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Study on Acceptance Contains Different Terms in CISG Article 19 - Focus on Members’Cases

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2015, (14), pp.97-120
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law

Choi Hye - sun 1

1전남대학교 법학전문대학원 조교수․변호사

Candidate

ABSTRACT

The general principle of CISG Article 19 is mirror-image-rule, but Article 19 para 2 provides the exceptions to that rule. As a result, reply with immaterial modifications of the offer constitutes an acceptance unless the offeror objects orally to the discrepancy or dispatches a notice to that effect. Para 3 sets out the matters that are considered as material modifications. Granting the exceptions is the useful effort to mitigate the demerit of the mirror-image-rule, but there remain some ambiguous problems regarding deciding whether certain modifications are material or not. For clearance, Article 19 para 3 provides criteria to determine materiality but these lists are not considered as exhaustive. And to the contrary, the terms which are not included in para 3 can be interpreted into material changes. Finally, for determining the reply purports to be an acceptance but adds to or different from the terms in the offer is a real acceptance or a rejection of the offer, we should consider the specific situations in the individual cases. This study tries to find some useful criterion and considerations to decide materiality by examining of Member countries' cases. To sum up, adding the payment conditions and forum selection clause to the offer did alter the offer and constitutes a counter-offer. While changing the governing law and the amount of goods are judged from the existing state of things. In prior transactions, if parties consider the governing law as a important term which needed to be agreed, alteration regarding that condition is material. And If a offeree made a modification about amount of goods just for the advantage of offeror, that would not constitutes a material change.

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