(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.

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.

(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.

(a)     Please set out all reasons for why the court found that a contract was not concluded in C14-4.

(b)     Do you agree with the court’s reasoning? Why or why not?

(a)     Because the course of dealing that had been established in the 20 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.

a)     C 14-5 does not expressly refer to Article 14 CISG but considers the CISG applicable. Identify which parts of the reasoning correspond to the requirements of Article 14 CISG.

b)     Which other provisions of the CISG play a role here in determining that the contract was validly concluded?

c)     Do you agree with the court’s reasoning? Why or why not? 

d)     What is your opinion on the different forms of correspondence used when concluding the contract?

(b)     Articles 11, 13, 15, 18 (1), and 19(1), for the timeline and the communication methods used for contracting; Articles 53, 55, 60, and 61 for the price determination as well as the buyer’s obligation to accept the goods.

Arguably 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. In C 14-6, the tribunal, however, found that delayed delivery could impact the price, which was one of the reasons why the tribunal found that no contract was concluded.

(a) ‘a larger number of furs’

(b) Articles 14 and 55 operate independently of one another. In C 14-8, the contract had been concluded with ‘an at least determinable price’, with the consequence that Article 55 did not need to be examined.

(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.

(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.

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

(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 that its intention to include such terms was apparent to the recipient party. Further, the other party must receive the text of the standard terms.

(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.

This conclusion seems odd at first sight, but on balance one perhaps cannot assume that the Internet is available everywhere in the world at any time. However, this statement is difficult to believe in most of Europe, Asia and North America.

It is hard to tell. On the one hand, if the court had concluded that it could be assumed that the Internet was available all the time, this would have lessened the burden on the seller to inform itself of the purchaser’s GTC. On the other hand, the court said that it was not the task of the recipient to obtain the GTC, but rather the task of the party seeking to rely on them to make them available. Consequently, the court may still have concluded that the buyer’s actions were insufficient.

(a)     The jurisprudence reflects that it is increasingly common to make terms and conditions available on one’s website and refer to them. The increased use of online means for business may impact the understanding of what has been “reasonably made available”.  In C 14-14, the court is reflecting on these developments, noting that requiring the other party to obtain the terms and conditions by itself may delay the transaction and move the onus to obtain said terms and conditions, when, as the court points out, “it is easy for the user of the clause to attach the general terms and conditions – which are generally advantageous to them – to their offer.” The court considers whether Article 7(1) CISG, i.e. good faith considerations, should be taken into account. The court discusses that the provision of general terms and conditions on the Internet is now generally considered sufficient, but also notes that direct links to said terms and conditions in the emails through which the contract is concluded, is one way to tackle the question of making said terms and conditions available.