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Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods

Professor Jacob S. Ziegel, University of Toronto
July 1981

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Article 19

(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.

(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications 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 of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.

COMMENT

1. The rule in paragraph (1) corresponds to the common law rule on the effect of an acceptance containing variant terms. See e.g., Hyde v. Wrench (1840) 49 E.R. 132, Waddams, op. cit., p. 73.

2. Paragraph 2 contains a very modest exception to the "mirror image" rule prescribed in paragraph 1, and does not come to grips with the thornier aspects of the "battle of the forms" so much discussed in American literature. See OLRC Sales Report, pp. 81-86. In particular art. 19 does not indicate whether there is a binding contract where the parties have proceeded to perform although their writings are in conflict and, if there is, whose terms will prevail. UCC 2-207 has attempted to provide some guidance but its provisions have engendered much litigation and dissension. Other jurisdictions have been no more successful in finding satisfactory answers to this intractable problem. Given this circumstance, CISG was probably wise not to rush in where angels fear to tread but to leave it to the courts to work out the answers on a case by case basis.

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Pace Law School Institute of International Commercial Law - Last updated April 1, 1999
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