LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG Article 19 with ULF provisions

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  ULF case precedents that can aid in interpretation of CISG Article 19

     CISG Article 19                       ULF Article 7
                                                                  
1. A reply to an offer which          1. An acceptance containing 
purports to be an acceptance          additions, limitations or other 
but contains additions,               modifications shall be a 
limitations or other modifications    rejected of the offer and shall 
is a rejection of the offer and       constitute a counter-offer. 
constitutes a counter-offer. 
                                      2. However, a reply to an offer 
2. However, a reply to an offer       which purports to be an 
which purports to be an               acceptance but which contains 
acceptance but contains               additional or different terms 
additional or different terms         which do not materially alter the
which do not materially alter the     terms of the offer shall constitute 
terms of the offer constitute an      an acceptance unless the 
acceptance, unless the offeror,       offeror promptly objects to the 
without undue delay, objects          discrepancy; if he does not so 
orally to the discrepancy or          object, the terms of the contract
dispatches a notice to that effect.   shall be the terms of the 
If he does not so object, the terms   offer with the modifications 
of the contract are the terms of      contained in the acceptance. 
the offer with the modification 
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 or delivery, extent of the      
party's liability to the other or     
the settlement of disputes are      
considered to alter the terms of   
the offer materially.       

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

Illustrative ULF case precedents that can aid in the interpretation of CISG Article 19

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 19.

• Even if CISG 19(3) had not characterized them as such, matters listed would normally be considered to be "material". For example:

a demand for payment in advance;
• OLG Hamm 21 March 1979 in Schlechtriem/Magnus, Internationale Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF], Baden-Baden: Nomos (1987), Art. 7 [ULF] No.4 (on "price and payment") [140 n.20]

a change in the time of delivery ("place and time of delivery);

• OLG Hamm 6 April 1978 in Schlechtriem/Magnus, Art. 7 [ULF] No. 2 [140 n. 21]

• OLG Hamm 17 December 1981, ibid, Art. 7 [ULF] No. 8 [140 n.21]

  but see:

• OLG Frankfurt, IPRax 1982, 242 (held that it was possible for this to be an immaterial alteration) [140 n.21]

• A reference to standard business terms will normally be regarded as a material alteration, irrespective of whether or not they relate to matters listed in CISG Article 19(3).
  • LG Landshut, NJW 1977, 2033 et seq. [141 n.30]

    but see:

  • Rb Arnhem (Netherlands) 23 December 1982 in Schlechtriem/Magnus, Art. 7 [ULF] No. 10 (the buyer's offer was not materially altered where the seller referred in his acceptance to his standard terms which had already been sent in connection with previously performed transactions and which contained a clause stating that all deliveries by the seller took place only on the basis of those terms) [141 n.30]

• The rejection of a term stipulating the packaging of bacon "in bags" and the offer of "unpacked" bacon instead has been held to represent a materially different term.
  • OLG Hamm (19 U 97/91) 22 September 1992, cited by Piltz, NJW 1994, 1101, 1103 n.31 [142 n.41]

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