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Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28

excerpt from

Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany

Peter Schlechtriem [*]

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Art. 14 describes the requirements of an offer and thereby of a contract as well. It requires that in order for a proposal for concluding a contract to be considered an offer, it must be sufficiently definite which means it must expressly or implicitly fix or make provisions for the determining of the quantity and the price of the goods. The requirement of a certain price was especially the cause of much debate in the preparation of the Convention and already provides a quarry for many scholarly contributions and dissertations. It apparently contrasts with Art. 55 which obviously is based on the assumption that a contract can be concluded without determining the price.[56] This contradiction slipped into the Convention because the Scandinavian states were not interested in the formation-of-contracts ([Part]II) of the Convention, but were very eager to have a provision like Art. 55 for contracts without an agreement about the price. I will not bore you with a detailed description of the many theories advanced to explain the meaning of Art. 14 and the alleged or denied collision with Art. 55. I do hope that in practice, the problem of the definite price -- pretium certum -- will be of no importance. First of all, it is sufficient if the parties have implicitly provided a method for determining the price. Reference to price lists, to the market price at a given moment or even to the determination of the price by some expert is certainly sufficient. Since the parties, under Art. 6. can derogate from Art. 14 and its requirement of a certain price, it is possible that the parties intended to conclude a binding contract without making provisions for the price thereby derogating from Art. 14(1). Such an intention can be inferred particularly from the behavior of the parties, for example if they perform the contract regardless of the omission of the price. The horror example often used in Vienna. that the captain of a ship stranded with a broken shaft orders this shaft from the shipyard without bickering about the price and later contends that there was no valid contract for lack of a certain price is just that: a horror tale which is basically false. Only in very exceptional cases may the omission of the price lead to the conclusion that a proposal for concluding a contract was not yet a valid offer, and that the declaration of acceptance, which also does not mention the price, cannot be treated as a binding offer either.

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FOOTNOTES

* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.

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56. But see Bucher, Preisvereinbarung als Voraussetzung der Vertragsgültigkeit beim Kauf-Zum angeblichen Widerspruch zwischen Art. 14 und Art. 55 des "Wiener Kaufrechts", in Festschrift Piotet, 371 (Bern 1990), who denies that there is a contradiction by pointing out that Art. 55 has its own field of application, e.g., in cases where a contract is formed without offer and acceptance. For an extensive analysis of the problems of pretium certum see Witz, Der unbestimmte Kaufpreis (Frankfurt 1989).

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999
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