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 15-5 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.
