Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 13 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 13 [draft counterpart of CISG article 15].
To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that article 13 of the 1978 Draft and CISG article 15 are substantively identical.
Text of Secretariat Commentary on article 13 of the 1978 Draft
[draft counterpart of CISG article 15] [Time of effect of offer; withdrawal of offer]
PRIOR UNIFORM LAW
ULF, article 5.
1. Article 13(1) [draft counterpart of CISG article 15(1)] provides that an offer becomes effective when it reaches [see footnote 1] the offeree. Therefore, until that moment even though the offeree may have learned of the dispatch of the offer by some means, he cannot accept it.
2. For most purposes the rule as stated above is only of theoretical interest. However, it assumes practical importance if the offeror changes his mind after dispatch of the offer but prior to the time the offer reaches the offeree.
3. If the offeror withdraws the offer and the withdrawal reaches the offeree before or at the same time as the offer, the offer never becomes effective. Therefore, an offer which, once it became effective, would be irrevocable under article 14(2) [draft counterpart of CISG article 16(2)], can nevertheless be withdrawn so long as the withdrawal reaches the offeree no later than the offer reaches him.
4. The distinction between withdrawal of an offer and revocation is of less significance if the offer is revocable under article 14(1) [draft counterpart of CISG article 16(1)] since a purported withdrawal which reached the offeree after the offer had reached him would be treated as a revocation. For the effect of the dispatch of an acceptance after the arrival of an offer but prior to the arrival to the revocation, see paragraph 4 of the commentary of article 14 [draft counterpart of CISG article 16]. (OFFICIAL RECORDS, p. 22).
1. Article 22 [draft counterpart of CISG article 24] contains a definition of the term "reaches".
[The Legal Analysis accompanying the President's transmittal of the Convention to the United States Senate states: "The reason supporting Article 15 is that the enforcement of contracts is designed to protect expectations; none can arise until the offer reaches the offeree. Cf. Article 18(2). Galston & Smit, "International Sales: The United Nations Convention on Contracts for the International Sale of Goods", Matthew Bender (1984) [Parker School Text], App. I-13.]
[Enderlein & Maskow state: "[Article 15] follows the rule of receipt. ... The subject here is the risk of transmission, which in each case should be 'assumed by the party which in deviating from the normal procedure gave rise to a statement. ... The withdrawal does not have to be in the same farm as the offer, i.e., offer by letter, withdrawal by telex or telegram. Withdrawal can also be declared by telephone, even if otherwise the written farm is required." Fritz Enderlein & Dietrich Maskow. "International Sales Law", Oceana (1992), pp. 86-87.]
[Winship states: "The CISG explicitly authorizes withdrawal of even an irrevocable offer if the withdrawal reaches seller before or at the same time as the offer (CISG art. 15(2)). The common law, on the other hand, has virtually no case law authority on this paint presumably because there is a presumption of revocability. ... What little case law. there is deals with the special case of letters of credit, rather than sale of goods contracts, and decisions holding that an irrevocable letter of credit cannot be withdrawn may not be extended to sale contracts." Peter Winship, "Formation of International Sales Contracts Under the 1980 Vienna Convention," 17 Int'l Law. 9 (1983).]
[Zeigel states: "The meaning of 'at the same time' is not defined and could be of importance if the two communications are only separated by minutes and the offer purports to' be irrevocable. Presumably a tribunal will be guided by the underlying rationale of 15(2) and (quare) by whether or not the two' communications might be expected to come to the attention of a responsible officer of the offeree at the same time." Jacob Zeigel, "Report to the Uniform Law Conference of Canada an Convention an Contracts for the International Sale of Goods (July 1981), p. 57.]