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CISG Article 20
(2) Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows. |
PECL Article 1:304 [Computation of Time] (complete and revised version 1998) (1) A period of time set by a party in a written document for the addressee to reply or take other action begins to run from the date stated as the date of the document. If no date is shown, the period begins to run from the moment the document reaches the addressee. (2) Official holidays and official non-working days occurring during the period are included in calculating the period. However, if the last day of the period is an official holiday or official non-working day at the address of the addressee, or at the place where a prescribed act is to be performed, the period is extended until the first following working day in that place. (3) Periods of time expressed in days, weeks, months or years shall begin at 00:00 on the next day and shall end at 24:00 on the last day of the period; but any reply that has to reach the party which set the period must arrive, or any other act which is to be done must be completed, by the normal close of business in the relevant place on the last day of the period. |
Comparison between provisions of the CISG (Article 20) and the
counterpart provisions of the Principles of European Contract Law
John Felemegas [*]
November 2002
1. Period for acceptance fixed by the offeror
2. Commencement of the period
1. Period for acceptance fixed by the offeror: CISG Art. 20 - PECL Art. 1:304
In the situation where the offeror fixes a precise date by which the offeree must accept the offer (e.g.,
"no later that 31 August"), there are no special problems regarding the period allowed for acceptance
of the offer by the offeree. However, in the situation where the offeror merely indicates a period of
time for acceptance (e.g., "fifteen days"), problems may arise as to when that period begins, due to
possible uncertainty in whether the period starts to run from the time the communication was
prepared by the offeror, the time it was sent, or the time it was received by the other party.
It is an important element of certainty for parties who contemplate entering into a contract that there
is a clear point of time at which the period fixed by the offeror for acceptance of the offer
commences.
In Part II of the Convention, entitled "Formation of the Contract", CISG Article 20 provides the rules
for calculating when that period begins to run in situations where the commencement of the period
of time during which an offer can be accepted by the offeree has not been expressly fixed by the
offeror.[1]
PECL Article 1:304, entitled "Computation of Time", seems to have a slightly broader scope than
CISG Art. 20, since the former provides the rules for computing the commencement of a period of
time "set by a party in a written document for the addressee to reply or take other action," while the
latter deals specifically with the "time for acceptance fixed by the offeror." Nonetheless, it is arguable
that an "acceptance of an offer" is included in the scope of an addressee's "reply or […] other action",
in the context of the PECL.
2. Commencement of period: CISG Art. 20(1) - PECL Art. 1:304(1)
(a) CISG Art. 20(1)
CISG Art. 20 makes a distinction in the rules for calculating the period of time available for
acceptance, depending on the means of communication of the offer used by the offeror.
CISG Art. 20(1) provides that the period of time for acceptance fixed by the offeror in a telegram
"begins to run from the moment the telegram is handed in for dispatch."
If the period of time for acceptance is communicated to the offeree by letter, the time runs "from the
date shown on the letter, or if no such date is shown, from the date shown on the envelope."[2]
In other words, the CISG adopts the moment of dispatch of the communication as being effective.[3]
CISG Art. 20(1) provides that if the period of time for acceptance is communicated by "telephone,
telex or other means of instantaneous communication," the period "begins to run from the moment
that the offer reaches the offeree".[4]
In such instances where instantaneous means of communication are used, the moments of dispatch
and receipt of the communication are practically identical, as they occur almost simultaneously.
(a) PECL Art. 1:304(1)
PECL Art. 1:304 makes no express distinction between non-instantaneous and other means of
communication; rather the PECL make an implied distinction between written and oral means of
communication.[5]
Similarly to the rule contained in CISG Art. 20(1) regarding non-instantaneous means of
communication, PECL Art. 1:304(1) states that the relevant period of time "begins to run from the
date stated as the date of the document."[6]
However, PECL Art. 1:304(1) goes further than the counterpart CISG provision by explicitly
clarifying the situation where there is no date shown on the relevant document: "If no date is shown,
the period begins to run from the moment the document reaches the addressee."[7]
It is submitted that despite the broader scope of the provision in PECL Art. 1:394(1), which
encompasses the period for an addressee's reply or any other action, and also its lack of a distinction
comparable to that contained in CISG Art. 20(1) - regarding instantaneous and other means of
communication - the two counterpart provisions share the same rationale (i.e., the creation of
certainty for the parties concerned [8]) and they also adopt similar solutions to the problem they address
(i.e., by providing rules based first on objective evidence of dispatch, whenever such evidence is
available).
3. Effect of holidays and non-business days: CISG Art. 20(2) - PECL Art. 1:304(2)
The counterpart provisions in CISG Art. 20(2) and in PECL Art. 1:304(2) contain identical rules,
phrased in similar wording, providing that official holidays and non-business days occurring during
the period fixed for acceptance are included in calculating the period.[9]
Where the notice or acceptance cannot be delivered on the last day of the period fixed for acceptance-reply, because it falls on a holiday or non-business day at the place of delivery (i.e., at the place of the
offeror-addressee, as the case may be),[10] both counterpart provisions grant an extension of the period
until the first business day which follows.[11]
4. Computation of period from midnight to midnight: PECL Art. 1:304(3)
In accordance with the 1972 European Convention on the Calculation of Time-Limits, the PECL
provide that time runs from the start of the first day to midnight of the last day of the period.[12] However, the second sentence in Article 1:304(3) states that any reply that has to reach the party who
set the period must arrive "by the normal close of business in the relevant place on the last day of the
period."[13]
The Convention does not contain any comparable provision on the calculation of the period fixed for
acceptance in terms of hours, but the PECL rule on the "normal close of business in the relevant place
on the last day of the period" is not a controversial one and can also be found in other legal systems.[14]
[See also commentary by the author on this subject in: John Felemegas ed., An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law, Cambridge University Press (2006) 321-324.] FOOTNOTES
* Dr. John Felemegas is a Fellow of the Institute of International Commercial Law of the Pace University
School of Law. Effective February 2003, he joins the Faculty of Law of University of Technology, Sydney.
1. Enderlein and Maskow International Sales Law (1992), also available online at
<http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html>, Art. 20, comment 1: "The objective of this rule
is for the two parties to find identical bases for the calculation of that period."
2. The Secretariat Commentary on Article 18 of the 1978 Draft [draft counterpart of CISG Article 20] explains
that "[t]his order of preference was chosen for two reasons: first, the offeree may discard the envelope but he
will have the letter available as the basis for calculating the end of the period during which the offer can be
accepted and second, the offeror will have a copy of the letter with its date but will generally have no record
of the date on the envelope. Therefore, if the date on the envelope had not been checked, the offeror could not
know the termination date of the period during which the offer could be accepted." Comment 3.
3. Enderlein and Maskow, supra note 1, Art 20, comment 1, where the authors also note that "the moment of
dispatch is generally easier to prove than the moment of receipt."
4. Cf. CISG Art. 24: "For the purpose of this Part of the Convention, an offer, declaration of acceptance or any
other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other
means to him personally, to his place of business or mailing address or, if he does not have a place of business
or mailing address, to his habitual residence."
5. PECL Art. 1:304(1) refers to the period of time "set by a party in a written document."
See also Comment and Notes to PECL Article 1:304: "If a party sets a period of time in an oral
communication, whether face-to-face or by phone, and does not state from when it is to run, the natural
assumption is that it runs from the moment of communication. (This would apply even to a message left on
a telephone answering machine: the period will start from the moment the message is recorded.) No special
rule is needed for this case. Problems arise only with communications in writing (which as defined in Article
1:301 include e-mail and similar electronic forms of communication if they are capable of leaving a written
record)."
6. The Comments to PECL Art. 1:304 explain the rationale for the rule adopted in the Principles:
"In default of a stated method of computation, there might be uncertainty whether the period should start from
the time the communication was prepared, the time it was sent or the time it was received.
"It is well known that delays occur not only in the actual transmission of communications such as telegrams
or letters but also in the sending out of all types of communication. For example a fax may be signed on one
day but the sender's office may not dispatch it until the next. This will not necessarily be apparent to the
sender, who may simply be given back the original; nor to the person in the recipient's office who is charged
with responding. Although fax machines record the time the message was received at the top or bottom of the
page, this is very easily lost when the document is photocopied again. For this reason the Principles adopt the
rule that the date shown as the date of the letter or other document should normally be treated as the starting
date by whatever method the document was transmitted." Comment D.
7. Note that a similar rule is adopted by the Convention in CISG Art. 20(1) regarding instantaneous means of
communication; see comments in 2. (ii), supra.
8. On the importance of certainty for both parties, see PECL Comment A. See also Enderlein and Maskow,
supra note 1; J. Ziegel, Report to the Uniform Law Conference of Canada on Convention on Contracts for the
International Sale of Goods, (July 1981), also available online at
<http://www.cisg.law.pace.edu/cisg/text/ziegel20.html>: "[CISG Art. 20] Paragraph (1) provides some
sensible rules to determine the commencement of the period of time during which an offer can be accepted
and appears to be unobjectionable from a common law point of view."
9. See Enderlein and Maskow, supra note 1, comment 5, where the authors state that "[o]nly holidays or non-business days at the place of business of the offeror are being taken into consideration because those may not
be known to the offeree".
10. See Enderlein and Maskow, ibid.: "If, however, the last day of the period falls on a holiday at the place of
business of the offeree and the offeree is prevented from dispatching an acceptance, he has to take this into
account and hand in his acceptance for dispatch earlier." Id.
11. See Ziegel supra note 8, where the author states that this rule in CISG Art. 20(2) "is a logical corollary to
the reception rule for acceptances adopted in art. 18(2). Since the acceptance is not effective until it reaches
the offeror some provision is necessary where the last day for acceptance is a non-business day or an official
holiday at the offeror's place of business. The practical effect of art. 20(2) appears to be to extend the period
for acceptance by at least one day where the notice of acceptance cannot be delivered. It may of course be
longer depending on the circumstances."
See also Official Comments to PECL Article 1:304, Comment F: "The Principles follow European convention
(see the 1972 Convention on the Calculation of Time-Limits, Article 5) in including official non-working days
(e.g., Saturday and Sunday) and official holidays in the period, except that if the last day of a period is an
official non-working day or official holiday in the relevant place (i.e. where the message is to be delivered or
the action performed) the period is extended to include the next working day. If in the relevant trade there is
a usage of working on what is officially a holiday, or if there is a local usage of working or not working on
the relevant day, the usage will prevail, see Article 1:105." Cf. CISG Article 9, on the issue of international
trade usages.
12. See PECL Art. 1:304(3), first sentence; see also Comments to PECL Art. 1:304, Comment G.
13. See also Comment G: "Moreover, the relevant close of business should be the one where the party is, since
the person who has been told to reply within a certain time should not be entitled to assume that this means
the period calculated by his own time."
14. See Comments and Notes to PECL Article 1:304, Notes 3 and 4.
Like the commentary to the UNIDROIT Principles and the U.S. Restatements, the
comments to the PECL help explain the meaning of the text. The PECL notes offer an
added boon to researchers. They identify civil and common law antecedents and
related domestic provisions. With the permission of the Commission on European
Contract Law, the comments and notes to this PECL article are presented below. The
source of this material is Ole Lando & Hugh Beale eds., Principles of European
Contract Law: Parts I and II, Kluwer Law International (2000) 131-134.
(1) A period of time set by a party in a written document for the addressee to reply or
take other action begins to run from the date stated as the date of the document.
If no date is shown, the period begins to run from the moment the document
reaches the addressee. (2) Official holidays and official non-working days occurring during the period are
included in calculating the period. However, if the last day of the period is an
official holiday or official non-working day at the address of the addressee, or at
the place where a prescribed act is to be performed, the period is extended until
the first following working day in that place. (3) Periods of time expressed in days, weeks, months or years shall begin at 00:00 on
the next day and shall end at 24:00 on the last day of the period; but any reply that
has to reach the party which set the period must arrive, or any other act which is
to be done must be completed, by the normal close of business in the relevant place
on the last day of the period. Comment A. Importance of certainty for both parties It is important to have clear rules governing the computation of time so a party which
has been told by the other that it must reply or do some other act by or within a certain
time may know how long it has, but also so that the party which set the time may
know whether or not the other has replied or acted within the time set. B. Oral communications If a party sets a period of time in an oral communication, whether face to face or by
phone, and does not state from when it is to run, the natural assumption is that it runs
from the moment of communication. (This would apply even to a message left on a
telephone answering machine: the period will start from the moment the message is
recorded.) No special rule is needed for this case. Problems arise only with
communications in writing (which as defined in Article 1:301 include email and similar
electronic forms of communication if they are capable of leaving a written record). C. Express starting time prevails If the party setting the time has stated how it is to be computed that should govern. In
some situations the Principles require that it set a reasonable time. For example under
Article 8:106, Notice fixing additional time for performance, para. (3), the notice must
set a reasonable period of time for performance. Choosing an inappropriate method of
computation might mean that the notice given is not adequate and the period will have
to be extended. D. Starting time not expressly stated In default of a stated method of computation, there might be uncertainty whether the
period should start from the time the communication was prepared, the time it was
sent or the time it was received. It is well known that delays occur not only in the actual transmission of
communications such as telegrams or letters but also in the sending out of all types of
communication. For example a fax may be signed on one day but the sender's office
may not dispatch it until the next. This will not necessarily be apparent to the sender,
who may simply be given back the original; nor to the person in the recipient's office
who is charged with responding. Although fax machines record the time the message
was received at the top or bottom of the page, this is very easily lost when the
document is photocopied again. For this reason the Principles adopt the rule that the
date shown as the date of the letter or other document should normally be treated as
the starting date by whatever method the document was transmitted. E. No date shown With non-instantaneous communications like letters or telegrams, if the letter or
telegram itself is undated, time should run from the date at which it was received,
which will be all that is clear to the recipient. (With instantaneous written
communications like a fax, there is little difficulty because the sending and receipt are
simultaneous.) [page 132] F. Non-working days count unless the last day of the period The Principles follow European convention (see the 1972 Convention on the
Calculation of Time-Limits, Article 5) in including official non-working days (e.g.
Saturday and Sunday) and official holidays in the period, except that if the last day of a
period is an official non-working day or official holiday in the relevant place (i.e. where
the message is to be delivered or the action performed) the period is extended to
include the next working day. If in the relevant trade there is a usage of working on
what is officially a holiday, or if there is a local usage of working or not working on
the relevant day, the usage will prevail, see Article 1:105. G. Time runs from midnight to midnight Also in accordance with the European Convention, the Principles provide that time
runs from midnight to midnight. However, the party which has set the period should not have to wait for a reply or
other action beyond the normal working day in its business in the country. Moreover,
the relevant close of business should be the one where the party is, since the person
who has been told to reply within a certain time should not be entitled to assume that
this means the period calculated by his own time. Notes [Match-ups with Continental and Common Law domestic rules, doctrine and
jurisprudence] 1. Period runs from date of document or, if no date stated, of receipt Some legal systems calculate time periods set in a document from the date stated in the
document, rather than, for example, the date the document was received by the party
who is to respond within the time stated: NORDIC Contracts Act § 2(2) (offers). In
most countries the question is one of interpretation and the period may run from the
date of receipt if this is what is stated or seems appropriate in the circumstances (cf.
the ENGLISH case of Dodds v. Walker [1981] 1 W.L.R. 1207, H.L. (by statute,
tenant could apply for renewal of tenancy within 'four months of the giving of the
landlord's notice' to quit: time started on receipt of notice and expired on
corresponding day of fourth month after)). In GERMAN law the question is also left
to general rules on interpretation, see Larenz/Wolf § 28 no. 99, 101, § 52 no. 1. 2. Official holidays and non-working days Many systems also presume that official holidays and non-working days are included in
the period of time: ENGLAND, see Chitty §21-019, Halsbury vol. 45, para. 1140;
GERMANY, Larenz/Wolf § 52 no. 10. The rule that if the last day of the period is a holiday or non-working day, the time is
extended to the next working day is also found widely: e.g. AUSTRIAN ABGB § 903;
BELGIAN Judicial Code art. 53; FRENCH NCPC art. 642 GERMAN BGB § 193;
NORDIC Instruments of Debt Act [page 133] §5 (2); PORTUGUESE CC art. 279(e),
which also refers to judicial holidays. In England, however, the rule applies only to
acts to be done by a court or in court; in other cases, the general rule is that the fact
that the last day is a Sunday or a holiday does not extend the time, Halsbury vol. 45,
para. 1138. Article 1:304(2), first sentence, corresponds to the European Convention on Time-Limits of 16 May 1972 (Eur. T.S. No. 76), art. 5. 3. Time runs from start of next day to midnight of last day This rule is very common: e.g. AUSTRIAN ABGB § 902; BELGIAN Judicial Code
art. 52(1); ENGLAND, presumption to this effect, see Chitty § 21-020 and Halsbury,
vol. 45, paras. 1134-1135; FINLAND, specific rule in Insurance Contracts Act of
1994, § 11 (5); FRENCH NCPC arts. 641-642; GERMAN BGB §§ 187(1) and
188(1); GREEK CC art. 241, Code of Civil Procedure art. 144(1); PORTUGUESE
CC art. 279 (c). Article 1:304(3), first sentence, corresponds to the European
Convention on Time-limits, art. 3(1). 4. Time ends at close of business on last day This rule is found in some systems: e.g. BELGIAN Judicial Code art. 52(2);
ENGLAND, presumption to this effect, see Chitty § 21-019. In GERMAN
commercial law, performance must be effected by the close of business on the last day,
HGB § 358. In other systems the rule would probably follow from the good faith
principle, e.g. in PORTUGAL. Article 1:304(3), second sentence, corresponds to the
European Convention on Time-limits, art. 3(2). [page 134] Go to full text of Parts I & II of Principles of European Contract Law
Comment and notes on PECL 1:304
COMMENT AND NOTES: PECL Article 1:304: Computation of Time
© Pace Law School Institute of International Commercial Law - Last updated January 5, 2007
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