprehensible reference to the standard terms for the benefit of the foreign party, because the language of the parties negotiations -- as shown by their correspondence, order forms, and invoices -- had been German) [113 n.84]

  • See also OLG Stuttgart, IPRax 1988, 293 et seq. (held that a reference in German to general terms and conditions was not sufficient where the language of negotiation was English) [113 n.84]

• The need to take into account the understanding which a reasonable offeree of the same kind as the recipient of the offer whould have in the same circustances may itself prevent unusual or unclear standard clauses, purported to be incorporated into the offer by reference, from being within the "understanding" of the recipient.
  • Rb Roermond (Netherlands) 12 June 1975 in Schlechtriem/Magnus, Art. 6 [ULF] No. 2 (a clause making a reservation as to actual harvest achieved, which had not been expressly agreed, would, if hidden in the seller's terms of delivery and payment, be a substantive part of the offer which could not be implied into the contract [113 n.85]

  • BGH WM 1933, 12 et seq., 14 (sets out criteria which are also valid when applying Art. 8(2) CISG: a clause is unusual where its provisions clearly depart from the other party's expectations and where in the circumstances that party could not really have expected to be confronted with such a clause; the court found that it was generally not a question of the state of knowledge of the particular party, but of the understanding which a person concluding such contracts might be expected to have, unless the customer's disappointed expectation was based precisely on particular circumstances existing when the contract was concluded) [113 n.85]

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