Q 24-1
List all the provisions relevant for a communication ‘reaching’ a party.
Articles 15(1) and (2), 16(1), 17, 18(2), 20(1), 22, 47(2), 48(4), 63(2), 65(1) and (2), 79(4).
Q 24-2
(a) What is meant by an oral declaration?
(b) What is the situation when a declaration is received by an answering machine or by voicemail?
(c) Does an oral declaration need to be understood in order to be effective? Why or why not?
(a) An oral declaration is a verbal communication from one party to the other where both parties are present.
(b) An answering machine or voicemail does not satisfy the requirement of an oral declaration because the communication is not inter praesentes. It therefore falls under the rules for other forms of communication.
(c) Yes, an oral declaration does need to be understood, otherwise it does not ‘reach’ the recipient.
Q 24-3
What is the situation when the declaration arrives outside working hours?
If the declaration is an oral declaration made inter praesentes, then it does not matter that it is made outside working hours. If it is another form of communication, it should not be regarded as reaching the recipient until working hours commence.
Q 24-4
(a) What solution is proposed in the CISG Advisory Council Opinion No 1?
(b) How has it evolved between the 2003 and 2024 versions of the opinion?
(c) How does this address the needs of modern international trade? How does it hinder or complicate it?
(d) What would argue against the application of this solution? Consider again the issues addressed in Q 15-5 above.
(a) If the addressee has consented to receiving electronic messages in this way, the message reaches the addressee when it becomes capable of being retrieved by the addressee . Oral declarations include electronic sound in real time, so the inter praesentes consideration is reflected here.
(b) The issues that can affect electronic communication as well as its proliferation has required nuanced and detailed revisions. The revised version addresses concerns whether the addressee is accessible and when the communication is accessed and processed.
(c) While it does provide more nuanced guidance, it does not to the same extent detail what accessible means. While constant reachability is becoming a norm, assuming such is carrying its own risks. While exceptions can be addressed on a case-by-case basis, guidance based on accepted best practices could assist in avoiding potential complications or disputes.
(d) Technical problems may result in emails not being read or electronically transmitted sound not being heard. A possible solution to this would be to impose an acknowledgement requirement when dealing with electronic communication—this could be implied as a practice of the parties under Article 9(1) CISG.
