to Sample Questions

Article 7(2) CISG addresses the question of gap-filling. Matters governed by the CISG but not expressly settled in it (internal gaps) are to be solved in conformity with the general principles on which the CISG is based, whereas matters which are not governed by the CISG are to be solved by having recourse to domestic law.

Q 7-9

(a)  Does the court in C 7-5 consider the burden of proof to be a procedural question or a substantive law issue?

(b)  Why does the court come to the conclusion that the CISG contains rules on the burden of proof?

(c)  Is there a provision in the CISG which, through its wording, makes it clear who has to prove a certain fact?

(a)  The burden of proof is considered to be a question of substantive law.

(b)  By considering that the Convention enshrines the general principle that the party who invokes a right or a fact bears the burden to prove it.

(c)  Article 79(1) CISG, for example, explicitly mentions burden of proof by stating that ‘[a] party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences’.

Q 7-10

(a)  What was the question to be decided in C 7-6 and C 7-7?

(b)  What was the holding of the respective courts?

(c)  What was different in C 7-6 and C 7-7 with regard to the legal question at issue? Might this explain the difference in the verdicts?

(d)  Which provision might constitute the basis for deriving a general principle of set-off?

(a)  The question was whether or not set-off—a matter not explicitly settled in the Convention—was governed by the CISG.

(b)  In C 7-6, the court held that the CISG could not govern set-off and that recourse should be made to domestic law in order to decide whether or not set-off was admissible in the case at hand. In C 7-7, the court found that the set-off was governed by the CISG.

(c)  In C 7-6, one of the claims resulted out of a contract not governed by the Convention, whereas in C 7-7, both claims arose out of the same contract. This might explain the different positions taken in the two decisions.

(d)  Articles 58(1) and 81(2) CISG (those two articles underlie the principle of concurrent performance) and Article 88(3) CISG (this article gives a right to set-off to the party who sold goods subject to rapid deterioration).

Q 7-11

(a)  Are there any questions which cannot be settled in accordance with the general principles underlying the Convention but must rather be answered under the applicable domestic law?

(b)  Which provision of the CISG would help answer this question?

(a)  Examples are: issues related to the transfer of ownership, the validity of the contract, assignment of claims, and transfer of the contract to a third party or agency.

(b)  Article 4 CISG, which delimitates the legal issues dealt with by the Convention.

Q 7-12

What difficulties do we encounter when deciding whether we can develop a general principle from a particular provision of the CISG?

As general principles are not labelled as such, and as their content, operation and effect are not expressly defined in the CISG, there is the risk of diverging solutions, not only with regard as to whether a general principle exists, but also as to its content, operation and effect.

Article 8 CISG

Q 8-1

(a)  What is the purpose of Article 8 CISG?

(b)  Explain the difference in scope between Articles 7 and 8 CISG.

(a)  It governs the interpretation of a party’s statements and conduct as well as the interpretation of the contract.

(b)  Article 7 CISG deals with the interpretation and gap-filling of the Convention, whereas Article 8 CISG deals with the interpretation of the parties’ statements and conduct.

Q 8-2

(a)  How can Article 8(1) and (2) CISG be distinguished?

(b)  Do the PICC 2010 make the same differentiation? See Articles 4.1, 4.2 PICC 2010.

(a)  Article 8(1) requires that the contract or a party’s declarations and conduct be interpreted according to the subjective intent of that party, even if this intention differs from the literal wording of the declaration, or even if an objective view would lead to another understanding of the contract, declaration or conduct.
Article 8(2) is the default rule which applies if there is no sufficient evidence of any subjective intent. In such a case, the contract, declarations and conduct must be interpreted from an objective point of view, that is, in the way in which reasonable persons of the same kind as the parties would read and understand the statements in the same circumstances.

(b)  Yes. Here as well, the subjective or ‘real intent’ theory is stated as the primary rule and the ‘objective theory’ as the default rule.

Q 8-3

(a)  In which legal systems are the Parol Evidence Rule and the Plain Meaning Rule rooted?

(b)  What is the difference between the Parol Evidence Rule and the Plain Meaning Rule?

(a)  In common law legal systems.

(b)  The Plain Meaning Rule prevents a court from considering evidence external to an unambiguous piece of writing, whereas the purpose of the Parol Evidence Rule is to guarantee the integrity of written contracts, and it thus prevents the courts from admit external evidence, for instance a witness, who could contradict the written agreement.

Q 8-4

(a)  What was the legal question at issue in C 8-1?

(b)  What does the court state with regard to whether the Parol Evidence Rule applies under the CISG? On what considerations does it base its decision?

(a)  The question was whether the plaintiff-appellant, MCC, could rely on the non-conformity of the goods. It was established as a fact that MCC had not complied with the time-limits provided for in clause 4 of the sales conditions. But MCC argued that the parties never intended those sales conditions (printed on the reverse of the order form) to apply to the parties’ agreements, and the evidence provided for this argument was an affidavit by MCC’s president, Mr Monzon. The first and second instance, based on the Parol Evidence Rule, did not take the affidavit into consideration, and accordingly held that MCC was bound by clause 4 of the sales conditions. MCC appealed, and the Appellate Court had to decide whether the Parol Evidence Rule could be evoked under the CISG.

(b)  The court states that the Parol Evidence Rule is not a rule of evidence, and thus a procedural rule, but rather a substantive rule of law preventing the litigant from attempting to show ‘the fact itself’ which did not show in the written document. It is thus a rule of interpretation. Since the CISG governs the question of contract interpretation in its Article 8, the Parol Evidence Rule—as a domestic rule of interpretation—is superseded by Article 8 CISG.

Q 8-5

Explain the effect of a merger clause. See also C 8-2.

An effective merger clause bars extrinsic evidence which could supplement or contradict the written terms. In C 8-2, the parties had included such a merger clause in their contract. The effect of the merger clause was that the respective provisions of the CISG were derogated from and all questions explicitly addressed in the contract were controlled by the latter.

Q 8-6

How will a merger clause be interpreted under the CISG?

A Merger Clause will be interpreted in accordance with the interpretation rules of the Convention, in order to decide the meaning the parties wanted to give to such a clause that derogates from Article 8 CISG.

Q 8-7

The PICC 2010 specifically address merger clauses.

(a)  Can you explain why they deal with merger clauses, while the CISG does not?

(b)  How should a merger clause be interpreted under Article 2.1.17 PICC 2010? Compare this answer to the respective rule under the CISG.

(a)  The PICC were drafted more than 10 years after the CISG (and have since been revised), that is, at a time where the issue of merger clauses in relation to uniform substantive law (CISG) had been identified as a question which could potentially raise problems. The PICC thus settled the question explicitly.

(b)  The PICC expressly state the interpretation rule which has been developed under the CISG. That is, the merger clause as such has the effect that statements or agreements other than those embodied in the contract document containing the merger clause will be disregarded for the purpose of establishing the terms of the contract. However, in order to determine whether the parties wanted the clause to have a merger clause effect, all circumstances relevant to the case, including prior statements or agreements, are to be taken into account.

Article 9 CISG

Q 9-1

Which rules govern the question of whether a usage has been agreed on or a practice established?

The rules are those governing the formation of contract (Arts 8 and 14 et seq CISG).

Q 9-2

What is the hierarchy of legal norms applicable to a CISG contract? Rank the following legal sources:

—  provisions of the CISG;

—  individually negotiated contract clauses;

—  usages agreed upon by the parties or practices established between themselves (Art 9(1) CISG);

—  widely known and regularly observed international trade usages (Art 9(2) CISG).

The hierarchy of norms must be derived from the principle of party autonomy, as established in Article 6 CISG. Thus the hierarchy is as follows:

(1)  Individually negotiated contract clauses;

(2)  Usages agreed upon by the parties or practices established between themselves (Art 9(1) CISG);

(3)  Widely known and regularly observed international trade usages (Art 9(2) CISG);

(4)  Provisions of the CISG.

Q 9-3

(a)  Is it necessary for the usages agreed upon to be internationally accepted?

(b)  Why was the buyer in C 9-1 held to not have inspected the goods on time?

(c)  According to C 9-2, how many times must a particular practice have taken place in order to satisfy the requirement of an ‘established practice’ in Article 9(1) CISG?

(d)  How does the decision of the Oberster Gerichtshof in C 9-3 extend that rule?

(a)  No, the usages explicitly or impliedly agreed upon by the parties may also be merely regional or local usages or usages from another trade branch.

(b)  According to an international usage, to which the parties had explicitly agreed, the buyer had to inspect the goods and give notice of any non-conformities within 30 days after arrival of the goods at the port of destination. Thus, the ‘reasonable time’ for giving notice under Article 39 had been derogated from.

(c)  According to C 9-2, a ‘long lasting contractual relationship’ is required and a practice applied only in two contracts between the same parties is not sufficient proof of an ‘established practice’.

(d)  It considers that usages and practices could be relevant even if they take place before the conclusion of the contract, with reference to the general conditions of sale, the prior correspondence and the draft of a framework agreement.

Q 9-4

Why did the Court in C 9-3 find that the parties had effectively concluded a contract?

The parties had not established any practice which would require a specific form of contract conclusion, neither was there an international usage within the meaning of Article 9(2) which would require contracts of sale in the oil industry to be in writing. Thus, the Court found that, in accordance with Articles 11, 14 et seq., the contract had been effectively concluded.

Q 9-5

(a)  Under Article 9(2) CISG, must there be evidence that the parties positively agreed on a usage?

(b)  Compare Article 9(2) CISG with Article 1.9(2) PICC 2010. Do you see any differences?

(a)  No, Article 9(2) CISG only requires that the usage be widely known and regularly observed by parties in the trade branch concerned and that the parties ought to have known of the usage.

(b)  Article 1.9 PICC does not refer to the fact that the parties knew or ought to have known of the usage. The usage thus becomes part of the contract by the fact that it is widely known and regularly observed between parties in international trade concerned ‘except where the application of such a usage would be unreasonable’.

Q 9-6

Can you find any examples of usages that, in cross-border sales, are widely known and regularly observed by parties in the trade concerned?

Examples are as follows:

(a)  In the wood industry: a usage according to which, inter alia, the buyer must give written notice of any non-conformity of the wood within 14 days after having taken delivery at the latest (cf C 9-4).

(b)  In the fish industry: a usage according to which Latin terms are used for designating the fish (Danish Maritime Commercial Court (Denmark), 31 January 2002, CISG-online 679).

(c)  In the steel plate industry: a usage according to which the seller must be given the opportunity to be present at the examination of the goods (Appellate Court of Helsinki (Finland), 29 January 1998, CISG-online 1302).

(d)  In certain Contracting States, independent of the trade concerned: a usage according to which the parties are bound by a so-called letter of confirmation by which the terms of an orally concluded contract are confirmed but, at the same time, slightly modified, if the addressee of the letter of confirmation remains silent upon receipt.

Q 9-7

(a)  In C 9-4, it was held that even merely local usages may be usages in the meaning of Article 9(2) CISG. According to that decision, when will that be the case?

(b)  Does the fact that domestic and even local usages may constitute usages within the meaning of Article 9(2) CISG comply with the wording of Article 9(2) CISG?

(a)  According to C 9-4, merely local usages may fulfil the requirements of Article 9(2) CISG if the parties had their place of business within the area of these usages, or if they continuously do business in this area for a considerable period of time.

(b)  Yes. Article 9(2) CISG expressly states that the usage should be widely known, and regularly observed, in international trade. This will be the case if a purely national usage is of international renown, but also where it is of geographically limited importance but the parties are located within the geographical area in which the usage is known and regularly adhered to.

Q 9-8

(a)  Why did the court in C 9-5 affirm that there was a usage within the meaning of Article 9(2) CISG with regard to the effects of a letter of confirmation?

(b)  Would the court have come to the same conclusion if the letter of confirmation had been sent from a German party to a party located in a country whose law does not provide for the same effect of such confirmation letter?

(c)  In light of this, can we ignore the parties’ domestic law with respect to whether a merely local or regional usage is considered a usage within the meaning of Article 9(2) CISG?

(a)  The Zivilgericht affirms that there was such a usage within the meaning of Article 9(2) CISG because the domestic legal systems of both parties generally agree on the binding effect of a letter of confirmation.

(b)  No. If the scope of the usage is geographically limited and does not reach the other party’s place of business, the usage is not a usage ‘widely known in international trade’ within the meaning of Article 9(2) CISG. Thus, the question of whether silence upon the receipt of a letter of confirmation amounts to acceptance of the terms of that letter must be solved on the basis of Articles 14 et seq. CISG. (As to the usage regarding the effect of a letter of confirmation cf. above, Q 9-6 (d)).

(c)  Not really. In order to know whether a usage is recognised by the majority of traders doing international business in the same field, regard must be had to the place of business of the parties and to whether usages exist at that place, including legal usages, which are usually observed in cross-border sales contracts between parties of the respective countries.

Article 10 CISG

Q 10-1

What is the significance of the ‘place of business’?

The place of business is important for determining a number of questions, such as whether the Convention applies, where delivery or payment must be made, whether the risk has passed, and so on.

Q 10-2

(a)  What difficulty arises from the fact that Article 10(a) CISG simultaneously relies on the closeness to the contract and its performance?

(b)  In case law, what have been the indicating factors for deciding which out of several places of business has the closest connection to the contract and its performance? See C 10-1.

(a)  A contract may have been negotiated, concluded, modified etc at a place other than the place at which the contractual obligations are subsequently performed.

(b)  The centre of gravity of the contract is the relevant element. It mainly depends on the place where the person in charge of the contract (contract communication) is located and the place where the decisions regarding the contract are taken.

Q 10-3

Is the parties’ nationality significant in answering the question of where their place of business is?

The nationality of the parties is irrelevant for the purposes of the CISG.

Article 11 CISG

Q 11-1

(a)  Which principle is stated in Article 11 CISG?

(b)  Compare Article 11 CISG with Article 1.2 PICC 2010.

(c)  Compare the result with Section 2-201 UCC, Article 1341 CC. What are the differences?

(d)  What is the effect of an unwritten contract that exceeds the indicated sum under the UCC? Is it invalid?

(a)  The principle of the freedom of form.

(b)  Both Article 11 CISG and Article 1.2 PICC use almost identical wording.

(c)  Under French CC, sales contracts exceeding a certain value are subject to form requirements in order to be enforceable. A similar rule can be found in Section 2-201(1) UCC, even though its paragraph 3 provides for some important exceptions.

(d)  The lack of writing does not render the contract invalid, it merely prevents its enforceability. However, according to Section 2-201(3), even a contract which does not live up to the form requirements is enforceable if the seller has already made substantial beginnings or commitments for the procurement of goods that are specifically manufactured for the buyer. An unwritten contract is also enforceable to the extent to which the other party admits in court that a contract of sale was made. Finally, it is enforceable, despite the lack of writing, with respect to goods of which the buyer has already taken delivery.

Q 11-2

(a)  Can the parties to a CISG contract still agree that a certain form must be complied with?

(b)  Is an implied modification or termination of the contract possible pursuant to Article 11 CISG? See also Article 29 CISG.

(a)  Yes, they can derogate from Article 11 CISG and provide for specific form requirements (cf Art 6 CISG). However, the parties’ arrangement will have no effect in those cases which are governed by Article 12 CISG and in which domestic form requirements prevail over Article 11 CISG.

(b)  The CISG does not require that a modification or termination of the contract be in writing, but the parties can make a different agreement.

Q 11-3

According to Article 11, sentence 2 CISG, the existence of a contract may be proven by any means. Why was Article 11, sentence 2 CISG incorporated into the CISG?

This sentence prevents domestic procedural rules from undermining the principle of freedom from form requirements.

Article 12 CISG

Q 12-1

What was the reason for incorporating Articles 12 and 96 CISG into the CISG? See also above Article 1 CISG.

Articles 12 and 96 CISG were introduced after pressure from Eastern countries, especially the former Soviet Union, who had a rigid state control system applying to the validity of form of foreign trade contracts.

Q 12-2

Why did the court in C 12-1 adopt the view that domestic form requirements must only be observed if the international private law of the forum leads to the application of the law of the Reservation State?

The court held that where the CISG applies by virtue of Article 1(1)(a) but one of the Contracting States has made a reservation under Article 96, there is no general principle which would govern the question of whether a damages claim could be based on a contract which had been concluded orally. Thus, the court proceeded under the second alternative of Article 7(2) and applied its rules of international private law in order to determine which law governs the question of form requirements in the case at hand.

Article 13 CISG

Q 13-1

To which situations does Article 13 CISG refer?

It refers to situations in which the contract or other contractual statements must be in writing. The writing requirement may have been agreed on by the parties or it may be a practice established or a trade usage. A writing requirement may also exist by virtue of Article 12 CISG.

Q 13-2

What might be the reasons for subjecting a contract to written form?

Writing requirements serve several purposes. In international trade, they generally serve as a means of seriousness and of evidence.

Q 13-3

(a)  How could Article 13 CISG be extended to include electronic communication data? In this respect, can the UNCITRAL Model Law on Electronic Commerce, the PICC 2010 and the UN Convention on the Use of Electronic Communications in International Contracts be of interpretive help?

(b)  In the light of the purpose of writing requirements, should, for example, short text messages made by mobile telephones be on par with ‘writing’?

(a)  From Article 13 CISG, a general principle can be derived (Art 7(2)) that the Convention is amenable to the use of communication which is, from a functional perspective, equivalent to paper messages. It could also be argued that Article 13 CISG ought to be interpreted in the light of other international uniform instruments, such as those cited above.

  According to the Advisory Council to the CISG, the functions of a paper message are the ability to save (retrieve) the message and to understand (perceive) it. Similarly, the UNCITRAL Model Law requires that the information contained in a data message be accessible so as to be usable for subsequent reference. The PICC even require that the data message be ‘capable of being reproduced in tangible form’ and of ‘providing a readable record of the statement on both sides’, respectively.

(b)  Short text messages are retrievable and perceivable. They even are reproducible in tangible form with the aid of special PC programmes. SMS are thus included in the term ‘writing’.

Article 14 CISG

Q 14-1

On what basis did the court in the Geneva Pharmaceuticals case (C 14-1) hold that the offer was ‘sufficiently definite’?

Claimant’s allegation of an industry custom, which was affirmed by one of the defendants.

Q 14-2

(a)  What other instances can be held as being ‘sufficiently definite’ to constitute an offer under the CISG?

(b)  What about under Section 2-204 UCC?

(a)  Any communication, oral or written, in which the goods are identified and provision is made for determining the quantity and the price. For example, an offer for the sale of cars that mentions the brand and model, but expressly leave the ‘detailed colour and equipment to be determined at a later stage’, see CIETAC, 23 April 1997, CISG-online 1151.

(b)  The parties have showed an intention to make a contract and the terms are definite enough for a remedy to be determined.

Q 14-3

An offer will not be valid by virtue of Article 14 CISG alone. What matters under domestic law will also need to be taken into consideration in determining whether or not a valid offer has been made?

The ability to conclude a contract about the subject matter concerned; establishing the identity of the offeror, and the party to whom the offer is directed; and the long-term business relationship and practices established between the parties.

Q 14-4

(a)  Upon whose understanding do you think the court placed emphasis in C 14-2 and C 14-3, respectively—that of the buyer or that of the seller?

(b)  What was the reasoning behind this?

(c)  Which principle, present in both civil and common law domestic systems, does this approach reflect?

(a)  The buyer.

(b)  The buyer was in the position of offeree in both these cases. It was important that the buyer understood that its acceptance would lead to the conclusion of a contract. Consequently, it was the buyer’s understanding that was relevant in determining whether an offer had been made.

(c)  The protection of the offeree from unwittingly entering into a contract.

Q 14-5

Why was a contract not concluded in the above case?

Because the course of dealing that had been established in the twenty prior transactions between the parties showed that the parties did not intend to be bound until they had achieved agreement on the final terms embodied in the contract documents.

Q 14-6

(a)  Did the Tribunal rely on Article 55 CISG in C 14-5?

(b)  Why or why not?

No, it did not rely on Article 55 CISG, because this was not a case where the price of goods needed to be determined outside the contract. Rather, the parties had agreed to agree on the price of the goods in the future, with the consequence that Article 55 was inapplicable.

Q 14-7

Would a clause whereby price will be determined at an agreed point of time in the future be sufficient to satisfy the requirements of Article 14 CISG?

Yes, because an agreed point in time in the future provides the means for determining the price. On that date, the parties will reach agreement on a price for the goods, with the consequence that the offer is sufficiently definite.

Q 14-8

(a)  Which phrase did the court cite as being ‘sufficiently certain’ in C 14-6 in holding that a valid offer had been made?

(b)  What does this case say about the relationship between Articles 14 and 55 CISG?

(a)  ‘a larger number of furs’

(b)  Articles 14 and 55 operate independently of one another. In C 14-6, the contract had been concluded with ‘an at least determinable price’, with the consequence that Article 55 did not need to be examined.

Q 14-9

(a)  Do you think the court made the correct judgment in C 14-7 with respect to the existence of an offer under Article 14(1) CISG?

(b)  What limitation did it place on the interpretation of Article 55 CISG?

(a)  No, the parties’ intention demonstrated that they wished to conclude a contract and each offer fulfilled the requirements of Article 14(1), taking into account the billing customs for aircraft engines, whereby the engine price would have been billed to the aircraft manufacturer.

(b)  Article 55 CISG can only be applied where market prices exist.

Q 14-10

(a)  What principle, present in both civil and common law systems, is reflected in Article 14(2) CISG?

(b)  Does the wording of Article 14(2) CISG reflect more the common law or the civil law approach?

(a)  An offer to the world at large is not an offer to conclude a contract, but an invitatio ad offerendum, or invitation to treat.

(b)  Common law.

Q 14-11

According to the Bundesgerichtshof (C 14-8) and the Oberster Gerichtshof (C 14-9), what other provisions of the CISG should a court have reference to in determining whether standard terms have been incorporated into the contract?

Reference should be had to Article 8, in order to determine whether such terms have been reasonably incorporated into the contract.

Q 14-12

(a)  What is required of a party seeking to rely on standard terms to incorporate them into the contract?

(b)  How is this achieved?

(a)  The party seeking to incorporate standard terms must make them part of the offer.

(b)  The party seeking to incorporate standard terms must show its intention to include such terms was apparent to the recipient party. Further, the other party must receive the text of the standard terms.

Q 14-13

(a)  What role does the language of the standard terms play in determining whether or not they will be held to have been validly incorporated into the contract?

(b)  Do you think this is the correct approach? Why or why not?

(a)  Standard terms written in a foreign language may still be validly incorporated if they are referred to in the language of the contract. Whether or not they are will depend on the individual circumstances of the case, having regard to the length, intensity and economic importance of the business relationship between the parties, as well as the use of the language in their society. If standard terms are provided in an internationally common language, knowledge is presumed unless the recipient notifies the other party of its lack of understanding.

(b)  For English, this would appear to be a reasonable approach. However, if, having regard to the business relationship between the parties, it would be unreasonable to send terms in another language, even in English, they should not, without more, be deemed to have been incorporated into the contract.

Article 15 CISG

Q 15-1

In what way is the operation of Article 15 CISG relevant in light of modern forms of communication?

The notion of ‘reaches’ needs to be considered in the light of email and other electronic communication forms.

Q 15-2

What problems can you perceive associated with the ‘receipt’ of messages by electronic communication?

If there is a problem with the recipient’s email account, it could reach the recipient but be unable to be read; if the recipient’s server is down, messages may not reach the recipient.

Q 15-3

(a)  More specifically, do you think the approach of the CISG Advisory Council to the term ‘reaches’ is appropriate in light of the modern problems associated with spam filters?

(b)  Do you think the approach under Article 16 PRC CL is appropriate?

(a)  Yes, if a message ends up in a spam folder, most email programs notify the recipient on a regular basis, so that the message still reaches the recipient. If a recipient does not receive a message identified as spam mail immediately, the circumstances of the case must dictate whether or not it was validly withdrawn.

(b)  The same should apply under Article 16 PRC CL. In particular, where parties have been negotiating with one another, email addresses should be known and usually messages from known senders will usually not end up in spam filters. If they do, a message should inform the recipient that a message has entered the spam filter and the notification requirement should be satisfied.

Article 16 CISG

Q 16-1

Based on the above, do you think it is accurate to say that Article 16 CISG represents a compromise between the different legal systems? Why or why not?

Yes, it is appropriate to say that Article 16 CISG represents a compromise. The general revocability under common law systems is reflected in Article 16(1). Article 16(2) CISG takes the civil law approach into account, whereby offers are held to be irrevocable in certain circumstances.

Q 16-2

(a)  Why is it sufficient to dispatch acceptance?

(b)  When does acceptance become effective?

(a)  Because the offeree should not bear the risk of transmission of the acceptance. It is also important to fix a point in time from which the offer is binding.

(b)  Acceptance becomes effective, and a contract is concluded, when the acceptance reaches the offeror.

Q 16-3

In what way does Article 16(1) CISG apply to electronic communications? See CISG Advisory Council Opinion No 1 above. Consider also the problems associated with spam filters addressed in Q 15-3 above.

Article 16(1) CISG applies to electronic communications in that an offer can be revoked if the revocation enters the offeree’s server before the offeree has dispatched an acceptance. If a revocation lands in the spam filter, it should still be deemed effective as it is the responsibility of the offeree to ensure that such messages reach it if it has agreed to receive messages in this way.

Q 16-4

How did the conclusion of the contract arise in the above case (C 16-1)? See also the discussion of Article 18(3) CISG.

The seller made a written offer and the buyer accepted by transferring an amount of money in accordance with the offer.

Q 16-5

Why was the seller not entitled to cancel its offer?

Because it stated in its offer that payment needed to be made by 25 June 2008. As such, the offer was irrevocable until this date.

Q 16-6

(a)  Can you reiterate the difference between Article 16(2)(b) CISG and the doctrine of promissory estoppel/detrimental reliance?

(b)  What would be the consequences of allowing the doctrine of promissory estoppel to pre-empt the CISG?

(a)  Under Article 16(2)(b), it is not explicitly stated that the offeree’s reliance must have been foreseeable and detrimental; under the doctrine of promissory estoppel, reliance must have been foreseeable and to the offeree’s detriment.

(b)  This would contradict one of the guiding principles of the CISG, which is for uniformity in interpretation, as the doctrine of promissory estoppel is not a universally accepted concept.

Article 17 CISG

Q 17-1

(a)  What might be the cases in which Article 17 CISG may play a practical role?

(b)  Explain the interplay between Article 19(1) (see Art 19 section II below) and Article 17 CISG.

(a)  Cases in which one party claims an offer was rejected and the other party claims that the offer was accepted.

(b)  Article 19(1) CISG applies where an offer purports to be an acceptance but contains additional or different terms such as to constitute a counter-offer. The relevance of Article 17 CISG is that the counter-offer under Article 19(1) is also a rejection of the initial offer.

Q 17-2

How could Article 17 CISG play a role in cases in which the offeree dispatches a rejection of the offer, but then decides that it does, in fact, want to accept?

In such cases, the offeree will need to send its acceptance by a means quicker than its rejection to ensure that the offer is not terminated by the rejection.

Q 17-3

Consider the approach of the CISG Advisory Council in light of the modern problems associated with spam filters addressed in Q 15-3 above.

Here again, if such a communication lands in the spam filter of the offeror, it is still effective if the offeror has agreed to receive communications in this way.

Article 18 CISG

Q 18-1

(a)  Was acceptance found to have been made in the Frankfurt am Main case (C 18-1)?

(b)  On which factors did the court base its decision?

(c)  How does this compare with the position under your domestic legal system?

(a)  No.

(b)  The delivery of only 2,700 pairs of shoes constituted a material modification of the offer and not an acceptance.

(c)  Depending on legal system: same result or acceptance with respect to the 2,700 pairs only.

Q 18-2

(a)  Was there acceptance in the Saarbrücken case (C 18-2)?

(b)  If so, how was it given?

(a) and (b) Yes, the buyer’s taking over of the goods indicated assent to the offer.

Q 18-3

(a)  Does the decision in the US Federal District Court case have implications for electronic commerce?

(b)  What kind of implications?

(c)  Is the position taken in this case in accordance with Article 13 UN Convention on the Use of Electronic Communications in International Contracts?

(a) and (b) Yes, if general conditions are attached to the email transmitting an offer, they will form part of the offer and the recipient will be held bound by them.

(c)  Yes. A general obligation exists that standard terms be made available to the recipient party. Here, the negotiation of a contract through electronic communication did not change this obligation, and the court found that attaching standard terms to the email made the terms available to the recipient.

Q 18-4

(a)  Was there acceptance by conduct in the US Court of International Trade case (C 18-4)?

(b)  What factors did the court take into account in reaching its decision?

(a)  No, there was not acceptance by conduct.

(b)  The court decided that regard should be had to the evidence of the parties concerning the arranging of the transactions, according to which there was nothing to suggest that production against the purchase orders should constitute acceptance where a contrary invoicing practice was in place.

Q 18-5

(a)  In the Arnhem case why did the court find that the seller’s terms had not been incorporated into the contract?

(b)  What factors did the court indicate were relevant in making this determination?

(a) and (b) It was neither alleged nor proven that the buyer explicitly accepted the seller’s general terms. As it was neither alleged nor proven that the parties had a steady business relationship, it cannot be assumed that the buyer accepted the seller’s general terms tacitly or expressly.

Q 18-6

(a)  Is there a requirement in the electronic communications world that the offeror actually read the acceptance?

(b)  Why or why not?

(c)  What are the problems associated with this approach? Refer to Q 15-3 above.

(a)  No, acceptance is effective when it enters the offeror’s server, regardless of whether it is ever actually read.

(b)  If the offeror has consented to receive communications in such a way, it bears the risk of their content.

(c)  If the acceptance remains unread (eg, because it lands in the spam filter), there is a risk that the offeror will conclude that its offer was not accepted. It may then conclude another contract with a different party or delay performance of the contract with the offeree.

Q 18-7

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