Q 14-2 a) What other instances can be held as being ‘suﬃciently deﬁnite’ to constitute an oﬀer under the CISG? b) What about under § 2–204 UCC? Q 14-3 An oﬀer will not be valid simply by virtue of Art. 14 CISG alone. What matters under domestic law will also need to be taken into consideration in determining whether or not a valid oﬀer has been made? 2. Intention to be bound For a proposal to constitute an oﬀer for the purposes of the CISG, it must not only be suﬃciently deﬁnite, but also exhibit an intention on behalf of the oﬀeror to be bound. Whether an intention to be bound exists is to be interpreted on the facts of the individual cases by recourse to the provisions of Art. 8 CISG. 14-2 : US Dist Ct (N D IL) (USA), 7 December 1999, CISG-online 439

doi:10.4324/9780203945445-67

Chapter

Q 14-2 a) What other instances can be held as being ‘suﬃciently deﬁnite’ to constitute an oﬀer under the CISG? b) What about under § 2–204 UCC? Q 14-3 An oﬀer will not be valid simply by virtue of Art. 14 CISG alone. What matters under domestic law will also need to be taken into consideration in determining whether or not a valid oﬀer has been made? 2. Intention to be bound For a proposal to constitute an oﬀer for the purposes of the CISG, it must not only be suﬃciently deﬁnite, but also exhibit an intention on behalf of the oﬀeror to be bound. Whether an intention to be bound exists is to be interpreted on the facts of the individual cases by recourse to the provisions of Art. 8 CISG. 14-2

Chapter

Q 14-2 a) What other instances can be held as being ‘suﬃciently deﬁnite’ to constitute an oﬀer under the CISG? b) What about under § 2–204 UCC? Q 14-3 An oﬀer will not be valid simply by virtue of Art. 14 CISG alone. What matters under domestic law will also need to be taken into consideration in determining whether or not a valid oﬀer has been made? 2. Intention to be bound For a proposal to constitute an oﬀer for the purposes of the CISG, it must not only be suﬃciently deﬁnite, but also exhibit an intention on behalf of the oﬀeror to be bound. Whether an intention to be bound exists is to be interpreted on the facts of the individual cases by recourse to the provisions of Art. 8 CISG. 14-2

ABSTRACT

On February 19 Salzgitter sent its pro forma order conﬁrmations to Magellan. But the general terms and conditions that were attached to those conﬁrmations differed in some respects from those that had been attached to Magellan’s purchase orders, mainly with respect to vessel loading conditions, dispute resolution and choice of law. Contemplating an ongoing business relationship, Magellan and Salzgitter continued to negotiate in an effort to resolve the remaining conﬂicts between their respective forms. While those ﬁne-tuning negotiations were under way, Salzgitter began to press Magellan to open its LC for the transaction in Salzgitter’s favor. On March 4 Magellan sent Salzgitter a draft LC for review. Salzgitter wrote back on March 8 proposing minor amendments to the LC and stating that “all other terms are acceptable.” Although Magellan preferred to wait until all of the minor details (the remaining conﬂicting terms) were ironed out before issuing the LC, Salzgitter continued to press for its immediate issuance. On March 22 Salzgitter sent amended order conﬁrmations to Magellan. Riess visited Arthur four days later on March 26 and threatened to cancel the steel orders if Magellan did not open the LC in Salzgitter’s favor that day. They then came to agreement as to the remaining contractual issues. Accordingly, relying on Riess’s assurances that all remaining details of the deal were settled, Art.hur had the $1.2 million LC issued later that same day. [. . .]

[Judgment] Under Convention Art. 14(1) a “proposal for concluding a contract addressed to one or more speciﬁc persons constitutes an offer if it is sufﬁciently deﬁnite and indicates the intention of the offeror to be bound in case of acceptance.” So, if the indications of the proposer are sufﬁciently deﬁnite and justify the addressee in understanding that its acceptance will form a contract, the proposal constitutes an offer (id. Art. 8(2)). For that purpose “[a] proposal is sufﬁciently deﬁnite if it indicates the goods and expressly or implicitly makes provision for determining the quantity and the price” (id. Art. 14(1)). In this instance Magellan alleges that it sent purchase orders to Salzgitter on February 15 that contained the material terms upon which the parties had agreed. Those terms included identiﬁcation of the goods, quantity and price. Certainly an offer could be found consistently with those facts. [. . .]

Oberster Gerichtshof (Austria), 20 March 1997,

CISG-online 26956

[Facts] An Austrian company (‘the buyer’) and a Russian company (‘the seller’) entered into negotiations for the supply of chemical products, during which the quality of the goods to supply was subject to controversy. Finally the seller sent an offer to the buyer indicating the quantity of the goods, the possible variation in quantity within a speciﬁed range (depending on the

capacity of the chosen cargo) and the price, as well as the quality which the seller erroneously thought to be the one requested by the buyer. The buyer, in its reply, stated that the possible variation in quantity should be broader than the one contained in the seller’s offer. However, the buyer did not object to the speciﬁcation of the quality of the products. Later on, the buyer sent a second fax indicating a different price and a different quality. Since the parties could not reach an agreement with respect to the quality of the products, the buyer brought an action against the seller claiming inter alia damages. The issues raised in this case related to whether a contract had been validly concluded under CISG, applicable according to Art. 1(1)(a) CISG.