Q 23-1
Where can you find references to the time of the conclusion of the contract in the CISG? See if you can find them all!
Articles 1(2), 10(a), 16(1), 31(b) and (c), 35(2)(b) and (3), 42(1), 55, 57(2), 68, 71(1), 73(3), 74, 79(1) and 100(2).
Q 23-2
What is the situation in legal systems applying the mailbox rule?
The situation is the same in that acceptance becoming effective and the contract being concluded coincide. However, this takes place upon the dispatch of acceptance by the offeree, and not at the time of receipt by the offeror.
Q 23-3
What is the practical difference between Article 23 CISG and Article 10 OR?
Under Article 23 CISG, a contract is concluded when the acceptance reaches the offeror. Under Article 10 OR, a contract comes into effect at the time the acceptance is presented for dispatch, which will usually be earlier than the point in time at which the acceptance reaches the offeror.
Q 23-4
How would the point in time at which acceptance by conduct becomes effective be determined under the CISG?
Under Article 18(3) CISG, acceptance by conduct will become effective at the point in time at which the act is performed.
Q 23-5
Using your references from the answer to Q 23-1, explain the significance of the time of the conclusion of the contract in the context of each provision.
Article 1(2): determining whether parties have their places of business in different states at time of conclusion of contract.
Article 10(a): determining a party’s place of business at time of conclusion of contract.
Article 16(1): ability to revoke an offer before conclusion of contract.
Article 31(b) and (c): knowledge of location of goods and seller’s place of business at time of conclusion of contract.
Article 35(2)(b) and (3): time of conclusion of contract for communicating particular purpose/awareness by buyer of lack of conformity.
Article 42(1): seller’s knowledge of IP rights in goods at time of conclusion of contract.
Article 55: prices generally charged at time of conclusion of contract.
Article 57(2): seller to bear costs for change in place of business after conclusion of contract.
Article 68: transfer of risk of goods sold in transit at time of conclusion of contract.
Article 71(1): time for assessing anticipatory breach of contract conclusion of contract.
Article 73(3): purpose contemplated for deliveries at time of conclusion of contract.
Article 74: foreseeability of loss at time of conclusion of contract.
Article 79(1): foreseeability of impediment at time of conclusion of contract.
Article 100(2): applicability of Convention.
Q 23-6
What limitation does the Badajoz case put on the operation of Art 23 CISG?
An offer and acceptance needed to establish the conclusion of a contract pursuant to Art 23 CISG is not the same “acceptance” as a condition subsequent concerning the acceptance of samples in the case of a sample sale.
Q 23-7
How did the court determine the moment of contract conclusion in the absence of a formal written contract?
The court focused on parties’ intent instead of “rigid formalities”.
Q 23-8
If the parties had not agreed on the price, but had agreed on product and quantity, would a contract have been concluded under Article 23 CISG? Why or why not?
Agreeing on these aspects fulfilled Article 14(1) CISG, which supported the finding that it was the parties’ intent to conclude a contract.
