OPINION: CISG-AC PUBLISHES FIRST OPINION+
SEC-NOTE-1: + The following Introductory Note and Opinion were provided
by Professor Albert Kritzer, Executive Secretary of the Institute of
International Commercial Law, Pace University School of Law. His assistance in
securing this material as well as his unbounded guidance and support of the Pace
International Law Review and the Pace International Law program cannot be fully
thanked in a mere footnote.
NAME: Dr. Loukas Mistelis*
BIO: * Loukas A Mistelis, LLB, MLE, Dr. iuris, MCIArb, Advocate, is the
Clive M Schmitthoff Senior Lecturer in Commercial Law at the Centre for
Commercial Studies, Queen Mary, University of London. He acts as Secretary of
the CISG-AC. He may be contacted at
L.Mistelis@qmul.ac.uk
SUMMARY:
… I. Introduction to the CISG Opinion … The term “oral” includes
electronically transmitted sound provided that the offeree expressly or
impliedly has consented to receiving electronic communication of that type, in
that format, and to that address. … The term “oral” includes electronically
transmitted sound and communications in real time provided that the offeree
expressly or impliedly has consented to receiving electronic communication of
that type, in that format, and to that address. … The offeror may provide the
information by electronically conveyed sound or by an electronic message under
the precondition that the sender of the late acceptance has indicated that he is
willing to receive such electronic messages. … CISG Arts. 8 and 9 may be of
assistance in determining whether the offeree has impliedly indicated his
willingness to receive such messages. … Information to the buyer from the
seller that the seller will not perform within the fixed period can be conveyed
by an electronic message. … Information to the seller from the buyer that the
buyer will not perform within the fixed period can be conveyed by an electronic
message. …
TEXT:
[*454]
I. Introduction to the CISG Opinion
In a world of countless legal abbreviations, one more is being added in our
jargon. CISG-AC stands for Advisory Council of the United Nations Conventions on
Contracts for the International Sale of Goods (CISG). This is an unusual
Convention and this is an unusual Council.
Knowingly the CISG is one of the most successful international instruments which
produce uniform substantive rules for international trade. It is often pointed
out that, world-wide two thirds of international sale transactions are conducted
between parties based in a CISG country. In addition more than 1,000 judicial
and arbitral decisions have been identified and are now featured in the relevant
databases, such as
http://www.cisg.law.pace.edu. In this sense, CISG is a successful and mature
text of protean nature, which has been supported and enhanced by legal practice
over the last 15 years. Most recently, UNCITRAL, the CISG formulating agency,
has completed a digest which provides a comprehensive presentation of case law
on the CISG and aims at assisting courts in the application of the Convention.
The CISG-AC has been established in 2001 as a private initiative to respond to
the emerging need to address some controversial, unresolved issues relating to
the CISG which would merit interpretative guidance. Professor Albert Kritzer,
Executive Secretary of the Institute of International Commercial Law, Pace
University School of Law, has been the spiritus rector of the idea of an
interpretative council, an idea which has been mooted reluctantly in meetings of
international organizations before. In a meeting in Paris in June 2001 some of
the most eminent scholars in CISG gathered to explore the possibility of
creating a CISG interpretative council.
The idea received warm support and the founding members of the CISG-AC are
Professor Dr. Eric E. Bergsten, Emeritus of [*455] Pace University, formerly
Secretary General of UNCITRAL, Professor Dr. Michael Joachim Bonell, University
of Rome La Sapienza, formerly Secretary General of UNIDROIT, Professor E. Allan
Farnsworth, Columbia University, New York, Professor Dr. Alejandro Garro,
Columbia University, Professor Sir Roy Goode, University of Oxford, Professor
Dr. Sergei N. Lebedev, Moscow Institute of International Relations, Professor
Dr. Jan Ramberg, Emeritus, Stockholm University, Professor Dr. Dr. h.c. Peter
Schlechtriem, Emeritus, University of Freiburg, Professor Hiroo Sono, Kyushu
University and Professor Dr. Claude Witz, Universit<um a>t des Saarlandes and
Universite Robert Schuman, Strasbourg. The meeting was also attended by Albert
Kritzer, Pace, and Dr. Loukas Mistelis, Clive M. Schmitthoff Senior Lecturer in
International Commercial Law, Centre for Commercial Law Studies, Queen Mary,
University of London who represented the two sponsoring institutions. Professor
Schlechtriem was elected as the first Chair, and Dr. Mistelis as the Secretary
of CISG-AC. Two more members were invited to join the Council in June 2003,
Professor Dr. M<sof> del Pilar Perales Viscasillas, Universidad Carlos III,
Madrid, and Professsor Dr. Ingeborg Schwenzer, University of Basel.
The CISG-AC is a private initiative which aims at promoting a uniform
interpretation of the CISG. It is a private initiative in the sense that its
members do not represent countries or legal cultures, but they are scholars who
look beyond the cooking pot for ideas and for a more profound understanding of
issues relating to CISG. Accordingly the group is afforded the luxury of being
critical of judicial or arbitral decision and of addressing issues not dealt
with previously by adjudicating bodies. The Council is guided by the mandate of
Article 7 of the Convention as far its interpretation and application are
concerned: the paramount regard to international character of the Convention and
the need to promote uniformity.
In practical terms, the primary purpose of the CISG-AC is to issue opinions
relating to the interpretation and application of the Convention on request or
on its own initiative. Requests may be submitted to the CISG-AC, in particular,
by international organizations, professional associations and adjudication
bodies. This first opinion is a response to an informal request by the
International Chamber of Commerce for the Council to [*456] reflect on issue
of electronic communications and the ability of the CISG to respond to such
challenges. The CISG-AC invited Professor Dr. Christina Ramberg, University of
G<um o>teborg, to submit a report to the Council’s consideration. The opinion
has been discussed in three sessions. The CISG-AC is of the opinion that the
Convention can accommodate electronic communications as well as it does
traditional communications and the published opinion suggests interpretation of
all CISG provisions which pertain to communications.
Three more opinions will be completed in the next months. One opinion is a
response to a request by the Association of the Bar of the City of New York
Committee on Foreign and Comparative Law to address the question of the parol
evidence rule. The other two opinions address the issue of reasonable notice for
lack of conformity, a highly controversial issue in judicial practice, and the
question of exemption from liability for economic hardship.
The CISG-AC wishes to publicize all its opinions widely through printed and
electronic media and wishes to receive any comments the readership may have. The
preferred citation style is: CISG-AC, Opinion no 1: Electronic Communications
under CISG, 15 August 2003; Rapporteur: Professor Christina Ramberg, followed by
a reference to the place of publication.
II. First CISG Advisory Opinion: Electronic Communications under CISG
A. CISG Art. 11
A contract of sale need not be concluded in or evidenced by writing and is not
subject to any other requirement as to form. It may be proved by any means,
including witnesses.
OPINION:
A contract may be concluded or evidenced by electronic communications.
COMMENT:
11.1. The purpose of CISG Art. 11 is to ensure that there are no form
requirements of writing connected to the formation of contracts. The issue of
electronic communications beyond telegram [*457] and telex was not considered
during the drafting of the CISG in the 1970s. By not prescribing any form in
this article, CISG enables the parties to conclude contracts electronically.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
B. CISG Art. 13
For the purpose of this Convention ‘writing’ includes telegram and telex.
OPINION:
The term “writing” in CISG also includes any electronic communication
retrievable in perceivable form.
COMMENT:
13.1. CISG Arts. 11, 12, 13, 21, 29 and 96 contain the term “writing”. In the
traditional paper world this term was uncomplicated and referred to documents
written on paper [or other durable medium] by pencil, pen, etc. The problem is
now whether electronic documents other than telegram and telex may also
constitute “writing”. The prerequisite of “writing” is fulfilled as long as the
electronic communication is able to fulfill the same functions as a paper
message. These functions are the possibility to save (retrieve) the message and
to understand (perceive) it.
13.2. The parties may agree on what type of written form they intend to use (CISG
Art. 6). They may, for instance, agree that they only accept paper letters sent
by a particular courier service. Unless the parties have limited the notion of
writing, there should be a presumption that electronic communications are
included in the term “writing”. This presumption could be strengthened or
weakened in accordance to the parties’ prior conduct or common usages (CISG Art.
9(1) and (2).
13.3. This Opinion does not deal with reservations made by States in accordance
with CISG Art. 96 nor does it impose any restrictions on States that have made
such a reservation.
See also UNCITRAL Model Law on Electronic Commerce Art. 6.
[*458]
C. CISG Art. 15
(1) An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal
reaches the offeree before or at the same time as the offer.
OPINION
The term “reaches” corresponds to the point in time when an electronic
communication has entered the offeree’s server.
An offer, even if it is irrevocable, can be withdrawn if the withdrawal enters
the offeree’s server before or at the same time as the offer reaches the offeree.
A prerequisite for withdrawal by electronic communication is that the offeree
has consented, expressly or impliedly, to receive electronic communications of
that type, in that format and to that address.
COMMENT
15.1. An offer is not effective until it reaches the offeree (CISG Art. 15(1))
and may be withdrawn if the withdrawal reaches the offeree before or at the same
time as the offer (CISG Art. 15(2)). In traditional means of communication this
rule enables the offeror to withdraw his offer by a faster means of
communication. He may, for instance, send an offer by letter through ordinary
mail (snail mail) and then later withdraw it by sending a fax that reaches the
offeree before the letter. The problem in relation to electronic means of
communication is that there are rarely any practical means of faster
communication than electronic messages sent by e-mail or communicated over
websites or other EDI-arrangements. Thus a question of practical importance
arises when the offer is sent by a traditional letter written on a paper and
sent by traditional mail while the withdrawal is sent electronically.
15.2. The difficulty from a conceptual point of view is that the addressee of an
electronic withdrawal does not have to be physically present at the place where
the message arrives. The place of the message is a functional concept rather
than a physical [*459] one. The message could be located on any server in the
world, including the sender’s – the important question is whether the addressee
can retrieve it. The following are the most important situations that are likely
to be considered in relation to the term “reaches” in the context of electronic
communications:
15.3. Situation “A”. From a pragmatic point of view it is clear that the
addressee of an electronic withdrawal may read it as soon as it is located on
his server. He may have problems reaching his server due to internal problems in
his network system. This is normally within his “sphere of influence”.
Irrespective of how harsh it may be for the offeree that messages have arrived
to his server but cannot be read by him due to internal problems, it is not
appropriate to put the risk on the offeror for the offeree’s technical problems.
The offeree may reduce the risk by choosing appropriate internet service
providers or designing an adequate technical infrastructure to make sure that
the internal communication functions satisfactorily. The sender of an electronic
communication ought not to assume this risk.
15.4. Situation “B”. It is not sufficient that a withdrawal has entered the
offeree’s server. The offeree must also have expressed somehow that he is
willing to receive electronic communications. The offeree’s willingness to
accept electronic communications must be taken into account in determining
whether an electronic withdrawal has “reached” the offeror. The consent of the
offeree may be evident under CISG Art. 8, governing the interpretation of the
conduct of the parties. CSIG Art. 9(1) may also be relevant if the parties have
established a practice in their business. CISG Art. 9(2) may apply in
connections to trade usages which the parties knew or ought to have known and
which in international trade are widely known to, and regularly observed by,
parties to contracts of the type involved in the particular trade concerned.
15.5. Situation “C”. A related problem is when the e-mail address is not
correctly stated in the message containing a withdrawal. Such messages may enter
the addressee’s server – but never reach the addressee personally, so that it
cannot be accessed by the addressee. An example is when the correct email
address is “Thomas@companyx.com”
but the sender writes “Tomas@companyx.com.”
[*460] This wrongly spelled e-mail may sometimes enter Thomas’ server, but
gets stuck in the server, since the server cannot find Tomas without the ‘h’.
For such situations the risk is on the sender, since Thomas has not indicated
his willingness to receive electronic messages incorrectly addressed. Sometimes
an electronic communication with an incorrect address is forwarded by the
postmaster to the correct address. If the forwarded communication reaches the
addressee’s server in time, the withdrawal is effective. The addressee has in
such a situation informed the postmaster that e-mails incorrectly addressed in a
certain way should be forwarded to him, and by doing so he has expressed his
general willingness to receive also electronic messages incorrectly addressed.
15.6. Situation “D”. Another problem in relation to “reaches” is whether the
offeree is able to process and understand the electronic communication. Due to
incompatible computer programs, the text appearing at the offeree’s computer may
be incomprehensible. The situation is rather close to the problem of a message
being written in a language that the offeree is unable to understand. The
question at issue here is whether an electronic withdrawal that cannot be
accurately processed by the offeree has “reached” the offeree when it has
entered his server. The crucial issue is to what extent the offeree has
indicated that he is willing to receive that type of electronic communications.
It is not sufficient that the offeree has agreed to generally receive electronic
communications. He must have consented to receiving electronic messages of that
type, in that format, and to that address. Here again, CISG Art. 8 will be
relevant for the interpretation of the conduct of parties, CISG Art. 9(1) will
be relevant for any practices established between the parties, while CISG 9(2)
may indicate, as a matter of trade usage, whether the offeror has impliedly or
expressly agreed to receive electronic messages of a certain type.
See also UNCITRAL Model Law on Electronic Commerce Art. 15
[*461]
D. CISG Art. 16(1)
(1) Until a contract is concluded an offer may be revoked if the revocation
reaches the offeree before he has dispatched an acceptance.
OPINION
In case of electronic communications the term “reaches” corresponds to the point
in time when an electronic communication has entered the offeree’s server. An
offer may be revoked if the revocation enters the offeree’s server before the
offeree has dispatched an acceptance. A prerequisite is that the offeree has
consented, expressly or impliedly, to receiving electronic communications of
that type, in that format, and to that address.
In electronic communications the term “dispatch” corresponds to the point in
time when the acceptance has left the offeree’s server. The offeror may revoke
the offer by sending a revocation that enters the offeree’s server before the
offeree’s acceptance leaves the offeree’s server. A prerequisite is that the
offeror has consented, expressly or impliedly, to receiving electronic
communications of that type, in that format and to that address.
COMMENT
16.1. This provision enables the offeror to revoke an offer until the offeree
has dispatched his acceptance. The revocation must have entered the offeree’s
server before the offeree has dispatched his acceptance.
16.2. For restrictions on the effectiveness of “reaches”, see comments in
Article 15. For the concept of “dispatch” see the comment 21.3
See also UNCITRAL Model Law on Electronic Commerce Art. 15
E. CISG Art. 17
An offer, even if it is irrevocable, is terminated when a rejection reaches the
offeror.
[*462]
OPINION
The term “reaches” corresponds to the point in time when an electronic message
has entered the offeror’s server. An offer is terminated when a rejection enters
the offeror’s server. A prerequisite is that the offeror has consented expressly
or impliedly to receiving electronic communications of that type, in that
format, and to that address.
COMMENT
17.1. An offer is terminated when rejection reaches the offeror. In electronic
environments the exact time of “reaches the offeror” can be determined. The
offeree can no longer create a contract by dispatching an indication of assent.
If the offeree changes his mind after having dispatched a rejection of the offer
and wishes to conclude a contract, the indication of assent must enter the
offeror’s server before the rejection enters the offeror’s server
17.2. For restrictions on the effectiveness of “reaches” see comments in Article
15.
See also UNCITRAL Model Law on Electronic Commerce Art. 15
F. CISG Art. 18(2)
(2) An acceptance of an offer becomes effective at the moment the indication of
assent reaches the offeror. An acceptance is not effective if the indication of
assent does not reach the offeror within the time he has fixed, or, if no time
is fixed, within a reasonable time, due to account being taken of the
circumstances of the transaction, including the rapidity of the means of
communication employed by the offeror. An oral offer must be accepted
immediately unless the circumstances indicate otherwise.
OPINION
An acceptance becomes effective when an electronic indication of assent has
entered the offeror’s server, provided that the offeror has consented, expressly
or [*463] impliedly, to receiving electronic communications of that type, in
that format, and to that address.
The term “oral” includes electronically transmitted sound in real time and
electronic communications in real time. An offer that is transmitted
electronically in real time communication must be accepted immediately unless
the circumstances indicate otherwise provided that the addressee consented
expressly or impliedly to receiving communications of that type, in that format,
and to that address.
COMMENT
18.1. The underlying purpose of this article is to ensure that the offeror has
an opportunity to read the indication of assent if he so chooses. It is not
required that the offeror actually have read the indication of assent, but
rather that such indication of assent become accessible for reading (the
distinction between “reach the mind” and “reach the desk” or “reach the legal
entity”). Accordingly, when an indication of assent has entered the offeror’s
sphere of control, it must be assumed to have reached the offeror.
18.2. The proposition that an indication of assent only needs to be accessible
and not actually read is designed to facilitate evidence. It is possible (more
or less easily, but at least conceptually) to prove when a message becomes
accessible; it is very difficult to prove when someone actually addressed his
mind to it.
18.3. For restrictions on the effectiveness of “reaches” see comments in Article
15.
18.4. The requirement that an oral offer must be accepted immediately indicates
that oral offers are only binding during the immediate negotiations. When
negotiations are carried out in real time, whether by sound or by typed letters,
the situation is similar to oral negotiations and the presumption is that the
offers must be accepted on the spot, in immediate connection to the negotiations
and in real time. The relevant factor is that the other party is aware of the
offer and has a possibility to respond immediately. An offer that is
communicated electronically [*464] in real time not by sound but in writing by
typed letters must also be accepted immediately unless the circumstances
indicate otherwise. Offers in chat rooms and other types of real time
communication must be accepted immediately.
See also UNCITRAL Model Law on Electronic Commerce Art. 15.
G. CISG Art 19(2)
(2) However, a reply to an offer which purports to be an acceptance but contains
additional or different terms which do not materially alter the terms of the
offer constitutes an acceptance, unless the offeror, without undue delay,
objects orally to the discrepancy or dispatches a notice to that effect. If he
does not so object, the terms of the contract are the terms of the offer with
the modifications contained in the acceptance.
OPINION
The term “oral” includes electronically transmitted sound provided that the
addressee expressly or impliedly has consented to receiving electronic
communication of that type, in that format, and to that address.
The term “notice” includes electronic communications provided that the addressee
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
COMMENT
19.1. The purpose of this article is to make a message that does not constitute
an acceptance effective as an acceptance unless the offeror provides a quick
notice that the purported acceptance is not an acceptance. Such information by
the offeror could be conveyed by electronic sound or by other electronic
messages.
19.2. For restrictions on the effectiveness of “reaches” see comments in Article
15.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
[*465]
H. CISG Art. 20(1)
(1) A period of time for acceptance fixed by the offeror in a telegram or a
letter begins to run from the moment the telegram is handed in for dispatch or
from the date shown on the letter or, if no such date is shown, from the date
shown on the envelope. A period of time for acceptance fixed by the offeror by
telephone, telex or other means of instantaneous communication, begins to run
from the moment that the offer reaches the offeree.
OPINION
A period of time for acceptance fixed by the offeror in electronic real time
communication begins to run from the moment the offer enters the offeree’s
server.
A period of time for acceptance fixed by the offeror in e-mail communication
begins to run from the time of dispatch of the e-mail communication.
“Means of instantaneous communications” includes electronic real time
communication.
The term “reaches” is to be interpreted to correspond to the point in time when
an electronic communication has entered the offeree’s server.
COMMENT
20.1. CISG Art. 20(1) provides a help to the interpreter of ambiguously stated
periods for acceptance. When a period of, for instance, four days is stated in
an offer without any indication from when this four-day period starts to run,
CISG Art. 20(1) provides a different starting point depending on the medium the
offer was sent. For telegrams the period starts from the time it is handed in
for dispatch. If it is sent in a letter, from the date shown on the letter, or
if no such date is shown, from the date on the envelope. For telephone, telex or
other means of instantaneous communication the period begins to run from the
moment that the offer reaches the offeree.
20.2. The problem now in consideration is how to determine when the period
starts to run in case the offer is made by electronic means. We can envisage
three main types of electronic [*466] messages, (1) offers in e-mail, (2)
offers at passive web sites, and (3) offers at chat sites where communication
occurs in real time.
20.3. E-mail is not instantaneous communication and, with respect to dating, it
is not wholly equivalent to letters sent in envelopes. CISG does not provide any
interpretative help with respect to e-mails and uncertain situations must be
solved by ordinary means of interpretation taking into account that the party
being unilaterally bound (the offeror) normally deserves more protection.
E-mails normally produce information about when they were sent and when they
were received. CISG provides no direct guidance as to whether the time span
starts to run from the time of sending or receiving. A period of time for
acceptance fixed by the offeror in e-mail communication begins to run from the
time of dispatch of the e-mail communication. This is so because this time can
be easily ascertained and e-mails can be seen as functional equivalents of
letters.
Passive Web Sites
20.4. When offers are contained in web sites it is often uncertain whether they
constitute offers in the legal sense. However, the web site holder may
explicitly state that his offer is binding during a certain period of time. No
guidance can be found in CISG where the web site holder has provided a time
limit of three days without specifying from when the time limit starts to run.
Uncertain situations must be solved by ordinary means of interpretation taking
into account that the party being unilaterally bound (the offeror) normally
deserves more protection. This opinion does not cover non-real time
communication over passive websites.
Chatting in Real Time
20.5. Parties may communicate over the Internet by real-time communication (this
is common for chat-programs). The technique is such that if the sender writes an
“a” the letter “a” immediately appears on the addressee’s screen. The parties
are both present at the same time and they may talk orally or write to each
other just as if they were present in the same room or were talking over the
phone. This type of communication qualifies as “instantaneous”. CISG Art. 20(1)
applies also to electronic [*467] communication in real time. If the sender
sends an offer and stipulates that it is binding for two hours, the period
starts to run from the point in time when the message reaches the addressee,
i.e. immediately. For real-time communication it is assumed that the addressee
has indicated his willingness to receive electronic messages of the relevant
type.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
I. CISG Art. 21(1)
(1) A late acceptance is nevertheless effective as an acceptance if without
delay the offeror orally so informs the offeree or dispatches a notice to that
effect.
OPINION
The term “oral” includes electronically transmitted sound provided that the
offeree expressly or impliedly has consented to receiving electronic
communication of that type, in that format, and to that address.
The term “notice” includes electronic communications provided that the offeree
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
COMMENT
21.1. Information to the offeree about the late acceptance can be given in an
electronic message. The important factor is that the information be conveyed to
the offeree, not in what form it was conveyed.
21.2. For the effectiveness of electronic communication see comments in Art. 15
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
J. CISG Art. 21(2)
(2) If a letter or other writing containing a late acceptance shows that it has
been sent in such circumstances that if its transmission had been normal it
would have reached the offeror in due time, the late acceptance is effective as
an acceptance unless, without delay, the offeror orally informs the offeree that
he considers [*468] his offer as having lapsed or dispatches a notice to that
effect.
OPINION
The term “writing” covers any type of electronic communication that is
retrievable in perceivable form. A late acceptance in electronic form may thus
be effective according to this article.
The term “oral” includes electronically transmitted sound and communications in
real time provided that the offeree expressly or impliedly has consented to
receiving electronic communication of that type, in that format, and to that
address.
The term “notice” includes electronic communications provided that the offeree
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
The term “dispatch” corresponds to the point in time when the notice has left
the offeree’s server. A prerequisite is that the offeree has consented expressly
or impliedly to receiving electronic messages of that type, in that format, and
to that address.
COMMENT
21.3. The purpose of this Article is to make a delayed acceptance effective when
the offeror does not inform the other party that the acceptance has been delayed
and the acceptance has reached the offeror too late. A typical situation is when
an electronic acceptance is delayed and does not reach the offeror within the
normal time-span. The article is only applicable if the acceptance is sent in a
letter or other writing. The article applies also when the acceptance is sent by
an electronic message as long as this electronic message fulfils the two
functions of writing, i.e. that it can be understood and saved.
21.4. When the offeror provides a quick notice that that the acceptance has
arrived too late, the acceptance is not effective. Information to the offeree
about the late acceptance can be given in an electronic message. The important
factor is that the [*469] information be conveyed to the offeree, not in what
form it is conveyed. According to this Article such notice shall be communicated
orally or by a [written] notice. The offeror may provide the information by
electronically conveyed sound or by an electronic message under the precondition
that the sender of the late acceptance has indicated that he is willing to
receive such electronic messages.
21.5. It is enough that the notice has been dispatched; it does not have to
reach the addressee. However, it must have been dispatched correctly. This means
that the address must be correctly stated and that the sender uses a computer
program that the addressee has indicated he is willing to accept.
21.6. The offeror should inform the offeree about a late acceptance by
dispatching a notice. Dispatch occurs when the notice leaves the offeror’s
server. If, however, the offeree does not use the kind of electronic
communication that the notice is sent in, the offeror is not considered to have
dispatched the notice. The offeree must have indicated that he is willing to
receive electronic acceptances of the type and format used by the offeror. CISG
Arts. 8 and 9 may be of assistance in determining whether the offeree has
impliedly indicated his willingness to receive such messages.
See also UNCITRAL Model Law on Electronic Commerce Arts. 5 and 6.
K. CISG Art. 22
An acceptance may be withdrawn if the withdrawal reaches the offeror before or
at the same time as the acceptance would have become effective.
OPINION
The term “reaches” corresponds to the point in time when an electronic
communication has entered the offeror’s server, provided that the offeror
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
[*470]
COMMENT
22.1. This article intends to provide a last time for withdrawal of an
acceptance. In traditional means of communication this rule enables the sender
of an acceptance to withdraw his acceptance by a faster means of communication.
He may, for instance, send an acceptance by ordinary mail (snail mail) and later
withdraw it by sending a fax that reaches the offeror before the mail. The
problem in relation to electronic means of communication is that there are
rarely any practical means of faster communication than electronic messages sent
by e-mail or communicated over websites or other EDI-arrangements. However, the
question becomes of practical importance in situations where the acceptance is
sent by traditional paper mail and the withdrawal is sent electronically.
22.2. The underlying purpose of this article is to ensure that the offeror has
an opportunity to read the withdrawal if he so chooses. It is not required that
the offeror actually read the withdrawal, but rather that the withdrawal becomes
accessible for reading (the distinction between ‘reach the mind’ and “reach the
desk” or “reach the legal entity”). Therefore, when a withdrawal of assent has
entered the offeror’s sphere of control, it must be assumed to have reached the
offeror.
22.3. The proposition that a withdrawal only needs to be accessible and not
actually read is designed to facilitate evidence. It is possible (more or less
easily, but at least conceptually) to prove when a message becomes accessible;
it is very difficult to prove when someone actually addressed his mind to it.
See also UNCITRAL Model Law on Electronic Commerce Art. 15
L. CISG Art. 24
For the purposes of this Part of the Convention, an offer, declaration of
acceptance or any other indication of intention “reaches” the addressee when it
is made orally to him or delivered by any other means to him personally, to his
place of business or mailing address or, if he does not have a place of business
or mailing address, to his habitual residence.
[*471]
OPINION
The term “reaches” corresponds to the point in time when an electronic
communication has entered the addressee’s server, provided that the addressee
expressly or impliedly has consented to receiving electronic communications of
that type, in that format, and to that address.
The term “orally” includes electronically transmitted sound and other
communications in real time provided that the addressee expressly or impliedly
has consented to receive electronic communications of that type, in that format,
and to that address.
COMMENT
No comment since the issues are covered under the relevant articles concerning
“reaches” in articles 15, 16(1), 17, 18(2), 20(1), 21(2), 22 and “oral” in
articles 18(2) and 2(2)
M. CISG Art. 26
A declaration of avoidance of the contract is effective only if made by notice
to the other party.
OPINION
The term “notice” includes electronic communications, provided that the
addressee expressly or impliedly has consented to receiving electronic messages
of that type, in that format, and to that address.
COMMENT
26.1. Information to the other party that the contract is avoided can be given
in an electronic message. The important factor is that the information be
conveyed to the offeree, not in what form it is conveyed.
26.2. For the effectiveness of electronic notices see comments in Article 15.
See also UNCITRAL Model Law on Electronic Commerce Art. 5
[*472]
N. CISG Art. 27
Unless otherwise expressly provided in this Part of the Convention, if any
notice, request or other communication is given or made by a party in accordance
with this Part and by means appropriate in the circumstances, a delay or error
in the transmission of the communication or its failure to arrive does not
deprive that party of the right to rely on the communication.
OPINION
A notice, request or other communication may be given or made electronically
whenever the addressee expressly of impliedly has consented to receiving
electronic messages of this type, in that format, and to that address.
COMMENT
27.1. Notices, requests or other communication to a party can be given in an
electronic message. The important factor is that the information be conveyed to
the other party, not in what form it is conveyed.
27.2. For the effectiveness of electronic notices, requests or other
communication see comments in Article 15.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
O. CISG Art. 32(1)
(1) If the seller, in accordance with the contract or this Convention, hands the
goods over to a carrier and if the goods are not clearly identified to the
contract by markings on the goods, by shipping documents or otherwise, the
seller must give the buyer notice of the consignment specifying the goods.
OPINION
The term “notice” includes electronic communications, provided that the buyer
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
[*473]
COMMENT
32.1. Information to the buyer about consignment of the goods can be given in an
electronic message. The important factor is that the information be conveyed to
the buyer, not in what form it is conveyed.
32.2. For the effectiveness of information to the buyer see comments in Articles
15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5
P. CISG Art. 39
(1) The buyer loses the right to rely on a lack of conformity of the goods if he
does not give notice to the seller specifying the nature of the lack of
conformity within a reasonable time after he has discovered it or ought to have
discovered it.
OPINION
The term “notice” includes electronic communications provided that the seller
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
COMMENT
39.1. Information to the seller about lack of conformity of the goods can be
given in an electronic message. The important factor is that the information be
conveyed to the seller, not in what form it is conveyed.
39.2. For the effectiveness of notice to the seller see comments in Articles 15
and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5
Q. CISG Art. 43
(1) The buyer loses the right to rely on the provisions of article 41 or article
42 if he does not give notice to the seller specifying the nature of the right
or claim of the third party within a reasonable time after he has become aware
or ought to have become aware of the right or claim.
[*474] (2) The seller is not entitled to rely on the provisions of the
preceding paragraph if he knew of the right or claim of the third party and the
nature of it.
OPINION
The term “notice” includes electronic communications provided that the seller
expressly or impliedly has consented to receiving electronic messages of that
type, in that format, and to that address.
COMMENT
43.1. Information to the seller about the nature of a right or claim of a third
party can be given in an electronic message. The important factor is that the
information be conveyed to the seller, not in what form it is conveyed.
43.2. Even when the seller has not indicated his willingness to receive
electronic messages of the relevant type, it may be nevertheless established
that he was aware of the claim in accordance with CISG Art. 43(2).
43.3. For the effectiveness of notice to the seller see comments in Articles 15
and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
R. CISG Art. 47
(1) The buyer may fix an additional period of time of reasonable length for
performance by the seller of his obligations.
(2) Unless the buyer has received notice from the seller that he will not
perform within the period so fixed, the buyer may not, during that period,
resort to any remedy for breach of contract. However, the buyer is not deprived
thereby of any right he may have to claim damages for delay in performance.
OPINION
The term “notice” includes electronic communications.
[*475]
COMMENT
47.1. Information to the buyer from the seller that the seller will not perform
within the fixed period can be conveyed by an electronic message. When the buyer
has received such electronic notice, he may choose to resort to a remedy for
breach of contract.
S. CISG Art. 63
(1) The seller may fix an additional period of time of reasonable length for
performance by the buyer of his obligations.
(2) Unless the seller has received notice from the buyer that he will not
perform within the period so fixed, the seller may not, during that period,
resort to any remedy for breach of contract. However, the seller is not deprived
thereby of any right he may have to claim damages for delay in performance.
OPINION
The term “notice” includes electronic communications.
COMMENT
63.1. Information to the seller from the buyer that the buyer will not perform
within the fixed period can be conveyed by an electronic message. When the
seller has received such electronic notice, he may resort to any relevant remedy
for the breach of contract.
T. CISG Art. 65
(1) If under the contract the buyer is to specify the form, measurement or other
features of the goods and he fails to make such specification either on the date
agreed upon or within a reasonable time after receipt of a request from the
seller, the seller may, without prejudice to any other rights he may have, make
the specification himself in accordance with the requirements of the buyer that
may be known to him.
(2) If the seller makes the specification himself, he must inform the buyer of
the details thereof and must fix a reasonable time within which the buyer may
make a different specification. If, after receipt of such a communication, the
buyer fails [*476] to do so within the time so fixed, the specification made
by the seller is binding.
OPINION
Specifications and communications may be electronic provided that the addressee
expressly or impliedly consented to receiving such communications.
COMMENT
65.1. Information to the other party about specifications or communications
about specifications can be given in an electronic message. The important factor
is that the information be conveyed to the other party, not in what form it is
conveyed.
65.2. For the effectiveness of specifications and communications to the other
party see comments in Articles 15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
U. CISG Art. 67
(1) If the contract of sale involves carriage of the goods and the seller is not
bound to hand them over at a particular place, the risk passes to the buyer when
the goods are handed over to the first carrier for transmission to the buyer in
accordance with the contract of sale. If the seller is bound to hand the goods
over to a carrier at a particular place, the risk does not pass to the buyer
until the goods are handed over to the carrier at that place. The fact that the
seller is authorized to retain documents controlling the disposition of the
goods does not affect the passage of the risk.
(2) Nevertheless, the risk does not pass to the buyer until the goods are
clearly identified to the contract, whether by markings on the goods, by
shipping documents, by notice given to the buyer or otherwise.
OPINION
The term “notice” includes electronic communications provided that the buyer
expressly or impliedly has consented to receiving electronic communications of
that type, in that format and to that address.
[*477]
COMMENT
67.1. Information to the buyer about the goods being clearly identified to the
contract can be given in an electronic message. The important factor is that the
information be conveyed to the buyer, not in what form it is conveyed.
67.2 The buyer need not have consented to electronic communication in order to
make an electronic notice under article 67(2) effective. The reason is that the
buyer’s consent is not needed for other modes of identification such as markings
of the goods.
67.3. For the effectiveness of communications to the buyer about identification
see comments in Articles 15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
V. CISG Art. 71
(1) A party may suspend the performance of his obligations if, after the
conclusion of the contract, it becomes apparent that the other party will not
perform a substantial part of his obligations as a result of:
(a) a serious deficiency in his ability of perform or in his creditworthiness;
or
(b) his conduct in preparing to perform or in performing the contract.
(2) If the seller has already dispatched the goods before the grounds described
in the preceding paragraph become evident, he may prevent the handing over of
the goods to the buyer even though the buyer holds a document which entitles him
to obtain them. The present paragraph relates only to the rights in the goods as
between the buyer and the seller.
(3) A party suspending performance, whether before or after dispatch of the
goods, must immediately give notice of the suspension to the other party and
must continue with performance if the other party provides adequate assurance of
his performance.
OPINION
The term “notice” includes electronic communications, provided that the
addressee expressly or impliedly has consented to receiving electronic
communications of that type, in that format, and to that address.
[*478]
COMMENT
71.1. Information to the other party about suspending performance can be given
in an electronic message. The important factor is that the information be
conveyed to the addressee, not in what form it is conveyed.
71.2. For the effectiveness of communications to the other party about
suspending performance see comments in Articles 15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
W. CISG Art. 72
(1) If prior to the date for performance of the contract it is clear that one of
the parties will commit a fundamental breach of contract, the other party may
declare the contract avoided.
(2) If time allows, the party intending to declare the contract avoided must
give reasonable notice to the other party in order to permit him to provide
adequate assurance of his performance.
(3) The requirements of the preceding paragraph do not apply if the other party
has declared that he will not perform his obligations.
OPINION
The term “notice” includes electronic communications, provided that the
addressee expressly or impliedly has consented to receive electronic
communications of that type, in that format, and to that address.
COMMENT
72.1. Information to the other party about an intention to declare a contract
avoided can be given in an electronic message. The important factor is that the
information was conveyed to the addressee, not in what form it was conveyed.
72.2. For the effectiveness of communications to the other party about an
intention to declare a contract avoided see comments in Articles 15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5
[*479]
X. CISG Art. 79
(1) A party is not liable for a failure to perform any of his obligations if he
proves that the failure was due to an impediment beyond his control and that he
could not reasonably be expected to have taken the impediment into account at
the time of the conclusion of the contract or to have avoided or overcome it or
its consequences.
(2) If the party’s failure is due to the failure by a third person whom he has
engaged to perform the whole or a part of the contract, that party is exempt
from liability only if:
(a) he is exempt under the preceding paragraph; and
(b) the person whom he has so engaged would be so exempt if the provisions of
that paragraph were applied to him.
(3) The exemption provided by this article has effect for the period during
which the impediment exists.
(4) The party who fails to perform must give notice to the other party of the
impediment and its effect on his ability to perform. If the notice is not
received by the other party within a reasonable time after the party who fails
to perform knew or ought to have known of the impediment, he is liable for
damages resulting from such non-receipt.
(5) Nothing in this article prevents either party from exercising any right
other than to claim damages under this Convention.
OPINION
The term “notice” includes electronic communications, provided that the
addressee expressly or impliedly has consented to receiving electronic
communications of that type, in that format, and to that address.
COMMENT
79.1. Information to the other party about an impediment can be given in an
electronic message. The important factor is that the information be conveyed to
the addressee, not in what form it is conveyed.
79.2. For the effectiveness of information to the other party about an
impediment see comments in Articles 15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art.5
[*480]
Y. CISG Art. 88(1) and (2)
(1) A party who is bound to preserve the goods in accordance with article 85 or
86 may sell them by any appropriate means if there has been an unreasonable
delay by the other party in taking possession of the goods or in taking them
back or in paying the price or the cost of preservation, provided that
reasonable notice of the intention to sell has been given to the other party.
(2) If the goods are subject to rapid deterioration or their preservation would
involve unreasonable expense, a party who is bound to preserve the goods in
accordance with article 85 or 86 must take reasonable measures to sell them. To
the extent possible he must give notice to the other party of his intention to
sell.
OPINION
The term “notice” includes electronic communications, provided that the
addressee expressly or impliedly has consented that he is willing to receive
electronic communications of that type, in that format, and to address.
COMMENT
88.1. Information to the other party about an intention to sell the goods can be
given in an electronic message. The important factor is that the information be
conveyed to the addressee, not in what form it is conveyed.
88.2. For the effectiveness of communications to the other party about an
intention to sell the goods see comments in Articles 15 and 27.
See also UNCITRAL Model Law on Electronic Commerce Art. 5
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