LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG Article 18 with ULF provisions
  
• Comments on the matchup
  
• ULF case precedents aiding in interpretation of CISG Article 18

     CISG Article 18                    ULF Article 2(2), 6, 8 
 
1. A statement made by or             ULF Article 2(2)     
other conduct of the offeree 
indicating assent to an offer     ...a term of the offer stipulating 
is an acceptance. Silence or      that silence shall amount to 
inactivity does not in itself     acceptance is invalid. 
amount to acceptance. 
                                         ULF Article 6 
2. An acceptance of an offer 
becomes effective at the          1. Acceptance of an offer 
moment the indication of          consists of a declaration 
assent reaches the offeror.       communicated by any means 
An acceptance is not              whatever to the offeror. 
effective if the indication 
of assent does not reach the      2. Acceptance may also consist 
offeror.  An acceptance is        of the dispatch of the goods or 
not effective if the              of the price or of any other act 
indication of assent does         which may be considered to be 
not reach the offeror within      equivalent to the declaration 
the time he has fixed or, if      referred to in paragraph 1 of 
no time is fixed, within a        this Article either by virtue of 
reasonable time, due              the offer or as a result of 
account being taken of the        practices which the parties have 
circumstances of the              established between themselves 
transaction, including the        or usage. 
rapidity of the means of 
communication employed                ULF Article 8   
by the offeror.  An oral          1. A declaration of acceptance 
offer must be accepted            of an offer shall have effect 
immediately unless the            only if it is communicated to 
circumstances indicate            the offeror within the time he 
otherwise.                        has fixed or, of no such time is 
                                  fixed, within a reasonable time, 
3. However, if, by virtue         due account being taken of the 
of the offer or as a result       circumstances of the transaction, 
of practices which the            including the rapidity of the means
parties have established          of communication of the 
between themselves or of          employed by the offeror, and 
usage, the offeree may            usage.  In the case of an oral 
indicate assent by                offer, the acceptance shall be 
performing an act, such as        immediate, if the circumstances 
one relating to the dispatch      do not show that the offeree 
of the goods or payment of        shall have time for reflection. 
the price, without notice to 
the offeror, the acceptance is    2. If a time for acceptance is 
effective at the moment the       fixed by an offeror in a letter 
act is performed, provided        or in a telegram, it shall be 
that the act is performed         presumed to begin to run from 
within the period of time         the day the letter was dated or 
laid down in the preceding        the hour of the day the telegram 
paragraph.                        was handed in for dispatch. 
 
                                  3. If an acceptance consists of 
                                  an act referred to in paragraph 
                                  2 of Article 6, the act shall have 
                                  effect only if it is done within 
                                  the period laid down in paragraph 
                                  1 of the present Article. 
 

Comments on the match-up

Go to views on citing ULIS or ULF cases in CISG proceedings

Illustrative ULIS case precedents that can aid in the interpretation of CISG Article 18

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 ULIS 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 18.

• An acceptance does not have to adopt any specific wording. . . . The words "confirmation of order" will often be an indication of acceptance. 
  • OLG Hamm 17 December 1981 in Schlechtriem/Magnus, International Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF], Baden-Baden: Nomos (1987), Art. 6 [ULF] No. 11 [127 n.11]

• If the seller's "confirmation form" is intended to indicate his offer, the buyer's signature on that form may be a statement of acceptance.
  • OLG Koblenz 23 December 1998 in Schlechtriem/Magnus, Art. 6 [ULF] No. 14 [128 n.11]

• By providing that the "indication of assent" becomes effective only when it reaches the offeror, Article 18(2), first sentence, makes that clear for both forms of assent referred to in Article 18(1), first sentence.
  • OLG Frankfurt 27 November 1979 in Schlechtriem/Magnus, Art. 6 [ULF] No. 8 (delivery of the goods as acceptance of an offer (order) results in the conclusion of a contract only when the goods reach the buyer, except where the conditions for the exception in Art. 6(2) ULF exist (no need for acceptance to reach the offeror) [129 n.22]

• Examples of declaratory conduct indicating assent include:
  • LG Dortmund, RIW 1981, 854 et seq. (dispatch of the goods -- even partial deliveries) [129 n.24]

  • LG Landshut, NJW 1977, 424 et seq. (acceptance or processing of the goods) [129 n.26]

• Other examples include the cashing of a cheque sent with the offer. The use of a power of direct debit may also be understood as an expression of acceptaance.
  • RGZ 103, 312 et seq. (where admittedly an invoice and delivery had already been requested in the offer) [129 n.31]

    As to cheques:

  • BGH NJW-RR 1986, 415 [129 n.31]

  • OLG Hamburg, ZILP 1988 et seq. [129 n.31]

• As experience with ULF has shown, acceptance by conduct indicating assent will frequently occur where the parties' roles have changed pursuant to Article 19(1), that is to say, where, in response to a modifying offer constituting a counter-offer, the original offeror replies as acceptor by performing services or other conduct amounting to acceptance.
  • LG Landshut 14 July 1976 in Schlechtriem/Magnus, Art. 6 [ULF] No. 3 (acceptance and processing of the goods) [130 n.37]

  • OLG Hamm 6 April 1978 in Schlechtriem/Magnus, Art. 6 [ULF] No. 4 (request for delivery of all completed items) [130 n.37]

  • OLG Hamm 7 December 1978 in Schlechtriem/Magnus, Art. 6 [ULF] No. 5 (partial deliveries) [130 n.37]

• Time limits using indefinite terms will be in particular need of interpretation (e.g. "within the time needed to examine this offer", "within the usual period for consideration", "immediate reply"). Pursuant to [CISG] Article 8, such interpretation must also take into account the circumstances and characteristics of the intended contract (the scope of the transation), the means of communication available to the addressee and -- Article 8(3) -- the practices of the parties, etc. When applying the CISG it will therefore not always be the case that, if an offeree is not at home during the day, the words "require an immediate reply upon receipt of this letter" will always be understood as requiring an answer by the next post.
  • RGZ 50, 191 et seq. 195 [132 n.53]

• Examples of conduct indicating assent which, on the basis of special rules in Article 18(3) take effect directly as an acceptance include acts for which it is not normally considered to be necessary for an indication of assent to reach the offeror (e.g. where the goods are processed or delivered directly to a third party).
  • RGZ 129, 109 et seq., 113 et seq. [134 n.73]

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