C. Part. II of the Convention - Formation of the Contract

The second part of the Convention deals with questions of the formation of the contract. The underlying concept, the CISG is based on, is the conclusion of a bilateral contract by way of offer and acceptance. This concept is of course a simplified one. Usually, contracts are concluded by way of negotiations at the end of which a contract document stands which is signed by the parties. But even in such a case it is generally possible to trace back the steps taken during the negotiations and solve upcoming issues within the mechanics provided for in the CISG. This is also true for complex contracts involving more than two parties. 

However, also the provisions on contract formation are subject to party autonomy pursuant to Art. 6. Consequently, the parties in principle are free to reach their meeting of minds in a way that suits their needs. Yet, due to the complications involved with deviating from the system provided by the CISG, an intention to do so should only be assumed were no adequate solution can be found within the boundaries of the CISG.

When assessing a contract, it is important to draw a clear line between questions of formation on the one hand that are governed by the CISG and questions of validity on the other hand that are governed by domestic law according to Art. 4(2)(a). Right on this line are questions of dissent. The notion of dissent deals with statements of parties that are intended to form a contract but do not match in terms of content. Dissent is not expressly regulated by the CISG. Yet, the question whether the parties want to be bound to an agreement that is based of statements that are partly matching and partly dissenting, i.e. so called partial dissent, is governed by the CISG. Only where this analysis reveals that there is no such intention to be bound, the question of validity under domestic law arises.

Last modified: Thursday, 22 October 2015, 5:01 PM