Professional Documents
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Contratos de Compra y Venta Inter
Contratos de Compra y Venta Inter
Contratos de Compra y Venta Inter
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Sales
Formationof International
Contractsunderthe 1980
ViennaConvention
A diplomaticconferencemetin Vienna in March-April1980 to consider
a draftconventionon thelaw governinginternational sales contracts.In its
Final Act of April 10, 1980 the conferenceadopted withoutdissenta Con-
ventionon Contractsforthe InternationalSale of Goods (CISG).1 As of
September30, 1981 one state,Lesotho, had ratifiedthe conventionand
twentyotherstates,fromall sectorsof theworldcommunity, had indicated
their intentionto do so by formallysigning it.2 Although the CISG will
only enterinto force twelve months afterthe tenth stateratifiesthe conven-
tion(CISG art.99) this initial of
expression supportsuggests thatthe CISG
will come into force in the near future.Whether or not the United States
5On the workof UNCITRAL and the backgroundto the UNCITRAL draftsee Honnold,
The UnitedNationsCommissionon InternationalTrade Law: Missionand Methods,27 Am. J.
Comp. L. 201 (1979); Honnold,The DraftConvention on Contractsfor theInternational Sale of
Goods: An Overview,27 Am. J.Comp. L. 223 (1979). (These articlesare partof a symposium
issue of theAmerican Journal of Comparative Law devotedto theworkof UNCITRAL).
The proceedingsof the 1978meetingof theCommissionare set out in Uncitral, Yearbook:
1978 at 31-45 (1979).
A briefsummaryand analysisof thefinaltextis foundin Note,International Trade: Uniform
Law ofSales, 22 Harv. Int'l L.J.473 (1981). ProfessorJohnHonnold,who was co-chairman
of the U.S. delegationin Vienna as well as Chiefof the U.N. InternationalTrade Law Branch
and Secretaryof UNCITRAL from1969-1974,has prepareda detailed analysisof the CISG
to be publishedin May 1982 by the Dutch publishers,Kluwer.
For analysisof the formationprovisionssee Eörsi,Problemsof Unifying Law on theForma-
tionof Contractsfor theInternational Sale of Goods,27 Am.J.Comp. L. 31 1 (1979); Lansing&
Hauserman,A Comparisonof the UniformCommercialCode to UNCITRAL's Convention on
Contracts for theInternational Sale of Goods,6 N.C. J.Int'l L. & Com. Reg. 63 (1980). Both
articlesmustbe read withcare because the numberingof the articleswas changedin the final
text.
6Unless the
partiesagree to exclude or derogatefromits provisionsthe CISG will apply to
contractsbetweentraderswho have places of businessin different statesifthesestatesare both
partiesto the 1980convention.CISG art. l(l)(a). The CISG is also applicable whenconflict-
of-lawrules("rulesof privateinternational law") lead to thelaw of a statethatis a partyto the
convention.CISG art. l(l)(b). A ratifying statemay declare thatit will not be bound by this
latterprovision.CISG art.95. At thetimeit signedtheconventionthe UnitedStates'govern-
mentannouncedits intentionto make thisdeclaration. For a studyof the convention'sscope
see Réczei,Area of Operationof theInternational Sales Conventions, 29 Am. J. Comp. L. 513
(1981).
Perhapsthe best way to read the CISG textin the lightof thisdrafting
intentand how a reason-
historyis to stressthe importanceof the offerer's
able offereewould understandthe offer.To answerquestion3, therefore,
requiresclose scrutinyof the language of Buyer'scommunicationand the
contextin whichit is made. The questionsuggeststhatBuyer'sletteruses
the word lapse, which suggeststhat Buyer understandsthe common law
distinctionand thereforedid not intend to make an irrevocableoffer.
When interpreting Buyer'sstatement,however,we mustconsidernot only
what Buyer intendedbut also what Seller knew or should have known
about Buyer'sintent(CISG art. 8).18Course of dealing and usage of trade
will,therefore,be relevant(CISG art.9).19 If the offeree-Seller
reasonably
the different view points are summarizedas follows in the summaryof the UNCITRAL
deliberations:
135. In supportof thisproposal [thecompromisetextultimatelyadopted],it was stated
thatthe principaltestto determinethatan offercould not be revokedwas whether
the offerindicatedthatit was irrevocable.Whetherthe offerwas irrevocablecould
be determinedby the factthat it stateda fixedtime for acceptance or otherwise.
However,themerefactof statinga timeforacceptancewould notautomaticallylead
to the resultthatthe offerwas irrevocableif,underthe circumstancesof the case,
sucha resultwas notintended.In particular,itwas said, wherea merchantfromone
commonlaw countrymade an offerto a merchantfromanothercommonlaw coun-
try,thefixingof a timeforacceptancewithoutmorewould notindicatethattheoffer
was irrevocable.
136. However,therewas considerablesupportforthe view thatthe interpretation placed
on thewordsof thetextby itsproposerswas unjustified.It was consideredthatthis
textclearlyadopted the rule that,if the offerstateda fixedtime foracceptance,it
automaticallywas irrevocable.
Uncitral, Yearbook: 1978 at 41 (1979). The reportof the proceedingsconcludes laconi-
cally: "The Commissiondecided to accept the wordingof the compromiseproposal . . . ."
Id. at Darà. 137.
I8CISG art. 8 states:
(1) For thepurposesof thisConventionstatements made by and otherconductof a party
are to be interpreted accordingto his intentwherethe otherpartyknewor could not have
been unaware what thatintentwas.
(2) If theprecedingparagraphis notapplicable,statements made by and otherconductof
a partyare to be interpreted accordingto theunderstanding thata reasonablepersonof the
same kind as the otherpartywould have had in the same circumstances.
(3) In determiningthe intentof a partyor the understandingof a reasonable person
would have had, due considerationis to be givento all relevantcircumstancesof the case
includingthe negotiations,any practiceswhichthe partieshave establishedbetweenthem-
selves,usages and any subsequentconductof the parties.
19CISG art. 9. See note 11 has concluded:
supra. One commonlaw commentator
At the Plenipotentiary Conference,some of thecommonlaw delegationssuggestedthatin a
transactionbetweentradersfromcommonlaw countriesin whichtheofferor fixeda timefor
lapse of the offerand was so understoodby the offereenot to have made an irrevocable
offer, thiswould be a situationwherethestatingin an offerof a fixedtimeforitsacceptance
could not be interpreted by a reasonablecourtto mean thattheofferwas irrevocable.This
resultcould easilybe reachedby a commonlaw court;but it is to be doubtedwhethera civil
law courtwould come to thisconclusion.
Date-Ban, supra note 9, at 58. See also Feltham,supra note 12, at 352 (statementof a fixed
time"would presumablynot be so treated[as irrevocable]when a traderin one commonlaw
countrystateda fixedtimeforacceptanceto a traderin anothercommonlaw country.").But
see Eorsi, supra note 5, at 321 (CISG provisionshould be interpreted to promoteuniform
application;see CISG art.7(1)).
22CISG art. 7(l)("In the interpretation of this Convention, regard is to be had ... to the
need to promote ... the observance of good faith in international trade"). Note that good
faith is relevant to interpretation of the convention; there is no general obligation that the
parties carry out their obligations in good faith. Cf. U.C.C. § 1-203.
23See also Restatement 2d §40, Comment, b. Query regardmg an acceptance which
arrives simultaneously with the rejection. For similar uncertainty under the CISG see note 21
supra.
»See, e.g., MarleneIndus. Corp. v. Camac Textiles,Inc.,45 N.Y.2d 327, 380 N.E.2d 239, 24
UCC Rep. 257 (1980).
26In some
respectsthe traditionalcommonlaw ruleson formationare closerin spiritto the
CISG thantheUniformCommercialCode. Commonlaw rules,such as themirror-image rule
forofferand acceptance,reflecta greateremphasison conceptualismwhich resultsin fewer
enforceablecontracts.
21See Restatement
(Second) of Conflict of Laws § 200 (1971). See also 2 E. Rabel,
The Conflict of Laws: A Comparative Study 520-28 (2d ed. U. Drobnig 1960).
Appendix
Partii
oftheContract
Formation
Article14
(1) A proposalforconcluding a contract addressedto one or morespecific per-
sonsconstitutes an offer ifitis sufficientlydefiniteandindicates theintention ofthe
offeror to be boundin case of acceptance.A proposalis sufficiently definite if it
indicatesthegoodsand expressly or implicitly fixesor makesprovision fordeter-
miningthequantity and theprice.
(2) A proposalotherthanone addressed to oneor morespecific personsis to be
considered merely as an invitation tomakeoffers, unlessthecontrary is clearlyindi-
catedbythepersonmakingtheproposal.
Article15
(1) An offer becomeseffective whenit reachestheofferee.
(2) An offer,even if it is irrevocable,maybe withdrawn ifthewithdrawal reaches
theofferee beforeor at thesametimeas theoffer.
Article16
(1) Untila contract is concludedan offermaybe revokedif the revocation
reachestheofferee beforehe has dispatched an acceptance.
(2) However, an offer cannotbe revoked;
(a) ifitindicates, whether bystatinga fixedtimeforacceptance orotherwise, that
it is irrevocable; or
(b) ifitwasreasonable fortheofferee torelyon theoffer as beingirrevocable and
theofferee has actedin relianceon theoffer.
Article17
An offer, evenif it is irrevocable, is terminated whena rejection reachesthe
offeror.
Article18
(1) A statement madebyor otherconductoftheofferee indicating assentto an
offeris an acceptance.Silenceorinactivity doesnotin itselfamountto acceptance.
(2) An acceptance ofan offer becomeseffective at themoment theindication of
assentreachestheofferor. An acceptance is noteffective iftheindication ofassent
doesnotreachtheofferor within thetimehehasfixedor,ifno timeis fixed, within a
reasonabletime,due accountbeingtakenof thecircumstances of thetransaction,
including therapidity ofthemeansofcommunication employed bytheofferor. An
oral offermust be acceptedimmediately unless the circumstances indicate
otherwise.
(3) However, if,byvirtueoftheoffer oras a resultofpractices whichtheparties
haveestablished between themselves orofusage,theofferee mayindicateassentby
performing an act,suchas one relating to thedispatch ofthegoodsor payment of
theprice,without noticetotheofferor, theacceptance is effectiveat themoment the
actis performed, providedthattheactis performed withintheperiodoftimelaid
downin thepreceding paragraph.
Article19
(1) A replytoan offer whichpurports tobe an acceptance butcontains additions,
limitations or othermodifications is a rejectionof the offerand constitutes a
counter-offer.
(2) However, a replyto an offerwhichpurports to be an acceptance butcontains
additionalor different termswhichdo notmaterially alterthetermsof theoffer
constitutesan acceptance,unlesstheofferor, without unduedelay,objectsorallyto
thediscrepancy or dispatches a noticeto thateffect.If he does notso object,the
termsofthecontract arethetermsoftheoffer withthemodifications contained in
theacceptance.
(3) Additional or differenttermsrelating,amongotherthings, to theprice,pay-
ment,qualityand quantity ofthegoods,placeand timeofdelivery, extentofone
party's to theotheror thesettlement
liability ofdisputes areconsidered to alterthe
termsoftheoffer materially.
Article20
(1) A periodoftimeforacceptance fixedbytheofferor in a telegram or a letter
beginsto runfromthemoment thetelegram is handedin fordispatchor fromthe
dateshownon theletteror,ifno suchdateis shown,fromthedateshownon the
envelope.A periodoftimeforacceptance fixedbytheofferor bytelephone, telexor
othermeansofinstantaneous communication, beginsto runfromthemoment that
theoffer reachestheofferee.
(2) Officialholidaysor nonbusiness daysoccurring duringtheperiodforaccept-
ance are includedin calculating theperiod. However,if a noticeof acceptance
cannotbe deliveredat theaddress, of theofferor on thelast day of theperiod
becausethatday fallson an official holidayor a nonbusiness day at theplace of
businessof theofferor, theperiodis extendeduntilthefirstbusinessday which
follows.
Article21
(1) A lateacceptanceis nevertheless effectiveas an acceptanceifwithout delay
theofferor orallyso informs theofferee or dispatches a noticeto thateffect.
(2) Ifa letterorotherwriting containinga lateacceptance showsthatithas been
sentin suchcircumstances thatifitstransmission had beennormalit wouldhave
reachedtheofferor in due time,thelate acceptanceis effective as an acceptance
unless,without delay,theofferor orallyinforms theofferee thathe considershis
offeras havinglapsedor dispatches a noticeto thateffect.
Article22
maybe withdrawn
An acceptance ifthewithdrawal beforeor
reachestheofferor
wouldhavebecomeeffective.
at thesametimeas theacceptance
Article23
A contract whenan acceptance
is concludedat themoment becomes
ofan offer
ofthisConvention.
in accordancewiththeprovisions
effective
Article24
For thepurposesofthisPartoftheConvention, an offer,
declarationofaccept-
anceor anyotherindication "reaches"theaddresseewhenit is made
of intention
orallyto himor deliveredby anyothermeansto himpersonally, to his place of