History & Modern Evolution of Transnational Commercial Law

Document-Id: 650001, Please cite as: "https://www.trans-lex.org/650001"

Title

Magnus, Ulrich, in: DiMatteo, Larry, Janssen, André, Magnus, Ulrich, Schulze, Reiner (eds.), International Sales Law - A Handbook, 2nd ed. 2021

Table of Contents

XI. Comparative Conclusions

Content

XI. Comparative Conclusions

99There is wide unanimity concerning the starting point: first, the offer, the accep- tance and finally the contract must clearly (though not necessarily expressly) state that standard contract terms shall apply. Without such clear and visible or audible intent, particularly in consumer cases, standard terms cannot form part of the contract even if they were sent or handed over. Secondly, the addressee of the terms must be given a fair chance to take notice of them. However, views differ about how far this requirement reaches. The reason for placing the burden on the offeror of the terms is the fact that it is the offeror who wants to benefit from incorporating the standard terms. The other party cannot be expected to search for the terms or for their correct version.
100The fair notice requires that the offeror of the terms make them reasonably accessible to the other party.117 Yet, the actual reading or knowledge of the terms is not necessary. The possibility to take notice of them is sufficient. With respect to reasonable access the preferable solution is for the standard terms to be sent, handed over or, in case of electronic communication, be immediately downloadable. A mere reference to standard terms that are not attached in one of these ways should not lead to their incorporation into the contract. Accessibility, however, is not required where the other party already knew or should have known the contents of the standard terms, for instance from prior transactions or negotiations or where there is a commercial usage that certain standard terms are regularly used in a particular business or industry.

101The battle of the forms concerns merely business parties. The battlefield of how the problem of conflicting standard contract terms should be solved is still governed by the last shot theory and the knock-out rule. The comparison shows an increasing sympathy for the knock-out rule (see CISG and German practice, PICC, PECL, CESL, UCC, French Civil Code). The conflicting terms should therefore fall away while the terms in common form the contract. However, the principles of freedom of contract and party autonomy require that a party must still have the possibility to reject the terms of an acceptance which deviates from the offer. This is the justified core of the last shot theory. The knock-out rule should therefore be the starting point which is modified by a reasonable and serious objection of the party not willing to accept the other party's terms. Such objection merely in standard terms or in another standard formulation should not suffice but a separate, clear and individual declaration should be required.
102The battle of the forms concerns merely business parties. The battlefield of how the problem of conflicting standard contract terms should be solved is still governed by the last shot theory and the knock-out rule. The comparison shows an increasing sympathy for the knock-out rule (see CISG and German practice, PICC, PECL, CESL, UCC, French Civil Code).118 The conflicting terms should therefore fall away while the terms in common form the contract. However, the principles of freedom of contract and party autonomy require that a party must still have the possibility to reject the terms of an acceptance which deviates from the offer. This is the justified core of the last shot theory. The knock-out rule should therefore be the starting point which is modified by a reasonable and serious objection of the party not willing to accept the other party's terms. Such objection merely in standard terms or in another standard formulation should not suffice but a separate, clear and individual declaration should be required.

117In this sense also Jansen, ‘Art. 2:104: Terms not Individually Negotiated, in Jansen/Zimmermann (eds), Commentaries on European Contract Laws (2018) 272 et seq.
118For a comparison of the battle of the forms-provisions of the UCC, CESL and PICC see Christandl, 'Art. 2-209: Conflictiing General Conditions', in Jansen/Zimmermann (eds), Commentaries on European Contract Laws (2018) 339 et seq.

Referring Principles

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

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