7. Standard Terms
The CISG does not expressly address the issue of incorporation of standard terms into an offer. Yet, the general provisions of Art. 14 et seq. and Art. 8 provide for an adequate set of tools to deal with all issues arising in this regard. Notably however, the Convention only covers questions of incorporation and not questions of content control of specific standard terms which in general are deemed issues of validity. Under Art. 4 sentence 2(a) questions of validity are governed by domestic law.
Under the regime of Art. 14 and Art. 8, standard terms become part of the offer if two conditions are met. First, the offeror has to make reference to the standard terms in the offer. Such reference has to be made in a way that a reasonable third person in terms of Art. 8(2) is able to understand it. Secondly, the offeree has to become aware of the standard terms. Where the offeree has actual knowledge of the contents of the standard terms they become part of the offer without any issue. In most cases, however, the offeree does not know these contents. Whereas in some domestic legal systems, e.g. in Germany, it is sufficient if the offeree has the mere possibility to become aware of the standard terms’ content, under the CISG the offeror has to actively make the standard terms available to the other party. This can be achieved either by sending the text of the standard terms to the other party or by making it otherwise available, e.g. by directly handing over a copy of the terms or in cases in which the contract was concluded at least also via the internet by providing a link to a printable version of the terms. In cases in which the contract was concluded entirely via offline forms of communication it is in general not sufficient that the standard terms are available online.
Additionally, in specific situations standard terms might also become part of the offer if their incorporation is a practice established between the parties in terms of Art. 8(3) and Art. 9(1) or either their incorporation or their content amounts to an international trade usage under Art. 9(3). The latter might be the case with regard to certain Incoterms. Consequently, in such a case a party cannot argue that the contents of an Incoterm referred to in a contract was not made available to it.
The offeree has to be made aware of the standard terms before the offer reaches it. Otherwise the acceptance in reply to the offer does not extend to the standard terms and consequently the contract is concluded without the standard terms and the respective reference is merely an offer to amend the contract by including the standard terms that has to be accepted separately.