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Under the United Nations Convention on Contracts for the International Sale of Goods, a proposal that designates the goods and determines or provides expressly or implicitly for the determination of quantity and price is sufficiently determined. However, it is discussed that in practice, a proposal consisting solely of these conditions is often not able to lead to a valid offer, when the time or place of delivery or even the type of packaging may be relevant to the article contract. 2.11.This case should be compared to the American Golden Valley Grape Juice Case43, in which the offer was sent as an attachment to an email. The email also included an attachment with a warranty and one with standard conditions. The offer did not explicitly refer to the inclusion of the terms and conditions, but the court ruled that the supplier`s clear intent was that all attachments were relevant to the agreement to be negotiated. The buyer could not simply choose between the documents. The court notes that these courts have ruled that the CISG does not apply to distribution agreements because they only “create a framework for the future sale of goods”. A contract of sale under the United Nations Convention on Contracts for the International Sale of Goods must indicate the quantity (and expressly or implicitly the price) of the goods to be changed hands; Distribution agreements generally do not. The second sentence of the above-mentioned article constitutes a presumption of sufficient certainty of a proposal.
Consequently, a proposal which identifies the goods and which expressly or implicitly determines or provides for the determination of quantity and price is sufficiently precise. It is recognized that the description of the goods does not necessarily have to contain great details. So that a simple indication of the goods and their quantities is sufficient, provided that this indication can at least be interpreted.2 However, it is disputed that in practice a proposal consisting solely of these terms is often not able to make a valid offer, where the time or place of delivery or even the type of packaging may be relevant to the agreement on the object.3 However, it is assumed that: that a tenderer generally refrains from expressing the intention to be bound by its proposal where there are certain other substantive negotiations which are not yet stated and, conversely, if the objective pursued considers that certain essential points are absent from a particular proposal, it must nevertheless raise them within the meaning of Article 19 of the Convention(4). accepted herein. In this context, where appropriate, explicit agreements between the parties, . B such as a framework agreement, commercial practices or previous commercial relations between the parties, shall be duly taken into account in assessing whether a proposal is not sufficiently precise because it does not refer to certain additional points that have yet to be agreed between the parties. such as.B. the place of delivery.5 In this respect, Articles 8 and 9 play an essential role in assessing whether the parties have agreed on the essential terms of the contract. 3.1.
If the clauses are attached to a document used in connection with the conclusion of the contract or are printed on the back of that document; 3.2. If the conditions are available to the parties at the time of negotiation of the contract in the presence of each other; 3.3. If, in electronic communications, the terms and conditions are made available to that party and can be consulted by that party and are accessible to that party at the time of negotiation of the contract; 3.4. If the parties have already concluded agreements subject to the same general conditions. A General1. It is a common feature of the modern mass production economy that contracts for the manufacture, distribution and supply of goods and services are subject to the general terms and conditions of one of the parties. [3] The General Terms and Conditions are provisions prepared in advance for general and repeated use by one party and actually used without negotiation with the other party. [4] The content of the contract may be contained not only in the part specifically negotiated and agreed by the parties, but also by reference to the general terms and conditions used by one of the parties, framework agreements, industry model contracts or a combination of the above.2.
One of the perennial problems regarding terms and conditions in most jurisdictions is whether clauses that are not normally the subject of specific negotiations have been included in the agreement between the parties. [6] 3. The UNCITRAL Working Group considered the inclusion of model conditions, but decided that the provisions on the interpretation of the content of the contract were sufficient. [7] Most commentators and courts agree that the inclusion of terms and conditions must therefore be dealt with in accordance with the provisions on the conclusion of contracts. [8] National provisions and rules on standard conditions can only be applied to standard conditions if they concern questions of validity. [9] 4. If the parties have expressly agreed to the inclusion of the Terms and Conditions, no problem arises, but it is not uncommon for the inclusion of the Terms and Conditions to be made by a mere reference in an oral or written notice to the inclusion of these Terms without a clear and express agreement on the inclusion. [10] Sometimes the text of the terms and conditions is attached to the main agreement, for example on the back of .B a purchase order[11], but often the contract contains only an incorporation clause without accompanying text. [12] The question then arises as to whether or not there is a valid basis.5.
The essential feature of the general terms and conditions is that they were not negotiated individually between the parties. It doesn`t matter how standard conditions are presented, who wrote them down, or whether they are short or extended. Standard conditions may be established specifically for one of the parties or by an interbranch organisation for general use in commerce. [13] 6. Although there are many different definitions of model or negotiated clauses,[14] the definition in Article 2.1.19 of the UNIDROIT Principles of International Commercial Contracts (“UNIDROIT Principles”) is a good example of such a definition. [15] The main feature of these clauses is that they are not negotiated between the parties. B Specific remarks1. Rule 1. The inclusion of standard conditions in the United Nations Convention on Contracts for the International Sale of Goods is determined by the rules on the conclusion and interpretation of contracts. Basic principles of drafting contracts1.1. The United Nations Convention on Contracts for the International Sale of Goods does not explicitly address the requirements for the inclusion of standard conditions, and courts must therefore rely on the interpretation of the articles dealing with the formation and interpretation of the contract in general.
[16] The issue is primarily governed by article 8(2), which states that a party that is not aware of the intention that the other party had with a particular statement does not know that that statement is to be interpreted according to the interpretation that a reasonable person of the same nature as the other party would have had in the same circumstances. [17]1.2. The United Nations Convention on Contracts for the International Sale of Goods deals with the conclusion of the contract in Part II, specifically for our purposes in Articles 14, 18, 19 and 23. [18]1.3. However, it is also necessary to take into account articles 8 and 9, which deal with the interpretation of statements made by the parties, since the statements and conduct of the parties form the basis for the offer and the acceptance and use between the parties. [19]1.4. Whether or not clauses are included in the contract is a matter that falls directly within the scope of the United Nations Convention on Contracts for the International Sale of Goods. [20]1.5. The statements and conduct of the parties which led to the conclusion of the contract and including the conclusion of the contract shall be interpreted in the light of Articles 8 and 9 […].
