Q 18-1
(a) Was acceptance found to have been made in C 18-2?
(b) On which factors did the court base its decision?
(a) Yes.
(b) Receipt of the GTC and adoption of the terms of the sale quote that were sent in one email.
Q 18-2
(a) Does C 18-2 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 18-3
(a) Was there acceptance by conduct in the US Court of International Trade case (C 18-3)?
(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 18-4
(a) In C 18-4, the separate deliveries were not connected by a framework agreement. What is your opinion on using statements from former contract negotiations for later contracts?
(b) How does this impact the interpretation of conduct in this case?
(a) and (b): Treating contracts which are not connected by framework agreements but entered into between the same parties as nevertheless connected implies that the lack of rejections of previous agreed terms may impact contracts the parties otherwise agreed on separately. The silence, i.e. the lack of express revisiting of previous agreements, could impact the new contracts without the parties being aware. Consider the impact this may have over year-long business relationships with dozens of separate transactions.
Q 18-5
(a) In the Arnhem case (C 18-5) 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) Given the excerpts above, which of the following would qualify as "oral": communication made by voice, sign language, typed letters, emails, or emojis? Give reasons for your answer.
(b) Do you think it is necessary to distinguish between various means/modality/remoteness of transmissions (such as electronic, chat, WhatsApp, Snapchat, sound through air or through optic fiber)?
(c) Does your answer to (a) impact your answer to (b), and if so, how?
(d) How is the interaction with an AI chat or help desk chat to be classified?
(e) Does a delay in sending of messages impact whether it can be classified as "oral" in the sense of Article 18 CISG?
(a) Voice, sign language and typed letters (CISG Advisory Council Opinion No 1, para. 6.5), but not email (CISG Advisory Council Opinion No 1, para. 6.7). For emojis, while it is referred to in the CISG Advisory Council Opinion No 1, para. 6.5), in practice a differentiation must be made of where the emoji is used: in instant messaging or emails. While its categorisation as simplified language is certainly up for debate, referring to it as a means of communication misinterprets the function of emojis. As it is generally a reaction to another communication. emojis should aid the interpretation of the content, not the form of communication.
(b) No, as the determining factor is the instantaneous transfer.
(d) According to CISG Advisory Council Opinion No 1, paras. 1.3 and 6.10, they should be considered like any other electronic communication under control of a human. Due to the chat function, they further often resemble simultaneous communications and therefore can be classified as “oral”.
(e) Depending on the reason for the delay, i.e. whether it is the nature of said communication, it does. Oral communication requires instantaneous communication.
Q 18-7
(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 15-5 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 18-8
Explain how the ‘oral offers’ requirements for acceptance apply to electronic communications.
Oral offers must be accepted immediately even in the case of electronic communications (for example, skype).
Q 18-9
When was acceptance given in C 18-6?
Acceptance was given, and the contracts were formed, when Illinois Trading received VLM’s confirmation emails. These did not include the attorneys’ fees provision so this provision did not become part of the contracts.
Q 18-10
What was the consequence of the application of Art 18(2) in C 18-7?
Art 18(2) was significant because where acceptance of the offer was received determined whether the contract was concluded in Singapore or in New Zealand, which in turn determined the court of competent jurisdiction.
Q 18-11
When was acceptance given in C 18-8?
The court has provided two alternative scenarios. First, the Sales Confirmations issued by Shantou and counter-signed by Native constituted both offer and acceptance. Alternatively. Shantou’s shipment of goods after Native’s purchase order “clearly constituted an acceptance” and was effective at time of shipment.
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