History & Modern Evolution of Transnational Commercial Law

Document-Id: 650000, Please cite as: "https://www.trans-lex.org/650000"

Title

Brunner, Christoph, Murmann, Thomas, Stucki, Marius in: Brunner, Christoph, Gottlieb, Benjamin (eds.), Commentary on the UN Sales Law (CISG)

Table of Contents

b) Incorporation and Interpretation of Standard Terms and Conditions

Content

b) Incorporation and Interpretation of Standard Terms and Conditions

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39(1) Consensus Review (1st Level; Incorporation of Standard Terms): The incorporation of standard terms is governed by the CISG’s provisions on the formation (Arts. 14 et seqq.) and interpretation (Art. 8) of the contract.249 For a valid incorporation, the offeree must have known or could not have been unaware of the offeror’s intent to include the standard terms into the contract at the time of contract conclusion (Art. 8(1)), or this must be the understanding that a reasonable person of the same kind as the offeree would have had in the same circumstances (Art. 8(2)).250 This imposes on the offeror of standard terms two specific requirements: Firstly, any contract offer must include a clear reference to the standard terms the offeror intends to incorporate into the contract.251 Secondly, the offeror must send the standard terms to the offeree or make them otherwise available (“making available test"), unless other usages or practices apply between the parties (Art. 9).252 The “making available test” constitutes a higher threshold for the valid incorporation of standard terms than in many domestic jurisdictions, where the mere possibility of the offeree to take note of the standard terms in a reasonable manner is often sufficient.253 In international trade, however, it would be inadequate and in contradiction to the parties’ information and cooperation duties to impose on the offeree the obligation to actively obtain awareness of the standard terms.254 Also, the offeror can only be bound by standard terms issued in the language usually used by him or in the language of the contract or the contract negotiations.255 The qualification of certain languages as “world languages”, which may be used independent of the specific circumstances of the contract, should be rejected.256

40In case of electronical offers it is sufficient if standard terms are added as attachment to an e-mail or if they can immediately be consulted on the Internet by means of a “link”, where they can be downloaded and printed out without any further costs or difficulties.257 To validly incorporate standard terms into online contracts, the offeree must necessarily come across the standard terms before concluding the contract. When a contract is otherwise not concluded online, standard terms available only online have effect under the condition that the offer clearly refers to the standard terms and the URL where they may be found and that based on the circumstances (e.g., the offeree’s use of the Internet in prior communications), the offeror may rely on the fact that the offeree can easily download, print and take note of the standard terms.258 In both cases - standard terms being made available physically or online -, it is irrelevant whether the offeree reads the standard terms or if he accepts them without actual consultation (“global acceptance”, see infra para. 44 fn. 269); the only prerequisite is that there is a clear reference to the standard terms in the offer and that they are made available to the offeree in a reasonable manner.259

41Standard terms that are added after conclusion of the contract only have effect if they qualify as a modification to the contract under Art. 29. Generally, silence of the offeree to an offer to modify the contract does not constitute acceptance.260 It therefore follows that standard terms which figure only in an invoice sent after the conclusion of the contract typically do not form part of the contract.261 Dependent on the circumstances, however, a different conclusion may be drawn in case of silence after receipt of a commercial letter of confirmation referring to standard terms.262

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249Gerechtshof Den Haag, 22 April 2014, CISG-online 2515; OGH, 31 August 2005, CISG-online 1093; Kantonsgericht Zug, 11 December 2003, CISG-online 958; BGH, 31 October 2001, CISG-online 617; CISG-AC Opinion No. 13, Black Letter Rule para. 1.
250Th. Koller, FS Honsell, 236; Kröll et al./Ferrari, Art. 14 para. 39.
251Staudinger/Magnus, Art. 14 para. 41; Th. Koller, FS Honsell, 237; CISG-AC Opinion No. 13, B/2.9 et seqq.; see also Oberlandesgericht Düsseldorf, 30 January 2004, CISG-online 821, para. III.1.b.bb.(1) (in this case it was not sufficiently clear that the seller wanted to include its standard terms of delivery, which were printed on the backside of its business paper, into the contract).
252BGH, 31 October 2001, CISG-online 617 (leading case, “An effective inclusion of general terms and conditions therefore presupposes first of all that the recipient of the offer is aware of the intention of the offerer to include his terms in the contract. In addition, [...] it must be demanded that he sends the recipient the text or makes it accessible in some other way.”); Gerechtshof Den Haag, 22 April 2014, CISG-online 2515; Landgericht Stuttgart, 15 October 2009, CISG-online 2019; Oberlandesgericht Celle, 24 July 2009, CISG-online 1906; Magnus, ZEuP 2002, 531 et seq.
253Such is, for example, the case in Switzerland and Germany. See Schlechtriem/Schwenzer/Schroeter, Art. 14 para. 48; Ventsch/Kluth, IHR 2/2003, 224; Piltz, para. 3-89; Huber/Mullis/Huber, 31.
254BGH, 31 October 2001, CISG-online 617, para. 111.2; Magnus, FS Kritzer, 320 et seq.
255Oberlandesgericht Hamm, 6 December 2005, CISG-online 1221; in detail Landgericht Heilbronn, 15 September 1997, CISG-online 562, para. 4; Amtsgericht Kehl, 6 October 1995, CISG-online 162; Piltz, battle of forms, [WRZ 2017, 196; Ferrari, Draft Digest 2004, Art. 8 para. 22; CISG-AC Opinion No. 13, Black Letter Rule para. 6.2. If a party accepts an unknown language as language of the contract, one can reasonably expect that party to obtain the necessary translation before concluding the contract. In case a party accepts but does not (correctly) understand contract clauses written in a foreign language, he may be entitled to assert mistake under the applicable domestic law (Th. Koller, FS Honsell, 237; see supra para. 10).
256In the same vein Schlechtriem/Schwenzer/Schroeter, Art. 14 paras. 72 et seq.; CISG-AC Opinion No. 13, B/6.6.
257See Magnus, ZEuP 2002, 532; Th. Koller, FS Honsell, 238.
258See Perales Viscasillas, Draft Digest 2004, 269; Stiegele/Halter, Nochmals: Einbeziehung von Allgemeinen Geschaftsbedingungen im Rahmen des UN-Kaufrechts - Zuganglichmachung im Internet, JHR 2003, 169. Critical towards the possibility of incorporating standard terms by merely publishing them on the Internet Magnus, FS Kritzer, 322 et seq.; Piltz, AGB in UN-Kaufvertragen, IHR 2004, 134; Ventsch/Kluth, IHR 2/2003, 224 et seq.
259Drasch, 8; Th. Koller, FS Honsell, 238.
260Schlechtriem/Schwenzer/Schroeter, Art. 14 para. 67; CISG-AC Opinion No. 13, Black Letter Rule para. 4.
261U.S. Court of Appeals (9th Cir.), 5 May 2003, CISG-online 767; Landgericht Trier, 8 January 2004, CISG-online 910.
262See Th. Koller, FS Honsell, 228 et seq.; Schlechtriem/Schwenzer/Schroeter, Intro to Arts. 14-24 paras. 36 et seqq., 39 (failure to respond to a commercial letter of confirmation can only be deemed an acceptance if such a rule constitutes an international trade usage under Art. 9(i) or (2)); see infra Introductory Remarks to Arts. 14-24 paras. 8 et seqq.

Referring Principles

Trans-Lex Principle: IV.3.2 - Inclusion of standard terms

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