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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 14

(1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.

(2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.


1. Article 14 is very helpfully analysed in the [Secretariat] Commentary to s. 12 of the draft convention (the original section number). It is only necessary therefore to draw attention to the following differences between Art. 14 and the common law and statutory rules obtaining in the common law Provinces:

(a) There is no common law requirement that the proposal must be addressed to one or more "specific" persons; it can be addressed to the world at large if that is the offeror's intention, as it frequently is in the case of unilateral contracts. Cf. Carlill v. Carbolic Smoke Ball Co. (1892) 2 Q.B. 484 (C.A.).

However, the strictness of art. 14 (1) is substantially qualified by the provision in 14(2) that a proposal not addressed to one or more specific persons may be treated as an offer if such an intention is "clearly indicated". [The [Secretariat] Commentary, p. 55, explains that art. 14(2) was adopted as a "middle position" between those legal systems that recognize public offices and those that do not.]

As a result the difference between the CISG and common law positions is substantially narrowed and is only one of presumption and the burden of proof.

(b) At first sight the second sentence of article 14(1) appears to depart substantially from the common law rule in so far as it requires, as a condition of the definiteness of an offer, that it must "expressly or implicity" fix or make provisions, inter alia, for determining the price. The common law rule, as reproduced in s.9 of the Sale of Goods Act, is that if the contract is silent with respect to the price an agreement to pay a reasonable price will be implied.

The requirement of a fixed price in Art. 14(1) is apparently derived from French law and was the subject of intensive debate at Vienna. The debate was complicated by the fact that Art. 51 of the draft convention contradicted what was then Art. 12(1), because it provided that if the contract does not expressly or impliedly make provision for the price, "the buyer must pay the price generally charged by the seller at the time of the conclusion of the contract."

The Francophone countries and delegates from a substantial number of developing states felt that Art. 12(1) was doctrinally sound and necessary to prevent buyers being confronted by sellers with unreasonable prices after the goods had been delivered, and that Art. 51 should be amended to make it consistent with Art. 12(1). Other delegates felt just as keenly that Art. 12(1) was too rigid and needed the ameliorating touch of Art. 51. A compromise was eventually hammered out. Art. 12(1) was retained without change but Art. 51 (now Art. 55) was amended to read as follows:

"Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned."

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

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