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The International Contract Law in the Context of Some of Its Sources
Author(s): Folke Schmidt

Source: The American Journal of Comparative Law , Winter, 1965, Vol. 14, No. 1
(Winter, 1965), pp. 1-37
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/838526
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FOLKE SCHMIDT
The International Contract Law in the

Context of Some of its Sources
1. Introduction. At the Diplomatic Conference at the Hague, Ap

2-25, 1964, a convention was concluded contemplating that each c
tracting state shall undertake to incorporate into its own legislat
a Uniform Law on the Formation of Contracts for the Internatio
Sale of Goods. As indicated by its name, the history of this conventi
is closely related to the convention on a Uniform Law on the Interna
tional Sale of Goods which was concluded at the same Conference.
In Article 1 the scope of the 1964 International Contract Law is de-
fined. Article 13, subsec. 1, which concerns usage, and Article 13,sub
2, which gives a standard of interpretation for expressions commonl
used in commercial practice, correspond closely to provisions on t
same matters in the International Sale of Goods Law. The remain
articles (Arts. 2-12.1) contain provisions which are more or less specif
to the formation of contracts. It is the purpose of this report to tra
some national prototypes of the most relevant of these provisions.
In 1930, the Rome Institute for the Unification of Private Law
pointed a committee for the purpose of preparing a draft uniform l
of sale.1 The idea of preparing a separate International Contract L
can be traced back to this committee. A separate contract law w
needed not only because of the importance of the subject as such, bu
also because of the peculiar technique applied in the draft unifor
law on sale. In several provisions the legal effect of the sale w
related to the moment or the place at which the contract had be
concluded. However, the committee for the international law on sales
was unable to reach a compromise on the divergent opinions and solv
the problem of defining the moment of conclusion of the sales c
tract. Consequently in 1934, the Rome Institute decided to appoin
special committee for the study of the whole law relating to the con
clusion of international contracts between absent parties. Howeve
before this committee met, the Committee for the Law of Sales h
prepared a draft on the formation of contracts, containing in Articl
1-4 provisions on the offer and in Articles 5-10 provisions on t
FOLKE SCHMIDT is Professor of Private Law, University of Stockholm.-The prese

article was presented as a report to the Scandinavian-American Legal Seminar, Sto
holm, 1965.
1On the history of the Uniform Contract Law, cf. Ernst von Caemmerer "Die
Haager Konferenz iiber die internationale Vereinheitlichung des Kaufrechtes vom 2.
bis 25. April 1964," in Rabels Zeitschrift 1965, pp. 101 ff.

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2 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 14
acceptance. This draft (the 1935 Draft)2 was submitted to the Speci
Committee at its first meeting in May, 1935. The Committee, wit
Mr. d'Amelio, President of the Rome Institute as chairman, the Dutch
professor E. M. Meijers as reporter, and Mr. Bagge of Sweden amon
its members, drew up in 1936 a Draft of a Uniform Law on Intern
tional Contracts made by Correspondence (the 1936 Draft).'
The 1936 Draft contained, besides a number of provisions govern
ing the effect of the offer and the acceptance in Article 8, rules o
the place and the moment of the conclusion of the contract. Dependen
upon the situation, the contract was considered concluded at the
moment when the acceptance reached or was brought to the know
edge of the offeror, the moment when the acceptance was received by
the offeror, or the moment when the acceptance was despatched
However, the Rome Institute found it unlikely that an internation
convention could be reached on the basis of the Draft, and did no
take any positive steps toward that end.
The matter was put on the agenda again during the Internationa
Conference for the Examination of the Draft of a Law on Sales at the
Hague in 1951. Once more the problem of determining the momen
of conclusion of the contract was the foremost issue. The reason was
the same as before, namely, that a great number of the provisions of
the draft on the law of sales had reference to the moment when the
contract was concluded. At that time the Conference expressed it
desire that the rules concerning the formation of contracts be studied
separately. In 1956, the Rome Institute appointed a new committee
for the purpose of preparing a draft uniform law on the formatio
and the validity of contracts. The committee held two meetings, th
first in 1957 and the second in 1958, both under the chairmanship of
Mr. Bagge. A Draft Uniform Law on the Formation of Contracts fo
the International Sale of Goods was published in 1959. It will b
referred to here as the 1958 Draft.4
Like the 1936 Draft, the 1958 Draft contained a provision definin
the moment a contract was concluded (Art. 12). Further, there wer
a number of provisions concerning the effect of the offer and th
acceptance. Yet, despite this outward similarity, the differences were
considerable. While the 1936 Draft had as its object contracts made by
correspondence, the 1958 Draft covered oral contracts as well. On th
other hand, the 1958 Draft had narrower scope. It referred not t
2 The 1935 Draft is published in Rabel, Das Recht des Warenkaufs, 1936, vol. 1, p.
116.
8 The Draft of a Uniform Law on International Contracts made by Correspondence
was published together with an Apercu of the underlying principles by E. M. Meijers
in Institut International pour l'Unification du Droit Prive, Aper:u g6neral des travaux
pour l'unification du droit prive (Projets et Conventions).
4U.D.P. 1958-Projet V.

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1965] SCHMIDT: THE INTERNATIONAL CONTRACT LAW 3
contracts in general, but particularly to contracts for internat

The rules also differed materially. Thus, the rule on the ti
conclusion of the contract was simplified from the many alte
of the 1936 Draft.
The 1958 Draft was submitted to the interested governm
the International Chamber of Commerce. A comment on t
servations was produced by Professor Tunc, Paris. This ma
placed in the hands of the Diplomatic Conference at t
1964. During the Conference, the 1958 Draft was carefully
every detail, and the final text of the Convention on an Inte
Contract Law departs radically from the draft. On on
particular the difference is glaring. There are no provisio
International Contract Law on the matter which earlier was c
of paramount importance, namely, the moment and place
a contract is concluded.
The International Contract Law was intended as an aide
for the weightier International Sale of Goods Law. Thus,
to one specific type of contract only, the international sale. Ev
this narrower field, it is far from definitive. It is subject to
limitations as the International Sale of Goods Law. Excep
made for, i.a., the sale of stocks, shares, investment securities,
instruments or money, and of any ship subject to registra
ever, the reader gets the impression that these limitation
posed in order to narrow the scope of the International Cont
to fields sufficiently specific to permit unanimity of agreem
narrowness of scope in no way effected a corresponding conc
or specificity of its provision. The International Contract
vides the basic elements of offer and acceptance with ru
seem to bear not only on sales in general, but on almost
of contract.
The idea of laying down general rules applicable to all k

contract is a part of the Continental European tradit
reached its strongest manifestation in the German Civil
1896, in which rules of general application were included
General Rules (Allgemeiner Teil). The principal rules on c
are found in ?? 145-157.
The rules on the formation of contracts were given sti
prominence in the Swiss Code des Obligations which was e
1911 and forms Book V of the Swiss Civil Code. The very firs
(Arts. 1-17) deal with the subject of the formation of con
The same set of rules hold a significant place in the Scan
Uniform Acts on Contracts and other Legal Acts in the Field
of Property, enacted in Sweden 1915, Denmark 1917, Nor

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Finland 1929.6 Chapter 1 (Arts. 1-9) is titled "On the Formation of

Contracts," and its legislative history parallels in certain respects the
history of the International Contract Law. In 1894, the Swedish Stand-
ing Law Revision Committee published a report with a Draft Law
of Sales, the introductory part of which concerned the formation of
contracts. Certainly the final act was given a much broader scope than
the provisions in the 1894 Draft. However, students of the first
part of the Scandinavian Contracts Acts are in agreement that its
drafters had in mind the contract of sale, and in particular the contract
of sale made by correspondence. It might be recalled that the object of
the 1936 Draft was similarly contracts made by correspondence.
Broad comparative studies were part of the preparations of the In-
ternational Sale of Goods Law, and of particular interest is the work of
Rabel and his team, Das Recht des Warenkaufs (vol. 1 published in
1936, vol. 2 in 1957). The 1934 committee on the formation of contracts
also made investigations of its own. A report was prepared which refers
to the laws of at least 30 countries.
Further, it might be mentioned that 16 Governments and the Inter-
national Chamber of Commerce submitted observations on the 1958
Draft and that 28 states took part in the Hague Conference, 1964,
while 4 other countries and a number of international organizations
were represented by observers.6
c A translation of the Swedish Contracts Act is found in The Uniform Laws of the
Nordic Countries. Unidroit, Rome, 1962.
6 The following documents were available to the author during his work on this
paper:
A series of documents distributed by the International Institute for the Unifica-
tion of Private Law (Unidroit) to the members of the 1934 Comittee on the law
relating to the conclusion of international contracts between absent parties, labelled
U.D.P. = 1935 = etudes XVI = Doc. 1, 2, 3, 5, 5bis, 6-14 (mimeographed). The
1935 Draft is attached as annex to Doc. 5bis. It is also published in Rabel, Das
Recht des Warenkaufs, vol. 1, p. 116.
Unidroit, A General Survey of Work for the Unification of Private Law (Drafts
and Conventions), Rome 1948, one volume. In this volume the reader will find:
Eduard Maurits Meijers, "Underlying Principles of the Draft concerning the
Conclusion of Contracts by Correspondence";
'"reliminary Draft of a Uniform Law on International Contracts made by
Correspondence" (the 1936 Draft).
Unidroit, Projet de loi uniforme sur la formation des contrats de vente inter-
nationale des objets mobiliers corporels et Rapport, Rome 1959, Doc./F/Prep./1 (the
1958 Draft).
Observations des gouvernements et de la CCI sur le projet de loi uniforme sur
la formation des contrats de vente internationale des objets mobiliers corporels, The
Hague 1963, Doc./F/Prep./2.
Unidroit, Note sur les observations presentees par divers gouvernements et par
la CCI preparee, en collaboration avec M. le Professeur Andre Tunc. Annexe:
Observations de M. Algot Bagge, The Hague 1963, Doc./F/Prep./3.
Report of the Donaldson Committee (Observations of the Government of the
United Kingdom) (mimeographed).
Hjalmar Karlgren, Erinringar i anledning av 'Trojet de loi uniforme sur la

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Most likely some national laws have influenced the Int

Contract Law specifically. Certainly, the German Civil Code h
as a model for the various drafts. It also seems safe to pre
the Scandinavian Contracts Acts served as a model. A Sw
Bagge, was the president of the committee which prepare
Draft and a member of the committee behind the 1936 Draft
The Scandinavian influence was emphasized in a Repo
cember, 1964, prepared by Professor Jan Hellner at the requ
Swedish Minister of Justice to provide information to Sw
cies and private organizations. "Even the first draft (1958 Dr
rather closely with the Scandinavian Contracts Acts, and late
have partly gone in the direction of bringing the Interna
tract Law even closer to the Scandinavian law of contracts
relevant that at the very beginning of the Hague Confe
Swedish delegation was able to present a draft with a com
The Scandinavian impact on the drafting is described by
Hellner with the following words: "One cannot hope-in
law will not come into force-that a later uniform law will ag
the Scandinavian law of contracts as closely as this one."
A third source, and possibly the most important so far
tions are concerned, is to be found in the United States Unif
mercial Code. It was published in 1952, i.e., in the time b
earlier drafts and the 1958 draft. The Code was revised in
since 1958 has received growing acceptance from state legisla
the end of 1963-i.e., close to the time of the opening of
formation des contrats de vente internationale" etc., Nov. 1963 (mime

Swedish).
Swedish delegation at the Diplomatic Conference 1964, Projet de loi uniforme
sur la formation des contrats de vente internationale des objets mobiliers corporels,
March 3, 1964 (mimeographed).
Protokoll av den 10 mars 1964 med den svenska delegationen (Minutes of March
10, 1964, from a session with the Swedish delegation to the Diplomatic Conference)
(mimeographed in Swedish).
The Diplomatic Conference 1964, Compte rendu provisoire de la commission loi
uniforme formation, Conf./CR/Com.F/1, 3-13 (French text), F/l-11 (English
text) (mimeographed).
Jan Hellner, PM. Den uniforma lagen om slutande av avtal om internationella
kop av losa saker, Dec. 18, 1964 (mimeographed in Swedish).
Unidroit, Draft of an international law of the sale of goods, Rome 1935, L.O.N.
1935-U.P.L.-Draft 1.
Unidroit, Projet d'une loi uniforme sur la vente internationale des objets mobiliers
corporels et Rapport, deuxieme redaction, Rome, Dec. 1938, S.d.N. 1938-U.D.P.-
Projet I (1).
Projet d'une loi uniforme sur la vente internationale des objets mobiliers corporels.
Nouveau texte elabore par la Commission et Rapport de la Commission, The Hague
1956, Doc./V/Prep./l.
Projet d'une loi uniforme sur la vente internationale des objets mobiliers corporels.
Texte des articles modifies selon les propositions de la Commission Speciale en
1962/1963, The Hague 1963, Doc./V/Prep./4.

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Conference-the Uniform Commercial Code had been adopted by 31

states in the U.S. Its influence on the 1958 Draft is hard to judge, but
it can be stated with certainty that several of the amendments made
at the Diplomatic Conference of 1964 had provisions of the Uniform
Commercial Code as their model.'
2. The concept of the offer. Article 4, subsec. 1, defines the offer as
follows:
"The communication which one person addresses to one or more

specific persons with the object of concluding a contract of sale shall
not constitute an offer unless it is sufficiently definite to permit the
conclusion of the contract by acceptance and indicates the intention
of the offeror to be bound."
Two of the requisites of an offer mentioned in this definition are of
particular interest, namely, (1) that the offer is a communication
addressed to one or more specific persons, and (2) that it shall be
sufficiently definite to permit the conclusion of the contract by ac-
ceptance.
The first requisite is concerned with whether one might consider a
promise addressed to the public (offre publique) as an offer. To the
reader its meaning seems unmistakably clear. The purpose of Article
4, subsec. 1, is to define the offer. Therefore, the conclusion e contrario
from the text is justified that a communication which is not ad-
dressed "to one or more specific persons" does not constitute an offer.
In his Report of December, 1964, Professor Hellner takes this view
and declares that an advertisement or the window-display of goods is
not considered an offer as such acts are addressed to the public.
However, Professor von Caemmerer, who was a German delegate
to the Diplomatic Conference and himself took part in the delibera-
tions of the Committee on the Uniform Contract Law, presents
another opinion in a paper published in Rabels Zeitschrift, 1965. He
maintains that this problem of the "offer to the public" (die Oferte an
das Publikum) is not governed by the Uniform Contract Law, and,
in effect, leaves the decision in the hands of the judge.8 What is the
background of this conflict of opinion ?
According to Scandinavian law, it is a settled rule that an address
to nonspecified persons will have no effect as an offer. In the travaux
prtparatoires of the Scandinavian Contracts Acts it was expressly
mentioned that advertisements and announcements to the public are
without legal effect. As a rule, they are not even considered to be
7 There are other possible sources, too. The most obvious suggestion is the Swiss "Code
des Obligations" of 1911 and, for the last draft, the Italian Code of 1942. The author
has not been able to follow these influences.
8 von Caemlmerer, op. cit., pp. 118 f.

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invitations such as create a contract when the invitor fa

the offeror that he does not want to be bound.9
This rule is not peculiar to Scandinavian law. The Swi
Obligations provides expressly that the distribution of tari
lists, or similar items shall not constitute an offer (Art
2). The German General Commercial Code of 1861 h
provision (Art. 337). However, it was not taken over by
Code, 1896, or the Commercial Code, 1897. Modern Germ
a more flexible rule. Commercial practice will decide wheth
ise, addressed to nonspecified persons, will constitute an off
The idea that an offer has to be addressed to one or m
persons is certainly opposed to English law. As indicated
Carlill v. Carbolic Smoke Ball Co., (Court of Appeal [
256), an offer can be made to more than one person or
all the world.""' 12
The matter of how to regulate offers to nonspecified p
discussed during the preparations of the drafts of 1935 and
1935 Draft contained an express provision. Accordin
solicitations addressed to nonspecified persons (announcem
papers, advertisements, and posters) should not be consider
The committee which prepared the 1936 Draft reconsidered
tion and determined that no rule at all should be provide
the 1936 nor the 1958 Draft touched upon the matter.
The question of the effect of offers to nonspecified p
made a topic of discussion by the Donaldson Committe
sentation of the British view to the members of the Diplom
ference, 1964. The Donaldson Committee considered the
ambiguous, but assumed that in any case it did not inten
the validity of all offers made to more than one person, or
all the world. An amendment was suggested. The Internatio
ber of Commerce took the opposite view and suggested
provision to the effect that the public offer would not con
than an invitation to treat. In his comments Professor T
with the International Chamber of Commerce but claim
matter was taken care of by the Draft since in Article 3 th
Swedish Motives, pp. 60 if., Danish Motives, pp. 32 ff., Norwegian Motiv
0 Enneccerus and Nipperdey, Allgemeiner Teil des Biirgerlichen Re
1960 (cit. Nipperdey, ? 161.2(a)).
11 Cf. the Report of the United Kingdom Delegation to the Diplomat
... at The Hague, 1964, reprinted in ICLQ Suppl. Pub. No. 9 (1964).
12 French law, too, recognizes offers made to the public (offres faites au
as window-display of goods or the advertisement of a theatre performanc
oblige its author in relation to anyone who appears in order to accept th
and Raynaud, Droit civil, vol. 2, 1962, No. 100.
13 Doc. 5 bis.

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defined as a communication by one person to another ("a une

autre") 14
During the Diplomatic Conference the question of the public offer
was discussed on several occasions. At the second session of the Con-
tract Committee, a Swedish proposal for the amendment that "a
public offer merely constitutes an invitation to an offer" was put to a
vote, but not carried. At the same meeting the Committee decided that
the public offer should not be governed by the International Contract
Law. At the opening of the next session the Committee came to the
same conclusion for a second time. On the proposal of a working
committee under chairmanship of Professor von Caemmerer, the Ger-
man delegate, the present text was adopted at the 8th and 11th ses-
sions. It was thus provided that the "offer" was an address to "one
or more specific persons,"'5 an expression which replaces the more
vague language of the 1958 Draft.
The present author does not wish here to open a debate on the
methods of interpretation of international conventions. In favor of
Professor Hellner's opinion one may refer to the language of Article
4 of the International Contract Law. Professor von Caemmerer's view,
on the other hand, is supported by the fact that the Committee at the
Diplomatic Conference twice decided that the effect of a public offer
would not be governed by the Uniform Contract Law, having in
fact turned down a more specific Swedish proposal on the subject.
However, even an investigation of the intent of the individuals involved
in the decision does not yield an indisputable conclusion.1
In the opinion of the present author it seems realistic to interpret
the International Contract Law as it may be actually applied in dif-
ferent quarters. It may be natural for a Scandinavian court to follow
Professor Hellner's recommendation which is in harmony with the
law of the Scandinavian countries.'66 For the same reason a German
court likely will follow the opinion of von Caemmerer. Under these
circumstances it seems proper to conclude that no unanimity has yet
been achieved. The final Uniform Contract Law does not consider the
effect of the "public offer" as indeed was decided by the Committee at
14 Article 3 of the 1958 Draft runs as follows: "La communication qu'une personne
adresse a une autre en vue de la conclusion d'un contrat ne constitue une offre au sens
de la presente loi que si les elements du contrat sont suffisamment precises pour en
permettre la conclusion par l'acceptation et si la personne qui fait la communication doit
etre consideree comme ayant la volonte de s'engager."
15 In the original text "one or more determined persons."
16 Professor von Caemmerer himself admits that the decisions made were neither
clear nor indisputable as to their scope. "Die gefassten Beschliisse sind nicht sehr klar
und ihre Tragweite nicht ganz zweifelsfrei." Op. cit., p. 119, footnote 73.
16a However, in a memorandum of Sept. 9, 1965, drafted, inter alia, by the Stock-
holm Chamber of Commerce, the Swedish banks, the Swedish insurance companies,
and a number of representatives of Swedish commerce, it is submitted that public offers
are not governed by the International Contract Law.

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the Diplomatic Conference, but leaves the matter to t

of each country.
With regard to the second requisite, there is much l
principle that the offer shall be sufficiently definite
conclusion of the contract by acceptance is familiar to
of Scandinavian contract law. In the Swedish legislati
stated that it is "a necessary part of the concept of the
its acceptance a contract will be created without any fur
tion of intention on the part of the offeror."" It should
the issue has been somewhat obscured by the fact that int
focused on the more intricate question whether an offer s
additional requisite of being irrevocable.l1 However, n
this debate, an essential element of any valid offer se
it shall have the quality of permitting a contract to come
without further activity on the part of its author.
There is certainly nothing uniquely Scandinavian in
tion. Statements to the effect that the offer shall be def
to permit an assent by acceptance are part of every c
textbook on the German Civil Code.19 Indeed, it is an An
rule as well as one of Continental Europe. Thus, Chesh
distinction between the offer and the invitation to treat
must have completed his share in the formation of the co
to the offeree the option of acceptance or refusal."20 Ind
ond requisite of Article 4, subsec. 1, in the International
expresses a principle intimately connected with the i
ment is a product of two promises corresponding to o
as one may say as well, based upon mutual assent or m
minds.
3. The effect of the ofer. The International Contra

down in Article 5 provisions on the binding effect of th
are seemingly contradictory in character. On the one
states that the offer can be revoked even after its com
the offeree. On the other hand, revocation is not pe
number of situations. Thus, in effect a number of br
are attached to the principal rule of revocation. The m
are found in Article 5, subsec. 2, which reads as follows:
"After an offer has been communicated to the of
be revoked unless the revocation is not made in goo
17 Swedish Motives, p. 59.
18 See Karlgren, Studier i allman avtalsratt, Lund 1935, pp. 150 ff., f
151 f. in particular, and Vahl6n in Teori och praxis, Stockholm 1964,
1g See, e.g., Planck, Biirgerliches Gesetzbuch, 3rd ed. 1903, at Art
op.cit.,? 161.1.
20 Cheshire & Fifoot, The Law of Contract, 6th ed. 1964, p. 26.

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conformity with fair dealing or unless the offer states a fixed

time for acceptance or otherwise indicates that it is firm or ir-
revocable."
There are many divergent lines which have pulled at this com-
promise formula. A brief resume of the national variations seems
justified here, although these are facts often described in legal com-
parative writing. According to the Roman law tradition the consent
of the parties was the only legal act which gave rise to contractual
obligations. The offer was therefore without legal effect. As opposed
to the German common law (das gemeine Recht), the General Code
of the Prussian States of 1794 and the Austrian General Civil Code of
1811 contained provisions that made the offer binding. The German
General Code of Commerce of 1861 is often referred to in this context
as the model of modern provisions on the effect of the offer. An offer
to an absent person was binding for a period within which an answer
properly despatched would be expected to arrive (Art. 319). The
principle that the offeror is bound by his offer was adopted in a more
general form by the German Civil Code of 1896. The same rule pre-
vails in Switzerland, in the Scandinavian countries, and in a great
number of other states.2'
Compared to Scandinavian law, German and Swiss law represent
different stages in an emancipation from the Roman law influence.
According to German and Swiss law the contract is still considered as
the basic juristic act which creates obligations, while according to
Scandinavian law it is the offer that is the creative act. The German
Civil Code and the Swiss Code on Obligations both follow the
Pandect Law pattern that obligations arise from contract, unjust
enrichment, or delict. With this tripartite motif in mind the German
legislators put the provisions on the binding effect of the offer under
the title "Contract" in the first book, "General Principles." In the
Swiss Code on Obligations the dependence upon the Roman law
heritage is still more apparent, particularly with respect to the frame-
work of its legislation. The first part of the Code where the provisions
on the offer are to be found bears the title "Creation of Obligations"
and the subtitle "First section: Creation by Contracts." Thus, the prin-
ciple of the binding effect of the offer appears as a specific concession
to the interests of the law merchant.
In Scandinavian law, the contract is split into its two elements,
the offer and the acceptance. In opposition to the view which pre-
vailed in Germany, the Scandinavian drafter described the situation
in the following way: "Although in ordinary and in legal language
people mention the contract as the transaction by which mutual ob-
21 See Rabel, op. cit., vol. 1, p. 78.

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ligations arise, indeed the party will be bound by the declaration of

intention made by himself."2 "It is more natural to consider the
offer as a unilateral act imposing obligations on its author, under the
condition that the answer with an acceptance arrives within a fixed
or a reasonable time.... Under this conception the contract is not
one legal transaction, but two."23
With respect to approach, the Anglo-American legal systems have
a similarity to Scandinavian law. Attention is focused upon the uni-
lateral act, the promise, and the contract is considered not as a single
juristic act but rather as a set of two or more promises. But, while
the offer is generally held as not binding, this is so for reasons quite
different from those of the Roman law tradition. In his The Law of
Contract, Professor Cheshire describes the English view: ". . . when,
in the middle of the sixteenth century, the lawyers evolved, through
the action of Assumpsit, a general contractual remedy, they decided
. .. that it would not avail to redress the breach of any and every
promise, whatever its nature .... The plaintiff must show that the
defendant's promise, upon which he was suing, was part of a bargain
to which he himself had contributed."24 This element of bargaining is
the essence of the much debated doctrine of consideration.
In Anglo-American law there is a distinction between bilateral and
unilateral contracts. The concept of the bilateral contract seems to be
practically identical with that of the Roman law consensual contract
(contract by consent). The promise of the plaintiff to perform his
part constitutes consideration.25 With the acceptance, therefore, the
offer becomes binding. The most common form of the unilateral con-
tract is that in which the offeror gives a promise and asks some per-
formance by the offeree in return.26 A unilateral contract exists, for
instance, when the offer takes the form of a promise to pay money in
return for an act.27 According to the strict common-law doctrine, in
this situation the promise to pay is not enforceable unless the offeree
has performed the act, and partial performance is not sufficient.28 In
teaching, this doctrine has often been demonstrated by the flagpole
case. The student is put in the imaginary position of climbing the
flagpole of the campus on the promise of a sum of money when he
reaches the top. When he is almost there, the professor revokes his
offer.

24 Cheshire, p. 58.
25 Cf. Cheshire, pp. 59 f. 'The typical modern contract is the bargain struck by the
exchange of promises."
26 Corbin, On Contracts. One Volume Edition, 1952, ? 70.
27 Cheshire, op. cit., p. 39.
28 UPLR 1957, p. 840.

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The two earlier Drafts tried to make a compromise the basis of

solution. In the 1935 Draft a distinction was made between an offer
containing a fixed period of acceptance and an offer without such
period. The former was binding until its expiration, while the latter
could always be revoked provided that the notice of revocation ar-
rived at the offeree's address before the despatch of his acceptance.29
The 1936 Draft made the same distinction and also adhered to the
principle that the offer could be revoked when no time was pre-
scribed for acceptance.30
In his report, "The Underlying Principles of the 1936 Draft," E. M.
Meijers gives a short exposition of the laws of different countries. He
considered that the Draft expressed a view which was common to
the old Roman law tradition and the Anglo-American legal systems.
The Draft "did not intend to depart too much from the system of
law of the countries where the principle of the revocability of the offer
obtains (prevails)." However, this statement on the similarity between
the two families of legal systems might be considered correct only if
you take a very superficial view. As pointed out before,8' the difference
with regard to the approach is fundamental although in some situa-
tions the actual outcome will coincide.
The 1958 Draft chose another line and presented a solution closely
corresponding to German and Scandinavian law. "An offer which
has arrived may not be revoked unless the offeror has reserved to
himself the right to revocation in the offer." (Art. 4, subsec. 2.)
At the Diplomatic Conference the differences between the German
and Scandinavian view, on the one hand, and the English view, on
the other, came to the forefront. Furthermore, delegates from coun-
tries adhering to the Roman law idea of the consent in the contract
as the creative element were against the solution suggested by the
1958 Draft. Amendments to the effect that the offer should be made
revocable were proposed by Great Britain, Holland, and Belgium. The
French delegation expressed the same opinion.32
At the reading of Article 4 of the Draft in the Committee on the
International Contract Law, the British delegate, Mr. Reid, expressed
the view that "they should stick to the practical aspect of the problem
and that, in fact, the case of a businessman who wanted never to
revoke his offer would not arise."33 The Hungarian delegate, Mr.
Eorsi, intervened in favor of the Draft. "If someone receives an offer,
29 Articles 2 and 3.
30 Article 3.
31 Cf. supra, pp. 10 f.
32 See von Caemmerer, op. cit., p. 120.
83 Doc. Conf./CR/Com. F.4.

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he needs a certain length of time to reflect. But if the risk of

tion exists, he will be obliged to accept in haste."3'
The American delegate, Professor Mentschikoff, suggeste
promise which was presented as a written text at a later m
Her proposal closely resembled the 1936 Draft. Offers conta
express time for acceptance shall be binding, but all other o
to be revocable.35 The final text was prepared by a subcom
which consisted of delegates from the United States, the Nethe
West Germany, and the Swedish representative of the Inte
Chamber of Commerce, Mr. Lagergren.36
What does the compromise formula of Article 5 imply? W
cessions have been made in the interest of international unif
In Article 5 the Anglo-American rule that the offer can be rev
laid down as the main principle. What are the exceptions t
rule in favor of the view of the opposition ?
As indicated by Professor Hellner in his Report to the S
Minister of Justice, 1964, the English rule of bilateral contr
an offer may be revoked until accepted is mandatory in nature
a declaration of the offeror that he considers himself bou
certain period or for a reasonable period has no effect. The Am
rule of the Uniform Commercial Code, 2-205, on firm off
stitutes a modification. A firm offer does not bind unless laid
"a signed writing." It seems justifiable to look upon this r
modern counterpart to the rules governing instruments un
which, properly drawn, were binding instruments as such, eve
identifiable consideration was lacking.
Thus, there is a relevant distinction between Article 5 of the
national Contract Law and ? 2-205 of the Uniform Commer
In the International Contract Law no form is required to
offer firm. Nor is an express provision necessary. The offe
sidered irrevocable even when its irrevocability is indicated
wise," i.a., in the light of particular circumstances.37 Accor
Article 5, subsec. 3, this effect may be indicated by implicatio
the circumstances, the preliminary negotiations, any practic
the parties have established between themselves or usage."
S4 Doc. Conf./CR/Com. F.4.
85 The original compromise formula was as follows:
"An offer which contains an express time within which it may be ac
which otherwise indicates that it is firm for a fixed period cannot be revok
the time fixed unless the revocation arrives at the address of the person to
offer has been sent prior to or at the same time as the offer. All other offers
to acceptance for a reasonable time but may be revoked by arrival of a rev
the address of the offeree prior to his dispatch of an acceptance or his perf
an act constituting an acceptance under article 5." (Conf./CR/Com.F/
36 See von Caemmerer, op. cit., pp. 120 f.
B7 See the text, quoted supra p. 9, ". . . otherwise indicates that it is firm. .

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The compromise formula is obscure with respect to the effect of

offers that do not have the quality of being firm. Such offers are as
a matter of principle revocable. But there is a reservation laid down
in the words of Article 5, subsec. 2; "unless the reservation is not made
in good faith or in conformity with fair dealing." It is hard to judge
the meaning of this good-faith clause. It was not a part of Professor
Mentschikoff's original proposal, nor of the 1936 Draft which might
have served as a model for her proposal.
An incident from the discussions in the Committee reveals the deep
gap between the views of the various members. After the reading of
the text drawn up by the subcommittee, Mr. E6rsi, the Hungarian
delegate, suggested an amendment:
"An offer can only be revoked where, due to the circumstances
arising after the despatch of this offer, the contract which is con-
cluded would have been impaired if the same circumstances had
arisen after the conclusion of the contract."
The American delegation intervened to state that this would not be

a compromise. Mr. Lagergren, the representative of the International
Chamber of Commerce, pointed out that in such a case the offeror
could always in good faith revoke his offer.38
It is easy to understand the American protest as Mr. E6rsi's proposal
made the irrevocability of the offer the principal rule. On the other
hand, the text of the proposal and the comment of Mr. Lagergren
give a hint that the drafters might have had in mind situations covered
by the English doctrine of frustration. An offeror will always act in
good faith by revoking an offer to sell when the goods were physically
destroyed after the time when the offer was made or in other similar
situations.9
However, according to the judgment of the present author, this
track leads in the wrong direction. The International Contract Law
provides for revocability as the principal rule. An exception is made
when the offer is revoked and "the revocation is not made in good
faith." The good-faith clause therefore prescribes a test of bad faith.
Revocation is not permissible when made in bad faith.'4 The problem
of describing situations where the offeror acts in bad faith if he revokes
should not be mixed up with the question whether there are situations
when revocation of an offer clearly is permissible.
It would seem more likely that some of the provisions of the German
Civil Code, which entitle the court to use its discretion, have served as
8 Conf./CR/Com.F/11.
39 See, for the doctrine of frustration, Cheshire, op. cit., pp. 478 f.
40 The French delegation suggested the replacement of the words "unless the revoca-
tion is not made in good faith" by "unless the revocation is made in bad faith" ("a
moins que la revocation ne soit faite de mauvaise foi"). See Conf./CR/Com.F/ll.

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models. ? 242 in the introductory part of the "Law of Obligations"

is particularly important. The debtor is bound to effect the performance
of his obligation "according to the requirements of good faith,
ordinary usage being taken into consideration." ? 826 on liability for
damages caused by intentional wrong contra bonos mores might also
be mentioned. A further parallel is offered by the French doctrine
of l'abus de droit which is used by some legal writers to support
liability when a person exercises a right without any legitimate pur
pose.41
Provisions of this kind which in broad language leave the decision
to the courts involve an element of uncertainty. As a matter of course
the actual law of a country will depend upon the practice of its courts.
Generally speaking, English and American courts take a more nar-
row approach to broad exceptions than the German courts. The same
is true with respect to Swedish courts. It is, in fact, very possible that
we will eventually note that the good-faith clause served to open a
rift in the web of international uniformity.
4. Different means of acceptance. Article 6 contains provisions con-
cerning what constitutes an acceptance:
Art. 6. "1. Acceptance of an offer consists of a declaration
communicated by any means whatsoever to the offeror.
"2. Acceptance may also consist of the despatch of the goods or
of the price or of any other act which may be considered to be
equivalent to the declaration referred to in paragraph 1 of this
Article either by virtue of the offer or as a result of practices
which the parties have established between themselves or usage."
To the American lawyer subsec. 1 and subsec. 2 both seem familiar,
subsec. 1 having its counterpart in the Uniform Commercial Code, 2-
206-1(a), and subsec. 2 in 2-206-1(b).42 To the German and Scan-
dinavian lawyer, subsec. 1 would seem equally familiar as expressing
a principle of general application to the law of contracts. Even subsec.
2 has a counterpart in Continental law. The German Civil Code, ? 151,
deals with the same matter as subsec. 2, but the approach is different.
As mentioned before, Anglo-American law recognizes that basically
41 See Marty and Raynaud, op. cit., No. 103.
42 Uniform Commercial Code 2-206-1:
"Unless otherwise unambiguously indicated by the language or circumstances
(a) an offer to make a contract shall be construed as inviting acceptance in any
manner and by any medium reasonable in the circumstances;
(b) an order or other offer to buy goods for prompt or current shipment shall
be construed as inviting acceptance either by a prompt promise to ship or by the
prompt or current shipment of conforming or non-conforming goods, but such a
shipment of non-conforming goods does not constitute an acceptance if the seller
seasonably notifies the buyer that the shipment is offered only as an accommoda-
tion to the buyer."

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there are two kinds of contracts, bilateral and unilateral. The great
majority of all contracts are bilateral, the unilateral contract serving
only in particular circumstances. In bilateral contracts, a promise is
given as consideration for a promise. In the case of a unilateral con-
tract, the consideration is something other than a promise, ordinarily
the performance of an act. In this case there exists only one enforce-
able right, namely the promise of the offeror. The enforceability of
the promise is conditioned by the fact that the act has been executed
in exchange for it.43
Two different modes of acceptance correspond to this distinction
between bilateral contracts and unilateral contracts. Specifically, these
are acceptance by the declaration of a promise and acceptance by the
performance of an act to which the offer was an invitation. To an
American lawyer it would seem a matter of course that Art. 6,
subsec. 1, deals with bilateral contracts. According to the American
view, an offer which has been communicated conveys a power of
acceptance. The offeror decides the mode of acceptance. He may pre-
scribe a specific mode; if so, acceptance with this mode is required
even if the mode is unusual. However, the offeror is also free to
authorize various optional modes of acceptance. Read in the light of
the Uniform Commercial Code ?2-206-1(a), the International Con-
tract Law, Article 6, subsec. 1, can be described as a rule of interpreta-
tion. A communication of an acceptance by declaration complies with
the offer, whatever the means of communication (parole, writing,
telex). As stated in the Uniform Code Comments, "any reasonable
manner of acceptance is intended to be regarded as available unless
the offeror has made quite clear that it will not be acceptable.""
In the eyes of the German or Scandinavian lawyer, the American
idea that the offeror may prescribe some specific mode for the ac-
ceptance seems rather unrealistic. Except for contracts which require
particular formalities, the actual communication of the intention of
the offeree to accept the offer is the only relevant matter. Therefore,
it is taken for granted that all possible means of communication are
available. The provision in Article 6, subsec. 1, that communication
can be made "by any means whatsoever" expresses a rule which was
self-evident to the Germans and Scandinavians.
During the Diplomatic Conference attention was focused upon the
matter which we have now discussed. The text of the 1958 Draft was
revised. An enumeration of the different modes of communication,
such as parole, by telephone, etc., was deleted and replaced by the
48 See Corbin, On Contracts. One Volume Edition, 1952, ?? 70, 77, 82, and Williston,
On Contracts, vol. 1, 1936, ? 13.
4 Comments given by the National Conference of Commissioners on Uniform State
Laws and the American Law Institute.

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present text. It should therefore be indisputable that Article 6, subsec.

1, is an exact counterpart to the Uniform Commercial Code ? 2-206-1
(a). In case of bilateral contracts the offer shall be construed as an
invitation to a declaration of acceptance "by any means whatsoever."
However, as will be seen from the next chapter of this paper, Article
6, subsec. 1, has been read as having bearing upon another subject
namely, that acceptance requires communication.
As already indicated, to the Anglo-American lawyer the meaning
of Article 6, subsec. 2, would seem a matter of course. It is true tha
intricate problems are involved such as the question of acceptance by
despatch of nonconforming goods. However, the main line of thought
is clear enough. Subsec. 2 concerns unilateral contracts where accept-
ance may consist of an act.
To the continental lawyer, in view of his legal conceptual cate-
gories, the provisions of subsec. 2 appear as radical innovations. The
legal historian might find similarities between the unilateral con-
tract and the old real contract of Roman law. But according to the
modern view all contracts of sale are considered consensual contracts
which implies that as a matter of principle the acceptance must have
the character of a declaration of intention (a promise). The intention
must be recognizably communicated to the other party. The drafter
of the German Civil Code were bound to this formula. Acceptance by
doing an act constituted an exception, and it was the task of the
legislators to define the scope of this deviation from the principal
rule. ? 151 was drafted accordingly. "A contract is concluded by the
acceptance of an offer, although the acceptance is not communicated
to the offeror, if such a communication is not expected according to
ordinary usage, or if the offeror has waived it." The various legal
writings expose ? 151 as a rare case where a declaration of intention
is effective even though lacking the principal requirement of com-
munication.' Against this background Article 6, subsec. 2, of the
International Contract Law is seen as a broad exception to the ordinary
conceptual pattern necessitated by the needs of international business,
a view which was strongly emphasized in the Motives of the 1958
Draft.46
Anglo-American common law and European continental law have

in common the principle that there is no contract unless the acceptance
complies with the offer. Possibly, the American common law is less
strict on this point with regard to unilateral contracts. The promisor
might have the power to authorize as an acceptance after it occurs
an act which is not in conformity with the original offer. At least,
the Uniform Commercial Code lays down a rule to that effect. Ac-
45 See e.g., Nipperdey, op. cit., ? 162.1.2(a).
46 1958 Draft. Comments to Art. 5.

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cording to 2-206-1(a), not only the shipment of conforming goods,

but even the shipment of "nonconforming goods" is considered an
acceptance to an offer "to buy goods for prompt or current shipment."
In this case, however, the seller may protect himself from the con-
sequences of sending nonconforming goods by notifying the buyer
that the shipment was not made as an acceptance, but only as an
accommodation to the buyer.7 According to the continental European
view, the performance of the act by the offeree will be judged with
one question in mind. Did he intend to bind himself to a contract in
compliance with the offer? The European view, however, is not con-
sistent. There is a difference between countries like Germany which
adhere to the principle of intention and countries like Denmark and
Sweden which base their contract law on the principle that the prom-
ise shall have effect because of the expectancy of the promisee. A
German lawyer might claim that an act serving as acceptance should
be binding only to the extent that it expresses the will of its author.
The Scandinavian lawyer would be more inclined to consider as an
act of acceptance each act which in the eyes of a reasonable offeror
has that character.48
These differences in outlook between various nations came to the
surface during the debate at the Diplomatic Conference. The issue
was the effect of an acceptance by despatch of nonconforming goods.
As prescribed in Article 6, subsec. 2, the despatch of goods may be
equivalent to a declaration "by virtue of the offer or as a result
of the practices" of the parties, etc. The text of the 1958 Draft was
more specific. The act had to be done "on the terms of the offer"
("aux conditions de l'offre"). Although several delegates expressed
themselves in favor of the 1958 text, the last-quoted words were
deleted.'4 This decision was partly caused by an intervention of the
American delegate, Professor Mentschikoff. In her view, despatch of
goods nonconforming to the order "was also an acceptance, and the
injured party would be entitled to compensation according to the Law
of Sales."60 The question was not answered directly. According to
von Caemmerer,6 who was a member of the Committee on the In-
ternational Contract Law, the words "on the terms of the offer" of
the 1958 Draft most likely were intended to make clear that the act
should express an intention of performance in compliance with the
offer. These words were deleted because the members of the Committee
47 Cf. Anderson's Uniform Commercial Code, vol. 1, 1961, p. 124.

48 Cf. Folke Schmidt, "Model, Intention, Fault. Three Canons for Interpretation of
Contracts," Scandinavian Studies in Law, vol. 4, 1960, pp. 181 ff.
'4 The proposal was discussed at the 6th and the 8th sessions. See Conf./CR/Com.F/6
and Conf./CR/Com.F/8.
31 von Caemmerer, op. cit., p. 124.

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wanted to make sure that the buyer, in case of delive

forming goods, was entitled to ordinary remedies and
would not be defeated because of the defence that no contract had
been entered into. The records from the debate do not expressly
indicate the reason for the deletion. But to the reader of what appears
in the records,52 von Caemmerer's statement seems correct.
It is difficult to pinpoint the exact meaning attached to Article 6,
subsec. 2, by its drafters. Most likely there were differences of opinion.
Disregarding random situations, the present author submits that the
following is the core of subsec. 2 with regard to acceptance by the
despatch of nonconforming goods. In case the buyer has reason to
expect that the seller intended to comply with the offer-either be-
cause the seller believed that the goods were in conformity with the
offer or considered the nonconformity as unessential-the buyer is
entitled to declare that the goods were despatched because of his
invitation, and make use of the ordinary remedies of the Law of Sales.
It has to be admitted that this proposition is based upon the fragile
foundation of the probable intention of the International Contract
Law drafters. But there is a further argument in favor of the suggested
solution. As will be shown below under No. 7, the International
Contract Law in one other situation grants the offeror a similar power
to bind the offeree to what the offeree presents as an acceptance.
5. The "Zugangsprinzip," its Sphere of Application. In the presenta-
tion of Article 6, subsec. 1, to their national fora Professor von Caem-
merer53 and Professor Hellner54 bring forward the question whether
the offeree shall carry the risk for the transmission of his acceptance.
Professor von Caemmerer confines himself to the general statement
that the "Zugangsprinzip" (the principle that a promise or a declara-
tion of intention shall be delivered to the other party's address) is
applicable to the acceptance as well. Professor Hellner is more ex-
plicit. The expression "communicated to the offeror" implies, as
prescribed in Article 12, that it is "to be delivered at the address of
the person to whom the communication is directed." According to
Hellner, "it appears from this rule that the sender bears the risk of
transmission, and the offeror is accordingly not bound if the accep-
tance never reaches him. Thereby one has clearly repudiated the prin-
ciples of English and American law, according to which in many
cases-acceptance by mail particularly-the despatch as such is con-
sidered sufficient to bind the offeror."
The present author will not dispute the point that the International
52 The matter was discussed during the first part of the 6th meeting and during the
last part of the 8th meeting of the Committee. See Conf./CR/Com.F/6,8.
51 Professor Hellner's Report of December 1964.

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Contract Law adheres to the "Zugangsprinzip." That this is the case

is expressly indicated not only by the definition of Article 12 but
follows also from the provisions of Article 8, subsec. 1, on the time
of acceptance and from the rule in Article 10 that an acceptance can-
not be revoked unless the revocation is "communicated to the offeror
before or at the same time as the acceptance." The following concerns
its field of application.
Are there any exceptions to the "Zugangsprinzip"?
First, it should be mentioned that the "Zugangsprinzip" does not
apply to an acceptance of the kind mentioned in Article 6, subsec. 2.
In Anglo-American law, the requirement of communication does not
apply to unilateral contracts. As stated by Williston,55 the general
rule is that if the offeror wishes notice he must make that a condition
of his offer; otherwise he is obliged to inform himself whether the
act requested has been done. The International Contract Law follows
the same rule.56 This exception to the "Zugangsprinzip" is also men-
tioned by Professor Hellner in his presentation of Article 6, subsec. 2.
There is another possible exception. The author submits that a
distinction should be made between firm offers and revocable offers.
In case of revocability the "Zugangsprinzip" should not be applied
to the letter of acceptance. For this proposition there are a number of
arguments.
As mentioned before, the famous compromise formula of Article
5 lays down that as a matter of principle the offer is revocable. With
the revocable offer in mind it is prescribed in subsec. 4 that a revo-
cation of an offer shall only have effect if it has been "communicated
to the offeree before he has despatched his acceptance." Thus, the
offeror is bound from the time of the despatch of the acceptance. To
apply the "Zugangsprinzip" would mean that an additional condi-
tion had to be fulfilled, namely that the letter of acceptance will reach
the address of the offeror within the time prescribed in Article 8.
With Professor Hellner's two-conditions doctrine, the practical effect
of the rule of Article 5, subsec. 4, would be rather insignificant. How-
ever, such construction of the International Contract Law was prob-
ably not the intention of its drafters, at least not of those with an
Anglo-American background.
The "Zugangsprinzip" is a principle of general application in
German and Scandinavian law. It is stated as a broad principle in
? 130 of the German Code. "A declaration of intention required to
be made to another, if it is made in his absence, becomes effective
at the moment when it reaches him." In German and Scandinavian
law, it is part of a system where the offer is irrevocable by virtue of
55 Williston, On Contracts, vol. 1, 1936, ? 68.
56 Cf. Art. 8, subsec. 3, in particular.

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express statutory provisions. In earlier legal compara

it is considered as an alternative to the Anglo-Americ
Adams v. Lindsell, that an acceptance to an offer re
is effective as soon as the letter is posted, and consequent
is bound even if the letter is delayed during the transm
the "Zugangsprinzip" is generally treated as a part of
ing with the binding effect of an offer.57 Such expo
that it has no bearing upon offers which are revocable. T
material seems to indicate that the International Contrac
be construed accordingly.
As already mentioned, the 1958 Draft was based upo
and Scandinavian rule that offers are irrevocable.68
offeror was entitled to reserve a right of revocation. Fo
there was a rule in Article 4, subsec. 4, which cor
Article 5, subsec. 4. The revocation would never hav
it was communicated to the offeree "before the exp
acceptance" ("avant que celui-ci ait expedie' son accep
is no indication of a further requisite of communicat
by Hellner in his construction of the present law. On
in the Motives the rule of subsec. 4 is described as a
cation of the principle of communication ("Zugangsprinz
The quoted passage of the 1958 Draft was read accor
Belgian Government. The use of the word "expedie" w
as one might erroneously believe that the Draft had
principle of despatch.60 In his observations Professor Tu
criticism not truly justified, but nevertheless recommen
word "expedie" be deleted to prevent any possible mis
He suggested a new text: "A revocation of an offer will n
unless it is communicated to the offeree 'before his
("avant acceptation").6
The meaning of Professor Tunc's proposal is somew
If you consider the act of acceptance as including th
munication, it would seem to mean a total disregard
despatch, which is something quite different from Prof
"two-conditions doctrine." The student of the legisla
might be inclined to hold that Professor Tunc's stat
well-founded. At the Diplomatic Conference the Belg
57 See Rabel, Das Recht des Warenkaufs, vol. 1, p. 89. Cf. Cheshir
and Nussbaum, "Comparative Aspects of the Anglo-American Offer
Doctrine," 36 Col. L. Rev. (1936) 920.
58 Supra, p. 12.
6 1958 Draft, p. 19.
60 Doc./F/Prep./2, p. 6.
61 Doc./F/Prep./3, p. 7.

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tive moved in his own name the adoption of Professor Tunc's text
but failed to gain the support of the other delegations.62
Another incident at the Diplomatic Conference supports the opinion
of the present author that in the case of revocable offers the "Zu-
gangsprinzip" does not apply to the letter of acceptance and that the
offeror is bound from the time of the despatch of the acceptance
even when it does not reach the offeror within the target time of
Article 8. When the drafting of Article 5, subsec. 4, was debated at
the 11th meeting of the Committee on the Contract Law, the mem-
bers had before them a text of the following tenor: "The revocation of
an offer shall only have effect if it has been communicated before
he has sent off his acceptance . . .". According to the records there
was a discussion on a linguistic point. "The expression 'sent off' was
retained in the English text, for certain delegations considered that
the word 'sent' alone raised the unfortunate question of the arrival of
the acceptance."
One additional argument in favor of the opinion of the present
author remains. As will be demonstrated under No. 7, the offeror has
the power to consider late acceptance as having arrived in due time
provided that he promptly so informs the acceptor. As indicated
by the American delegate, Miss Mentschikoff, in the debates of the
Committee on the Contract Law, in such a case the contract is formed
by the despatch of a notice.63 In this situation, it seems hard to argue
the existence of a further requisite of communication. However, the
weight of the last argument might seem slight. In the eyes of the
author, it provides a further example of his general theory that the
International Contract Law shall be taken for what it is, namely,
a conglomerate of rules of various origins. For such a product one is
not permitted to demand the same consistency and inherent logic as
for national products of codification.
Thus the author submits the following construction of the Inter-
national Contract Law. When a firm offer is made, the main rule
of the "Zugangsprinzip" applies. The sender carries the risk of trans-
mission, and the letter of acceptance has to reach the offeror within
the time fixed for acceptance. If there is no time fixed in the offer
but the offer nevertheless shall be treated as firm, the letter of accep-
tance has to reach the offeror "within a reasonable time." With regard
to revocable offers, on the other hand, the offeror is bound by the
despatch of the letter of acceptance as such. It is of no concern that
the letter is delayed because of circumstances which the sender has
no power to control. If a letter of acceptance is lost during transmission,

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the offeree has his chance to send a second letter or to c

his acceptance in some other way."
6. Acceptance with qualifications. Article 7 of the Int
Contract Law runs as follows:
Article 7. "1. An acceptance containing additions, lim

or other modifications shall be a rejection of the offe
constitute a counter-offer.
"2. However, a reply to an offer which purports to
ceptance but which contains additional or different term
do not materially alter the terms of the offer shall c
an acceptance unless the offeror promptly objects to
crepancy; if he does not so object, the terms of the cont
be the terms of the offer with the modifications contai
acceptance."
The first part of subsec. 1 lays down the principal rule. As the
contract requires a meeting of minds, the nonconforming acceptance
constitutes a rejection. The continuation of the bargaining is saved
in part by the consecutive rule that the qualified acceptance operates
as an counteroffer. This additional rule is widely recognized. It is
laid down in express terms in the German Civil Code, ? 150, subsec.
2, and in the Uniform Scandinavian Contract Act, Art. 6, subsec. 2.
The American Restatement of the Law of Contracts, ? 60, gives the
same rule.
Subsec. 2 is worth special attention. The rule that the acceptance
has to correspond exactly with the offer has been regarded as a basic
element of the Law of Contract. Occasionally it has been justified in
the interests of certainty in legal transactions.65 To the present author
the strength of this argument is not very great. If certainty is the
purpose, it is the certainty of the original offeror at the expense of the
other party. However, most likely, the reluctance to acknowledge ex-
ceptions to the principal rule has to be explained by the weight which
has been attached to the idea of the wills of the parties as creating the
legal effect.
The rule that a qualified acceptance is deemed to be a refusal
coupled with a counter offer easily leads to awkward circumstances.
If two parties negotiate, each on several occasions making proposals
for alterations, they will change positions again and again, the pro-
spective seller being at one state the offeror, at the next one the offeree,
etc. At every stage each party starts from the beginning. There is
64The author does not wish to express any opinion on the case when a letter of
acceptance is lost and the offeror will not be notified before the passing of a considerable
period of time. Situations like those of the case Household Fire Insurance Co. v. Grant
(1879), 4 Ex. D. 216, are not likely to occur in international sales.
65 UPLR, vol. 105 (1957), p. 853.

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an offer with an invitation to accept. The situations become par-

ticularly confused when one party considers that a contract has
been entered into. This is, for example, the case when in reply to an
order containing an offer to buy, the prospective buyer receives a
letter of confirmation containing a reference to ordinary general
conditions for such sales.
Basically, there are the following methods of approach: (1) Legis-
lators may give the original offeror by means of notice the power
to make the additional terms part of the agreement. It should be
emphasized that this rule is not identical with the rule that a qualified
acceptance constitutes a counteroffer. There will be no period of
acceptance enabling the original offeror to contemplate whether to
take or reject the additional terms. Notice has to be given at once.
On the other hand, possibly he is relieved from the burden of the
risk for transmission. (2) Legislators may prescribe that silence makes
a contract with the additional terms as part of it. If they are on this
road, they may proceed one step further. It is not necessary that a
notice of the offeror shall aim at rejection. (3) They may grant the
original offeror the power by means of notice to take the acceptance
stripped of its additional terms.
The 1958 Draft applied the first method.66 The offeror was en-
titled to make additions or modifications part of the contract by
giving notice that he agreed to them. In the Motives the proposed
rule is presented as a more supple method of expressing the general
principle that an acceptance with qualifications constitutes a counter-
offer.67
The Uniform Scandinavian Contract Acts follow the second line.
The principal rule is the same as that of the International Contract
Law, namely, that the qualified acceptance constitutes rejection and
counteroffer. However, this rule does not apply in case the offeree
considers his reply of acceptance as conforming to the offer, and the
original offeror must have realized this misconception. The original
offerer has to give notice to the other party of the nonconformity
without undue delay. If not, a contract will exist in accordance with
the contents of the reply.68 With this rule-containing two subjective
tests, namely that of the intention of the offeree and that of the
offeror's knowledge of his intention-the drafters intended to rectify
hardship otherwise imposed on the original offeree. According to
the legislative material,6 there was, at the time of the introduction of
the bill, no corresponding rule in any other legal system.
66 Art. 7 (second part).
67 There were no immediate counterparts to subsec. 2 of Art. 7 in the two earlier drafts.
68 Swedish Contract Act, Art. 6, subsec. 2.

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The Uniform Commercial Code ? 2-207 concerns

when a "definite and seasonable expression of acceptance
confirmation .... is sent within a reasonable time," wh
states "terms additional to or different from those offe
upon." For the foreign student the meaning of ? 2-207
define in detail, but this can be left aside in this article.
to the relations between merchants it provides in subs
terms become part of the contract unless they mate
or notification of objection to them is given.70 Accor
1, the expression of acceptance shall operate as an acce
fore, in relations between merchants, the offeror has th
by silence to take the contract with the additional terms
or by notice of objection to take the contract stripped o
The present rule of the International Contract Law,
2, was suggested by the International Chamber of C
its observations the Chamber was very critical of th
on the point now concerned. On the basis of the nee
people the Chamber proposed a rule substantially ide
of the International Contract Law. At the Diplomati
the proposal was carried on a motion of the Swedish deleg
To continental lawyers the provisions of Article 7, s
appear to provide a workable solution to a problem o
tical impact. The more objective rule of the Uniform
Code seems undoubtedly preferable to the rule of the
Contracts Acts with its two subjective tests (the int
offeree and the offeror's knowledge of his intention
the present author submits that the regulation of th
Contract Law is not complete. It would have been
have a supplementary rule relating to the situation wher
does not want to take the additions. Like the Uniform
Code it ought to have contained a rule entitling the offe
notice to strip the acceptance of its additions. But such a
seriously considered. One may ask whether this has so
with the fact that such a rule is not a part of any co
system. Is the text of Article 7, subsec. 2, a modified ver
responding provision in the Scandinavian Contract Acts r
copy of the Uniform Commercial Code ?
70 The passage of the Uniform Commercial Code, ? 2-207, now co

following text:
"Between merchants such terms become part of the contract unless
(a) the offer expressly limits acceptance to the terms of the offer;
b) they materially alter it; or
c) notification of objection to them has already been given or i
reasonable time after notice of them is received."

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7. Late acceptance. Article 9 reads as follows:

Art. 9. "1. If the acceptance is late, the offeror may neverthe-
less consider it to have arrived in due time on condition that he
promptly so informs the acceptor orally or by despatch of a notice.
"2. If however the acceptance is communicated late, it shall
be considered to have been communicated in due time, if the
letter or document which contains the acceptance shows that it
has been sent in such circumstances that if its transmission had
been normal it would have been communicated in due time;
this provision shall not however apply if the offeror has promptly
informed the acceptor orally or by despatch of a notice that he
considers his offer as having lapsed."
Article 9 is one of the few articles of the International Contract
Law which has been taken over from the 1958 Draft without ma-
terial changes.
Subsec. 1 gives the offeror the power to consider the late acceptance
as having arrived in due time provided he tenders prompt notice
to the other party. This rule represents an innovation. In the two
earlier drafts, it was provided that the late offer should be considered
a rejection combined with a counteroffer. The two earlier drafts
had their models in the German Civil Code, ? 150, subsec. 1, and
the Scandinavian Contracts Acts, Art. 4 subsec. 1. The same rule
also is laid down in the American Restatement of the Law of Con-
tracts, ? 73, but the rule of the Restatement is not undisputed, and it
has no direct counterpart in the Uniform Commercial Code.
The author has not been able to trace the origin of Article 9,
subsec. 1. Materially, it has a great similarity to the rule which was
laid down in the 1958 Draft on the qualified acceptance according
to which the offeror was entitled promptly to give notice to the other
party that he agreed upon his modifications of the original offer.
Possibly both these provisions are influenced by a general idea in
American law that the offeror has the power to treat a qualified ac-
ceptance as conforming.
At the Diplomatic Conference the Swedish delegation proposed
an amendment to the effect that the late acceptance should amount
to a counteroffer. The Swedish amendment was supported by the
German delegation. When put to the vote, 9 delegations voted for
the Swedish proposal, 9 for the text of the 1958 Draft. By virtue
of the Rules of Procedure the Swedish proposal was thereby defeated.72
During the debate in Committee on the International Contract
Law, Judge Lagergren, representative of the International Chamber
of Commerce, and Professor von Caemmerer, the German delegate,

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expressed the view that the difference between the 1958 Dra
German-Scandinavian rule was slight. However, the Swed
was preferable because of its clarity.
The arguments in favor of the text as adopted were pr
among others by the delegate from Israel, Mr. Doron. T
was master of his offer and was therefore free to hold a bel
ceptance to be valid. It was necessary to avoid a continuous in
of notes and counternotes.
The difference between the German-Scandinavian rule and the
International Contract Law rule has been mentioned before.73 Ac-
cording to both, the original offeror has the option to take or to
reject the acceptance. The distinction between the two alternatives
lies in the fact that, according to the German-Scandinavian rule,
the parties are supposed to start all over again. The counteroffer is
valid for a reasonable time, but can be revoked on the same terms
as offers in general. The notice from the original offeror is a declara-
tion of acceptance, subject to the rules applicable to acceptance.
The text of the International Contract Law, on the other hand, im-
plies that the delayed acceptance still has to be considered an accep-
tance. The original offeror has no time for contemplation as his note
must follow promptly.74
Possibly, the German-Scandinavian rule has the advantage of
clarity, as the International Contract Law provides no specific rules
as to the effect of notices. However, this argument does not seem
convincing, since the same objection applies to all other provisions
on notices in the International Contract Law.75
The opinion of the present author is much in favor of the text as
adopted. To him it seems an advantage that the parties keep their
original positions as offeror and offeree and are not forced to make
a new start. It is hard to imagine any reason why the original offeror
should be granted the privilege of a time for contemplation when the
only thing that has occurred is the passing of a time limit.
It is also interesting to compare subsec. 1 with subsec. 2. Under
certain conditions-when the letter or document which contains the
acceptance shows that it has been sent in such circumstances that
if its transmission had been normal it would have been communicated
in due time-silence will heal the defect of late arrival unless the
offeror promptly gives notice of objection. This rule corresponds
substantially to the German Civil Code, ? 149, and the Uniform
Scandinavian Contract Act, Art. 4, subsec. 2. Therefore, it met no
objection from the Germans or the Swedes. However, the legisla-
78 Supra, pp. 12 ff.
74 Cf. von Caemmerer, op. cit., p. 130.
75 Art. 7, subsec. 2, and Art. 9, subsec. 2.

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tive purpose of this provision expressed in the Swedish legislative

material might bear equally upon the rule of subsec. 1. The original
offeror is obliged to give prompt notice. Otherwise the legislators would
give him the opportunity to gamble at the expense of the other
party."
8. The absence of provisions on the time of the conclusion of the
contract. During the long period of committee work which preceded
the Diplomatic Conference of 1964, great attention was paid to the
issue of how to define the time when the contract is actually con-
cluded. As mentioned before, the Rome Institute in 1934 appointed
the Committee on the International Contract Law for the specific
reason that the Committee on the International Law of Sales had
not been able to find a solution of that question. The provisions
of the 1936 Draft have been described above.7 In the 1958 Draft the
time of the conclusion of the contract was governed by Article 12.
A distinction was made between acceptances consisting of declara-
tions and acceptances consisting of other acts. Concerning the former
kind of declaration the following rule was laid down in the first
paragraph of Article 12: "If the acceptance consists of a declaration,
the contract shall be concluded by the fact of the acceptance being
communicated to the offeror."
In the Report published with the 1958 Draft, the Committee em-
phasizes the importance of a provision on the time of the conclusion
of the contract for the application of the Uniform Law of Sales.
Further, it explains why the time of the communication of the ac-
ceptance was considered decisive. "Indeed, the rules prescribed earlier
in this draft, as such are relevant with regard to the engagement of
the two parties, form the ground for the solution presented by
Article 1. The moment of the conclusion of the contract ought to be
the time when the acts that constitute the contract bind the two parties
irrevocably.""7
At the Diplomatic Conference the Swedish delegation proposed
the exclusion of Article 12. The proposal was seconded by the other
Scandinavian delegations, by the American delegation, and by the
representative of the International Chamber of Commerce. The Ger-
man delegation, too, considered provisions on the time of the con-
clusion of the contract superfluous. Austria, Belgium, France, and
the Netherlands were opposed to this proposal which, as the French
delegate, Mr. Malaurie, pointed out, would change the countenance
of the Uniform Contract Law.79 Article 12 was debated at the 9th,
77Supra, p. 2.
781958 Draft, p. 26.
7 From the records of the 9th session. Conf./CR/Com.F/9.

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10th, and 13th sessions of the Committee. When a vote was taken
at the 10th meeting, 8 delegates were in favor of the exclusion of
Article 12, and 10 in favor of its preservation. However, the debate
went on, and when the Swedish proposal was taken to a vote for
the second time at the 13th meeting, the votes were 9 to 5.
It was to be expected that the delegates would act on the basis of
their own experiences. The Uniform Scandinavian Contracts Acts
do not contain any provision on the time of the conclusion of the
contract, and the absence of such provision has not been considered
a weakness. The old German General Code of Commerce of 1861
dealt with the subject and so did the First Official Draft of a civil
code. The provisions on the time of the conclusion of the contract
were ultimately omitted from the text as superfluous. According to
Professor von Caemmerer, the courts have not felt that something
was missing.80 The American Uniform Commercial Code repudiates
expressly the idea of fixing a time for the conclusion of a contract.
According to ? 2-204-2, "an agreement sufficient to constitute a con-
tract for sale may be found even though the moment of its making
is undetermined."
The main arguments for the exclusion of Article 12 were pre-
sented by the representative of the International Chamber of Com-
merce, Mr. Lagergren: (1) Article 12 was a repetition only of the
contents of the foregoing articles of the Draft, (2) the suggested
definition was not in accordance with the work of the Committee on
the Uniform Sales Law.
In his paper in Rabels Zeitschrift, Professor von Caemmerer pre-
sents these arguments contra in greater detail.8' The time of the
conclusion of the contract is relevant in a great number of situations.
In many legal systems, it will be of importance when transfer of
property or transfer of risks are concerned. Further, it might be rele-
vant in the law of accounting, tax law, the law of bankruptcy, and the
law of conflicts. In the International Law of Sale it has bearing upon a
number of questions, e.g., the existence of an international sale to
which this law is applicable (Art. 1), the place and the date of delivery,
the fixing of the price (Art. 22, 23, 57), and the quantum of damages
(Art. 82, 84). Rules on the conclusion of the contract would have
to reflect the fact that such a number of different functions are at-
tached to the concept. It is unimaginable that all the needs could
be satisfied by a simple rule that the communication of the declaration
of acceptance makes the contract complete. Therefore, a provision
defining the moment of conclusion could only concern the Inter-
national Contract Law exclusively. However, it would add nothing
81 von Caemmerer, op. cit., pp. 136 f.

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new to that act, and, in fact, would be an unnecessary repetition of

what was stated in the earlier articles of the act on the effect of the
declarations of the parties and the contractual agreement.
The present author supports the conclusion of Professor von Caem-
merer, that it was wise to exclude Article 12 from the text of the
Uniform Contract Law, but would argue the case somewhat dif-
ferently. The drafters wanted to have the International Contract Law
as an auxiliary to the more important International Law of Sale.
Accordingly, it was made applicable to international sales exclusively,
although its terms have such an abstract character that they seem fit
to apply to all kinds of contracts. Von Caemmerer's point that the
moment of the conclusion of the contract concerns a great variety of
problems, such as transfer of property, the law of bankruptcy, etc.,
demonstrates the emancipation of the rules on the formation of
contracts from the law of sales. There are reasons to expect that the
courts of many countries will look for guidance to the International
Contract Law when other legal transactions are concerned, both inter-
national and domestic. The present author submits, however, that a
provision in the International Contract Law on the matter of time of
conclusion should be judged only from the viewpoint of its character
as an auxiliary to the International Law of Sale.
It must be admitted, first, that Article 12 in part repeats the other
articles of the draft. But this fact does not in itself necessarily imply
its superfluousness. In this context repetition means that the same
situation described by the term "the time of the conclusion of the
contract" can be described in other words as well. The term "the
time of the conclusion of the contract" is meant to be equivalent-
where acts of declaration are concerned-to the term "the time when
the acceptance was communicated to the offeror." Yet it can be argued
that the drafters should have chosen the latter term, though for
various reasons they preferred the term "the time for the conclusion
of the contract" ("lors de la conclusion du contrat").
The second objection is much more relevant. A definition in the
International Contract Law will serve no purpose unless the same
meaning is attached to the term "the time of the conclusion of the
contract" wherever it is used in the International Law of Sale.82
From the advocates for the preservation of Art. 12 one might have
expected the counterargument that the idea as such was sound, and
it is only the text of Article 12 that should be reconsidered. However,
an examination of the Articles of the International Law of Sale which
refer to the time of the conclusion of the contract reveals such a
weakness in legislative technique that a solution along the lines sug-
82 References are made to the time of the conclusion of the contract in the following
articles: 1, 10, 22, 23, 36, 38, 46, 57, 73, 74, 82, 86, 99.

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gested in Article 12 would seem almost beyond reach. In his

of Article 12 von Caemmerer suggests, for the purposes o
that it is the time when the buyer binds himself definitely
be conclusive for the question concerning whether he kne
goods were not in conformity with the contract.8 Artic
not help us to discover this moment, but neither would
which refers to the time of the conclusion of the contract. A
of the Uniform Law of Sale and Article 12 of the 1958 Draft
Contract Law "exist" on different levels of abstraction, t
distinguishes between the buyer and the seller, the latter be
offeror and the offeree. More specifically, the author's objec
be expressed as follows: In a Law on Contracts the drafters h
and acceptance as their instruments and with these term
able to delimit a moment, such as the moment when the
the offeree became bound or the moment when both of
bound. But the time when the buyer becomes bound can
scribed in terms which have reference to another legal qu
namely, a person's capacity as offeror or offeree. This is sim
the buyer may be seen as the offeror or the offeree dep
from whom the offer originated, i.e., the buyer or the seller.
A look at the International Law of Sale as it now stand
that out of 13 articles which use the term "the time of the c
of the contract," 7 refer to the buyer or the seller, and the
ing to each or both of the parties.84 Any of the 7 articles are
same criticism as was observed on Article 36.
Does this critical analysis imply that none of these 7 p
of the International Law of Sale connote anything with r
relevant point in time? Certainly not. The author has been
during the internal discussions within the Swedish delega
fessor Hellner made the point that when an article of th
Sale refers to the time of the conclusion of the contract,
the period from the time when the acceptance was desp
the time when both parties were finally bound. This is op
instance, to the time of the performance. In a case where th
was made in January and the goods should be delivered
was generally enough to know that the parties had excha
promise between January 10, when the offer was despa
January 15, when the acceptance was communicated. Only
rare occasions does the court need to know the exact day
situations the court has to take into consideration the purpos
provision. Possibly the courts of different countries ado
84 The seller or the buyer are referred to in Art. 22, 23, 36, 38, 46, 57, an
both of the parties are referred to in Art. 1, 10, 73, 74, 82, 86.

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International Law of Sale will not choose the same alternatives. How-
ever, a lack of uniformity within such a narrow area as the time of
the despatch of the offer to the time of the communication of the
acceptance will most likely not do much harm.
CONCLUSIONS
With regard to almost any matter, conflicting national interests

are obstacles which must be surmounted before the attainment of an
international agreement. A state, for instance, may judge a draft
international law of sale from the point of view of what benefits
are granted to the seller and what to the buyer. Should the decision-
makers consider that their country's interests are more concerned
with the import than with the export trade, they may refuse to sign
a convention on a draft which gives the best parts to the seller. Yet,
the path towards agreement on rules concerning the formation of
contracts should hardly be blocked by such impediments. Thus under
the International Contract Law, dependent upon the circumstances,
the seller, for instance, is seen as either the offeror or the offeree. The
definition of offeror or of offeree will not exclusively denote a single
commercial class whose interests the legislator must heed. It is im-
probable that a state would let its assent depend upon whether the
draft has paid proper regard to the interests of the offeror as opposed to
the interests of the offeree.
Other divergences of opinion have to be overcome, however. In
two countries different rules may apply to similar situations. In
the eyes of the detached outsider the reasons for the two solutions may
seem equally good, but for the ordinary lawyer the rule applicable
in his own country has a specific value of its own. He knows that
it has functioned, perhaps for a long period of time, and successfully
withstood attacks, and he doubts that any other rule will function
with equal smoothness. It is easy for him to ascribe to his own rule
the quality of being particularly beneficial. I have mentioned before
the dispute between the British delegate, Mr. Reid, and the Hun-
garian delegate, Mr. E6rsi, during the debates of the Committee on
the revocability of the offer. "The case of a businessman who wanted
never to revoke would not arise." "If someone receives an offer, he
needs a certain time to reflect."85 It did not appear to either of them
that the ordinary businessman might want both, but that it was the
legislator or the parties to the contract themselves who had to make
a choice between the revocable and the firm offer.
Legal doctrines are metaphors which give the framework for a sug-
gested rule, and more seldom, an exact description of the situations
85 Supra, pp. 12, 13.

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where it is to apply. The student of a foreign legal syst

position not unlike that of the infidel: it is not easy for
imagine the "true" reasons for a certain precept. The revo
provides an example. It is not unusual that continental law
the doctrine of consideration to be very outmoded. Cert
Germans and the Scandinavians consider their principle that
is binding as such as representing a higher stage of developm
the rules applicable to the original Roman consensual con
fessor von Caemmerer gives emphasis to this aspect in hi
Rabels Zeitschrift. "During the deliberations in the Com
an International Contract Law the differences looked almost
cilable. The states which recognized the principle of firm
wanted to hold steadfast by this doctrine which they con
more progressive one."86
When measuring the success of the undertaking to prod
ternational Contract Law one has to take into consideration t
elements that are common to the member states, as w
divergences. Such concepts as offer and acceptance and th
of the meeting of minds belong to a common heritage. W
concepts nonexisting, the legislators in all situations had
their rules to the positions of a seller or of a buyer. Then it
have been possible to sift out a body of rules on the form
contract of sale.
The departures are considerable, however. In the Anglo-
legal system there is an emphasis on the promise, which
many of the differences in relation to continental legal syst
division between bilateral and unilateral contracts is another char-
acteristic feature. On the other hand, the Roman law concept of the
consensual contract has no true counterpart in Anglo-American law.
The German and Scandinavian principle that the offer is binding as
such might be regarded as an outflow from the Roman consensual
contract.
There is a trend within the field of the law of contracts wh

operating independent of the variations in historical background.
idea of complete conformity between the two elements of the con
the offer and the acceptance, is retrogressing under the pressure o
needs of business-life. If one of the parties has reason to expect t
agreement had come into existence or he has considered a pro
regulation of routine matters as fair, the legislators may pr
for a rule which heals possible dissensions. In this respect the
differences between the German Civil Code of 1896 where the
exceptions to the principal requisite of unanimity are rather modest,
the Scandinavian Contracts Acts of 1915-1929 which have taken

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some further steps in the new direction towards the adoption of a

principle of healing, and the United States Uniform Commercial
Code, 1952, revised 1957, which represents the first effort to face the
problems caused by the extensive use of standard regulations in letters
of confirmation, in printed contracts, or otherwise.
Because of its abstract character the reading of a statutory text
always involves difficulties which are aggravated when foreign ele-
ments are involved. The reader is too easily misled by ways of thought
that belong to his own legal background. In No. 2 of this paper the
present author discussed the effect of the public offer. With regard
to the history of the International Contract Law, it is not permissible
to read into Article 4, subsec. 1, a provision that, since each offer has
to be addressed to "one or more specific persons," therefore an ad-
vertisement or a window-display should not constitute an offer. When
Professor Hellner took this view, he might to some extent have been
influenced by his Scandinavian background.
In No. 4 the present author has tried to analyse Article 6 of the
International Contract Law. In the opinion of the author it has to
be looked upon as a counterpart to a provision in the Uniform Com-
mercial Code. Article 6 expresses the basic differences between bi-
lateral contracts where a promise is given in exchange for a promise
and unilateral contracts where an act is given in exchange.
It is true that the International Contract Law acknowledges the
"Zugangsprinzip" (the principle that the promise, in order to have
effect, has to be delivered to the other party's address). However, this
cannot be read into the text of Article 6, subsec. 1, but follows from
the provisions of Articles 8, 10, and 12. The author submits that the
statements by Professor von Caemmerer and Professor Hellner with
regard to the meaning of Article 6, subsec. 1, may be explained by
the same problem of background mentioned above.
There is a possible divergence of opinion with respect to the ap-
plication of the "Zugangsprinzip" to revocable offers. The present
author has tried to demonstrate that the Anglo-American delegates
at the Diplomatic Conference did not intend to deviate on this point
from their traditional rule that the contract comes into full effect
with the despatch of the acceptance. If this observation is correct, one
should not permit himself to read into the International Contract
Law the further condition that the letter of acceptance has to reach the
offeror within the time of acceptance. It must be conceded, however,
that Professor Hellner's application of the "Zugangsprinzip" even in
this situation is consistent with the standard Scandinavian and German
approach.
The International Contract Law is the product of give and take
bargaining. It might be of some interest to see whether the drafters

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produced a patchwork quilt of pieces from different legal sy

side by side or if they created rules which are truly new.
In this report, the author has studied Article 4, subsec
concept of the offer, Article 5 on the effect of the offer, A
the matter of what constitutes an acceptance, Article 7 on ac
with qualifications, and Article 9 on late acceptance. With
Article 4 we found that the controversial point on the eff
public offer was avoided. The requisite of Article 4 that
should be sufficiently definite to permit the conclusion of t
by acceptance represented nothing new. It was ground c
all the leading legal systems. Article 5, subsec. 2, on the r
of the offer is a compromise formula worth closer examin
on. Article 6 with its distinction between acceptance by d
and acceptance by the performance of an act seems almos
an American product with its model in the Uniform Co
Code. Article 7, subsec. 1, with the principal rule that a
acceptance shall be a rejection combined with a counteroffer,
the ordinary conservative view of the law of contracts.
originated from a proposal by the International Chambe
merce but even here the Uniform Commercial Code served as the
model. The author has not been able to trace the origin of Article 9,
subsec. 1, that a late acceptance after prompt notice may be con-
sidered as having arrived in due time. Possibly, it has a background
in American law, too. This is a guess only. There is no counterpart
to it in the Uniform Commercial Code, and the Restatement of the
Law of Contract points in another direction. Most likely, the rule of
Article 9, subsec. 1, can be considered a true innovation.
The rules on the revocation of the offer deserve special attention.
Article 5, subsec. 2, was considered by the members of the Diplomatic
Conference to be a compromise formula. In one respect this opinion
is certainly justified. The Anglo-American doctrine of revocability was
acknowledged as the principal rule, but in compromise it was stripped
of its mandatory character. This author has already expressed a
critical view with regard to the value of the good-faith clause which
was added in concession to the German and Scandinavian delegates.
It is foreseeable that the actual law of a country will depend upon
the practice of the courts, and it is, in fact, very possible that the
good-faith clause will be interpreted differently in different countries,
thereby creating a rift in the web of international uniformity.
We are now ready to answer our question. The greater part of the
provisions which were the object of our study have been taken over
from different national legal systems, only one or two rules being
innovations. However, there is nothing to be criticized in this fact as
such. The wide use of models is bad only in case rules which are

149.202.179.69 on Wed, 10 May 2023 07:49:56 +00:00
placed side by side do not match because they express different policies.
As far as the present author can judge, in most parts a happy con-
junction exists between the individual elements. It is only on one
point that he expresses an opposing view. There is tension between
Article 7, subsec. 1, expressing the old requirement of unanimity of
the parties in every respect, and subsec. 2 with its principle of healing
of the contract. In this context the author calls attention to his observa-
tions on the exclusion from the final text of provisions on the time
of the conclusion of the contract. In light of the drafts this outcome
was unexpected since the need for such provisions was the main
reason why the project of an International Contract Law was studied
separately. The Scandinavian, the American, and the German delega-
tions who took the lead acted upon the basis of their own experi-
ence. They based their positions upon the fact that their laws did not
contain any provisions on the subject.
There were other arguments in favor of the exclusion of the
draft rule, too, the most relevant one being that it was not in con-
formity with the International Law of Sale. The present author has
carried this point further and demonstrated a weakness in the sug-
gested legislative technique. It is ultimately impossible to define the
relevant moment of a contract's conclusion with the conceptual tools
now in use. An act, like the International Contract Law, which
regulates the effect of offer and of acceptance cannot be used for the
purpose of filling a gap in a provision which has reference to the
position of the buyer or the seller.
With this argument in mind, it is not the outcome, but the resistance
with which the proposal for exclusion was met that might be con-
sidered unexpected. When the vote was taken for the first time the
proposal was actually rejected and at the final vote it was carried by
9 to 5. In the eyes of the present author this incident demonstrates
the impact of the continental doctrinal heritage. It is a part of the
Roman law that the contract is consummated at a certain time and
that it becomes effective with its consummation. A lawyer trained in
a Roman law system might be inclined therefore to attach to this
moment various legal effects. And the person who claims that with
regard to certain relations this singling out of a moment will lead to
unsatisfactory results must carry the burden of proof.
Most likely, the International Contract Law will be judged differently
in different national fora. It is natural to ask what influence one's own
national legal system has exercised on a product of this kind. As men-
tioned in the introduction, Professor Hellner in his Report to the
Swedish Minister of Justice of Dec. 1964 claims that the Scandinavian
influence was great. It is true that the Scandinavians, including the
Swede Lagergren, who was the representative of the International

149.202.179.69 on Wed, 10 May 2023 07:49:56 +00:00
Chamber of Commerce, were very active before and

Diplomatic Conference. We have seen that some of th
(the revised text of Article 7, the exclusion of Article 12 of
Draft) were based upon Swedish proposals. However,
author comes to another conclusion than that of Professo
Generally speaking, the Scandinavian influence was not
important. With respect to the actual content of the rules e
the International Contract Law, there is very little if a
which Scandinavian law might be considered the principa
most of the points where the provisions of the Internation
Law correspond to the Scandinavian Contract Acts we h
with rules which are common to a large group of legal syst
is another legal source which is more relevant-and here
Hellner probably concurs-namely, the American Uniform
cial Code. It set its stamp on the compromise formula of Art
of the other articles comport with American elements, t
direct counterparts on European soil.
As already indicated, it is likely that the International Con
in its turn, will serve as a model when national contrac
revised. If a number of states incorporate this law into thei
legislation, and thus accept it as something here to stay, som
the future one may consider amendments, profiting fr
periences gained in practice. In this perspective the author
to emphasize some features of particular importance. The In
Contract Law pays regard to the ordinary businessman's
than to legal doctrines. Thus the provisions of Article 6
on acceptance by modes other than a declaration opens a
a realistic appraisal of the actual behavior of the parties
tract. The fact that this section has a doctrinal backgr
Anglo-American concept of the unilateral contract does not
the least from its usefulness as a fresh part of European
law. The provisions of Article 6, subsec. 2, and of Article 9,
are based upon the principle that minor inconsistencies be d
Article 9, subsec. 1, gives the offeror the power to con
acceptance as arriving in due time. Behind these provisio
found a policy of healing of the contract. As demonstra
observations to Article 7, subsec. 1, however, the Interna
tract Law does not pay full regard to this policy. In case
it might be worth considering further steps in the directio
ing the principle of healing.

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The International Contract Law in the Context of Some of Its Sources

Author(s): Folke Schmidt

Stable URL: https://www.jstor.org/stable/838526

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The International Contract Law in the

1. Introduction. At the Diplomatic Conference at the Hague, Ap

FOLKE SCHMIDT is Professor of Private Law, University of Stockholm.-The prese

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contracts in general, but particularly to contracts for internat

The idea of laying down general rules applicable to all k

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Finland 1929.6 Chapter 1 (Arts. 1-9) is titled "On the Formation of

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Most likely some national laws have influenced the Int

formation des contrats de vente internationale" etc., Nov. 1963 (mime

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Conference-the Uniform Commercial Code had been adopted by 31

"The communication which one person addresses to one or more

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invitations such as create a contract when the invitor fa

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defined as a communication by one person to another ("a une

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the Diplomatic Conference, but leaves the matter to t

3. The effect of the ofer. The International Contra

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conformity with fair dealing or unless the offer states a fixed

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ligations arise, indeed the party will be bound by the declaration of

22 Swedish Motives, p. 37.

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The two earlier Drafts tried to make a compromise the basis of

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he needs a certain length of time to reflect. But if the risk of

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The compromise formula is obscure with respect to the effect of

The American delegation intervened to state that this would not be

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models. ? 242 in the introductory part of the "Law of Obligations"

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present text. It should therefore be indisputable that Article 6, subsec.

Anglo-American common law and European continental law have

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cording to 2-206-1(a), not only the shipment of conforming goods,

47 Cf. Anderson's Uniform Commercial Code, vol. 1, 1961, p. 124.

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wanted to make sure that the buyer, in case of delive

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Contract Law adheres to the "Zugangsprinzip." That this is the case

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express statutory provisions. In earlier legal compara

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the offeree has his chance to send a second letter or to c

Article 7. "1. An acceptance containing additions, lim