CISG United Nations Convention on Contracts for the International Sale of Goods (1980)
Int. Privat- & Wirtschaftsrecht
- The articles on scope of application indicate both what is covered by the Convention and what is not covered. The Convention applies to contracts of sale of goods between parties whose places of business are in different States and either both of those States are Contracting States or the rules of private international law lead to the law of a Contracting State. A few States have availed themselves of the authorization in article 95 to declare that they would apply the Convention only in the former and not in the latter of these two situations. As the Convention becomes more widely adopted, the practical significance of such a declaration will diminish. Finally, the Convention may also apply as the law applicable to the contract if so chosen by the parties. In that case, the operation of the Convention will be subject to any limits on contractual stipulations set by the otherwise applicable law.
- The final clauses make two additional restrictions on the territorial scope of application that will be relevant to a few States. One applies only if a State is a party to another international agreement that contains provisions concerning matters governed by this Convention; the other permits States that have the same or similar domestic law of sales to declare that the Convention does not apply between them.
- Contracts of sale are distinguished from contracts for services in two respects by article 3. A contract for the supply of goods to be manufactured or produced is considered to be a sale unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for their manufacture or production. When the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services, the Convention does not apply.
- The Convention contains a list of types of sales that are excluded from the Convention, either because of the purpose of the sale (goods bought for personal, family or household use), the nature of the sale (sale by auction, on execution or otherwise by law) or the nature of the goods (stocks, shares, investment securities, negotiable instruments, money, ships, vessels, hovercraft, aircraft or electricity). In many States some or all of such sales are governed by special rules reflecting their special nature.
- Several articles make clear that the subject matter of the Convention is restricted to formation of the contract and the rights and duties of the buyer and seller arising from such a contract. In particular, the Convention is not concerned with the validity of the contract, the effect which the contract may have on the property in the goods sold or the liability of the seller for death or personal injury caused by the goods to any person.
UNCITRAL Digest CISG, Art. 21
This Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (CISG) was prepared by the UNCITRAL Secretariat in cooperation with national correspondents and international experts. It may serve as a commentary on the CISG. The following excerpt contains the commentary on Article 21 CISG.
Recommended citation: UNCITRAL, Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (2016), Art. 21, para. #.
Article 21
(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.
(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 his offer as having lapsed or dispatches a notice to that effect.
OVERVIEW
1. Article 21 provides that a late acceptance is nevertheless effective if the conditions set out in paragraphs (1) or (2) are satisfied. Other provisions of Part II of the Convention defined when an acceptance is late. Thus article 18 (2) requires a timely acceptance to reach the offeror within the time period specified in that paragraph and calculated as provided in article 20; article 24 defines when a revocation “reaches” the offeree. Article 18 (3), however, identifies circumstances in which an acceptance is effective when the offeree performs “an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror […]”.
2. Paragraph (1) provides that a late acceptance is effective if the offeror notifies the offeree without delay that the acceptance is effective.1 According to a Supreme Court decision, the contract is then retroactively concluded at the time the late acceptance reached the offeror (not when the offeror’s message reaches the offeree).2 The offeror’s confirming answer two months after the late acceptance is ineffective because it was not sent “without delay”3 while an answer after one week meets the requirements of a timely acceptance.4
3. Paragraph (2) provides that a “letter or other writing containing a late acceptance” is nevertheless effective as an acceptance if the writing shows that it would normally have reached the offeror within the time period for acceptance, unless the offeror notifies the offeree without delay that he considers the offer to have lapsed. There are no reported cases applying paragraph (2).
Notes
1 Court of Arbitration of the International Chamber of Commerce, 1994 (Arbitral award No. 7844), The ICC International Court of Arbitration Bulletin (Nov. 1995) 72-73 (reference to Austrian law and the Convention for proposition that a late acceptance would not be effective unless the offeror notified the offeree without delay that the acceptance is effective). The same result was reached in Landgericht Hamburg, Germany, 21 December 2001, English translation available on the Internet at www.cisg.law.pace.edu (although the contract was considered concluded because it had been performed by the seller’s shipment of the goods and their acceptance by the buyer).
2 Bundesgerichtshof, Germany, 7 January 2014, Internationales Handelsrecht 2014, 56 = CISG-online No. 2477.
3 Oberlandesgericht Frankfurt, 24 March 2009, Internationales Handelsrecht 2010, 250 (252) = CISG-online No. 2165.
4 Oberlandesgericht Dresden, Germany, 30 November 2010, Internationales Handelsrecht 2011, 142 (144) = CISG-online No. 2183.
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