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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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Although brought up in Vienna, the Conference did not dare to tackle th[e] problem [of the battle of the forms].[57] It has to be decided by applying Art. 19, a provision ill-suited for the battle of forms problem.[58] Since standard contract forms used by the parties can hardly ever be regarded as not materially altering the terms of the other side, the collision of standard forms has to be solved under Art. 19(1). If the offeree rep standard clauses, his answer has to be regarded as a rejection of the offer and a counter-offer. If in turn, the first offeror answers this counter-offer by referring to his standard clauses, we have another counter-offer and thus, no contract. There will be a contract only if one party stops referring to his standard clauses and performs the contract thereby indicating assent and accepting the last counter -- or counter-counter-offer -- of the other side. This means that the party last referring to his standard form will succeed (last shot principle) -- hardly a satisfying result.

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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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57. O.R. 288-289; see also UNCITRAL-YB VIII (1977) 82 105, 100 12.

58. Neumayer, Das Wiener Kaufrechtsübereinkommen und die sog, "Battle of Forms", in Festschrift Giger, 501, at 525 (Bern 1989).

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