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
Why does the CISG Advisory Council Opinion No 1 differentiate so clearly between a message being accessible and said message being read?
There can be a difference between the time when a message becomes accessible and when it is read. For purposes of evidence, the former can be confirmed, while it can be difficult to prove the latter (see in particular para. 5.2-5.3 of CISG Advisory Council Opinion No 1).
Q 15-4
What problems can you perceive associated with the ‘receipt’ of messages by electronic communication?
Non-exhaustive examples:
- Spam filters
- Firewalls and size limitations of servers
- External issues such as server outages
- Limited internet access
- Time zone differences in correspondence
- Electronic communications effectively limiting the situations in which Article 15(2) CISG per its wording could apply.
Q 15-5
(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 482 PRC Civil Code 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a message identified as spam mail immediately, the circumstances of the case must dictate whether or not it was validly withdrawn.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) Article 482 PRC Civil Code expressly refers to instantaneous communications, including email, but does not take into account spam filters. There can be a concern with the time limit running from the moment it “reaches” the offeree without further clarification when this may be the case. In principle, however, the same as under (a) should apply to Article 482 PRC Civil Code. 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.
