History & Modern Evolution of Transnational Commercial Law

Document-Id: 650002, Please cite as: "https://www.trans-lex.org/650002"

Title

Honnold, John O., Flechtner, Harry M., Harnold's Uniform Law for International Sales unter the 1980 United Nations Convention, 5th ed. 2021

Table of Contents

(b) Incorporation of Standard Terms

Content

195

(b) Incorporation of Standard Terms

The relationship between the second type of domestic protective legislation and the Convention will be explored in more detail in discussing Article 35 on conformity of goods to the contract, but the interplay between Article 8(2) and domestic laws governing the application of a patty’s standard terms (“‘boilerplate”)—an issue that has arisen in decisions applying the Convention—deserves comment here.18 The German BGH has held that Article 8(2), rather than domestic law, governed whether a party’s standard terms, referenced in but not included with an offer that was accepted, were incorporated into the party’s contract; the court denied effect to those terms on the footing that “a reasonable person of the same kind as” the offeree would not have understood the terms to be part of the parties’ agreement.19 The previous edition of this Com- fientary opined that the BGH decision “represents an appropriate use of Article 8(2) in lieu of domestic law of the second type described above.”

It reasoned that:

Asking whether a “reasonable person of the same kind as” one party would have understood that the other party’s standard terms were part of the agreement, as per Article 8(2), seems a pertinent inquiry for the kind of issues raised by the use of standard terms—i.e., whether, given the realities of the transaction between the parties, a party was put on actual fair notice of the other party’s standard terms and not unreasonably burdened in discovering their content; or, on the hand, whether the standard terms were interjected in a manner and/or form that did not reasonably encourage (that may even have been designed to discourage) understanding and real bargaining.”20

In the view of the author of the current edition, this reasoning remains generally sound. The previous edition, however, also warned:

A malleable general standard such as the “reasonable person,” however, must be employed with great care in this area: the temptation to incorporate domestic law approaches under the “reasonableness” rubric (what could appear more “reasonable” than what one is accustomed to under familiar domestic law?) must be recognized and resisted.

196

To the extent the BGH decision reflects a domestic law view (and thus represents an instance of the homeward trend), of course, it is subject to criticism. In addition, to the extent the BGH decision set out a general requirement that standard terms must always—not just on the facts of the particular case before it–be included with (not merely referenced in) an offer, the court misconstrued the fact-specific nature of the Article 8(2) inquiry and over-stepped its authority. The “reasonable person” standard is not subject to such inviolable generalizations, particularly in the emphatically-situational approach adopted by Article 8(2), which requires consideration of both the “kind” and the “circumstances" of the recipient of a statement. Certainly there are circumstances where a certain kind of recipient (e.g., a sophisticated international merchant represented by counsel in an important transaction) should be deemed a air notice by reference in an offer to standard terms available on an identified and easily-accessible website; the development of technology (and the culture that accompanies it) may well make those situations more common.21
The earlier suggestion that under Article 8(2) ambiguity in a statement is to be resolved against the party who formulated this statement has considerable significance in view of the wide disparities between the modes of expression and expectations in the different areas and types of enterprises that may meet in international trade. Although this interpretation of Article 8(2) may be disputed,22 it will at least be prudent for a party in formulating a proposal or other statement to take care that it not be givena different understanding by (Article 8(2)) “a reasonable person of the same kind as the other party.”

18The treatment of standard terms under the Convention is also explored in the commentaries on Articles 14 and 19, infra.
19Bundesgerichtshof, Germany, Oct. 31, 2001, CLOUT Case no. 445, English translation available at http://cisgw3.law.pace.edu/cases/011031g1.html. For further discussion of the application of Article 8 to the incorporation of standard terms into a contract see Martin Schmidt-Kessel, Art. 8 ¶¶55-65, in Schlechtriem & Schwenzer, CISG Commentary at 173-179; 2012 UNCITRAL CISG Case Digest Art. 8 ¶¶ 31-36 and decisions cited therein.
20Honnold, John O., UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION §107.1 at 160 (4th ed., edited and updated by Harry M. Flechtner Kluwer Law International, 2009).
21The author of the current edition of this Commentary is indebted to the discussion of the BGH decision in Martin Schmidt-Kessel, Art. 8 ¶ 57, in Schlechtriem & Schwenzer, CISG Commentary at 174-175.
22This interpretation of Article 8(2) apparently is not accepted by Farnsworth in B-B Commentary 99-100, §§2.4-2.5. In accord with the position taken in the test accompanying this note, however, see, e.g., Martin Schmidt-Kessel, Art. 8 ¶ 20, in Schlechtriem & Schwenzer, CISG Commentary at 155; Alberto Zuppi, Article 8 ¶ 24, in Kröll/Mistelis/Perales Viscasillas Commentary at 150.

Referring Principles

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

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