Q 17-1
(a) Is C 17-1 a case of Article 17 CISG or of Article 22 CISG?
(b) Taking Article 17 CISG (and Article 18 CISG) into account, do you agree with the reasoning of the court in C 17-1? Why or why not?
(c) Which facts would need to be different to apply Article 17 CISG?
(a) Article 22 CISG.
(c) Refer to Article 16 (2) CISG to determine when an offer is irrevocable.
Q 17-2
(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 17-3
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 17-4
(a) Consider the approach of the CISG Advisory Council in light of the modern problems associated with spam filters addressed in Q 15-5 above.
(b) What are the differences between the 2024 version and the 2003 version of the Advisory Council Opinion No. 1 as it pertains to Article 17, and what are the consequences?
(a) 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.
(b) The revised version reflects the prevalence of electronic means of communication, and the need to include more detailed guidance on the consequences. It also reflects that there may be a difference when communication reaches the system used for communication (e.g. an email server, which is under the responsibility of a third party) or when the contracting party itself is capable of retrieving said communication. The revised wording also allows to take into account situations where the contracting partner may have informed the other party that it will not have access to its electronic communication for a while. What remains is that the consent of the parties to use this form of communication is a prerequisite.
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