Standard Terms in UN-Contracts of Sale

Prof. Dr. Burghard Piltz

Rechtsanwalt in der Sozietät Brandi Dröge Pilz Heuer & Gronemeyer, Gütersloh; Curriculum Vitae.

Germany

1 INTRODUCTION

According to the intention of the user, pre-formulated rules in standard terms shall become part of future, yet to be concluded contracts. Since neither of the parties has the power to submit the other to unilaterally pre-formulated rules, standard terms in a private law contract will only be valid if they form part of the contents of the respective contract. Moreover, standard terms that have effectively been included in a contract and whose meaning is specified by interpretation are often subject to a special review of their contents (1).

The following remarks are focussed on standard terms in UN-Contracts of Sale. UN-Contracts of Sale are contracts that are governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG) (2).

2 INCLUSION OF STANDARD TERMS

The inclusion of standard terms in a private law contract raises legal questions concerning the formation of the contract. As the CISG explicitly governs the ‘formation of the contract of sale’ (Art. 4 CISG), the inclusion of standard terms into a UN-Contract of Sale must also, in principle, be judged according to the rules of the CISG. The CISG supercedes national law, such as § 305 (2) of the German Civil Code (BGB) or the rules of the inclusion of standard terms into contracts of sale concluded between business people that have been established by German Courts respectively. In legal literature, this position is advocated almost without exception (3). Courts have likewise taken this view repeatedly (4). However, while acknowledging the applicability of the CISG in general, there are also decisions that examine the inclusion of standard terms according to national, non-uniform law (5). Since these courts do not give reasons for their procedure, one actually cannot speak of a dissenting opinion. Instead one must assume that the decisive role of the CISG was overlooked.

The formation of the UN–Contract of Sale is governed by Arts. 14 et seq. of the CISG (6). In contrast to the German Civil Code (BGB) and other national legal regimes, the CISG does not provide for special rules for an agreement on standard terms. As a consequence, Arts. 14 et seq. principally also apply to the inclusion of standard terms in a UN-Contract of Sale (7). In the interest of a uniform application of the CISG as prescribed by Art. 7, and of the development of universally valid rules, preference is to be given to solving the problem of the inclusion of standard terms by a direct application of Arts. 14 et seq. instead of Art. 8 (8). Otherwise, individual points of view influenced by national law could come to the fore.

Articles 14 et seq., in contrast to German business rules, do not contain regulations that declare the mere reference to existing standard terms without their being handed over (9) sufficient, nor do they provide for other simplified techniques for the formation of the contract or for rules concerning the validity of standard terms formulated in a foreign language. However, the rules for the formation of the contract in Arts. 14 et seq. are not mandatory. Rather, derogations from these provisions as agreed on by the parties under Art. 6, as well as usages and practices established by the parties between themselves under Art. 9, take precedence over Arts. 14 et seq. and may lead to deviating results (10). For instance, the parties may stipulate in a distribution agreement or an other general contract that standard terms will be effectively agreed upon regardless of their language and of their being handed over at all or every time a contract of sale is concluded. Also, in a continuously practiced business relationship, for example, it will not be necessary to make the standard terms’ entire text known to the other party again and again when the parties have in tacit understanding carried out their dealings on the basis of these standard terms. In the case of a dispute, however, the user of the terms is obliged to prove that such a special agreement, usages or practices concerning the inclusion of standard terms into the individual contract of sale exist.

When special arrangements or circumstances regarding the agreement on a set of standard terms cannot be made out, their inclusion into the individual contract of sale is governed by Arts. 14 et seq.. Consequently, the standard terms must be included into the offer leading to the formation of the contract, i.e., into the contractual arrangements. Mere reference to standard terms without conveying them to the other party will regularly not suffice. Instead, from the contract formation mechanisms as laid out in Arts. 14 et seq., it follows that, for the effective inclusion of standard terms:

– standard terms, just as other contents of the contract, must be in the hand of the other party at the time of the declaration of acceptance of the offer;

– the user of standard terms must make clear to the other party before the declaration of acceptance that the terms form part of his/her offer;

– the other party must declare his or her acceptance being aware (which is to be assumed) of the inclusion of the standard terms as provided with and informed about by the offering party.

Standard terms will regularly not be effectively agreed upon when the parties enter into the contract  — especially via telephone, fax or email  — by quoting its individually negotiated contents but without handing over the standard terms, even if reference to their inclusion is made (11). While according to non-uniform German law, between business people the mere reference by the user to his/her standard terms suffices and the other party is responsible for inquiring as to their contents (responsibility of the other party to inquire) (12), in contrast, within the scope of the CISG  — and disregarding other arrangements, practices and usages  — the user of the standard terms is responsible for informing the other party of their contents (13). A rule that obliges the other party to inquire as to the standard terms’ content, and that in case of omission declares the terms effectively included into the contract, cannot be deduced from the CISG (14). In view of today’s means of telecommunication that practically enable the worldwide conveyance of even extensive texts without loss of time, the need for quick and smooth communication in business matters cannot be put forward as an argument for the responsibility of the other party to inquire as to parts of the contract’s contents, thereby deviating from the CISG’s fundamental principles (15).

The user of the standard terms does not meet his or her responsibility to inform the other party of the terms’ contents by depositing them with a chamber (16) or court (17), on the internet (18) or elsewhere where they can be looked into or are available on call. Instead, the user of the terms has to provide the other party with his or her standard terms on his or her own accord. It is not necessary, though, that the standard terms’ form is sent to the addressee together with the other parts of the offer, nor that they are physically attached to the core text of the contract, or that they are signed by the parties. Rather, it is sufficient when the user of the terms clearly and recognisably informs the other party (19) that the terms as a whole are to be part of the contract and, along with that, conveys the terms’ text to the other party without request (20).

Not in any case it is necessary, however, that the whole text of the standard terms is handed over. One can think of circumstances under which it may suffice when the user hands over only the core legal regulations of his or her standard terms. At the same time, however, he or she must make clear that the presented terms are not complete, and the remaining terms must be available on call and may not contain substantial shifts regarding the burdens of risk and costs. Terms not handed over may then become part of the contract as far as one can reasonably assume the consent of the other party. Such circumstances are imaginable when, on the one hand, the formation of contracts in a particular trade hardly allows for the handing over of the entire standard terms’ text (for instance, immediate confirmation of orders in order pads between present persons) and when, on the other hand, the use of standard terms is common in that trade. It has to be noted however that, in principle, standard terms just as other parts of a contract must be communicated to the other party by the time this party declares his or her acceptance of the offer. Only under special circumstances may one allow for an exception to this rule, when the exception is recognisable for and can reasonably be expected from the other party.

Besides conveying the standard terms’ text, the user has to make clear that the terms are to form part of the contract (21). This information about the terms’ inclusion into the contract must be made on occasion of the intended conclusion of the contract. Reference made at no particular time that does not specifically relate to the contract in question cannot be considered as a clear indication (22) of the terms’ intended use in the deal up for decision from the other party’s point of view. Both the information about and the handing over of the standard terms have to be completed before the acceptance of the offer is declared (23). Disregarding special arrangements, usages and practices, standard terms will not form part of the contract without the need of the other party’s opposition or similar declaration of disapproval where the information about these terms and/or the terms themselves reach the other party at a later point in time, especially only with the invoice (24).

It follows from the user’s responsibility to inform the other party about the standard terms that both the terms and the information about their inclusion must be in a language comprehensible to the addressee. In practice, standard terms in two languages are partly used (25). If the standard terms are formulated in a language not easily understandable for the other party, the user of the terms will generally not have met his responsibility of information (26). However, the standard terms do not always have to be formulated in the language of the addressee’s place of business. Instead, it is sufficient if the terms are formulated in the language of the negotiations (27). If a party makes use of a different language, the crucial point will be whether the other party has sufficient command of that language or not. However, one cannot assume that every buyer or seller in international business transactions speaks English (28) or even French, Spanish or German (29). As for the rest, it can of course follow from express or tacit agreements, from relevant usages in the meaning of Art. 9 CISG or from practices established between the parties, that the use of other languages suffices (30).

When clear information about the inclusion of the standard terms has been given and when the terms have been handed over, both in a comprehensible language and before the declaration of acceptance, and when, furthermore, the acceptance is not to be interpreted as a rejection of the offer according to Art. 8 CISG, the standard terms have been effectively included into the contract. Mere silence does not suffice (31). It is not necessary, though, that the other party has in fact read the terms (32) or even has specifically confirmed their effectiveness (33). Rather, yet subject to the circumstances, it is to be assumed that the other party has declared his or her acceptance being aware of the user’s reference to his or her standard terms that are at hand of the accepting party. Such an assumption is justified when reference to the standard terms has been made clearly and unequivocal. When the accepting party, however, makes reference to his or her own standard terms, he or she rejects the terms of the offering party and, for the time being, it remains open whose terms prevail. Otherwise, a specific declaration of consent with the standard terms is not necessary even in the case of specific form requirements due to a reservation made in accordance with Art. 96 CISG, or where the parties have agreed on specific forms for the conclusion of the contract under Art. 29 CISG.

Subject to special circumstances, the CISG sets up clearly stricter prerequisites for the inclusion of standard terms into a contract of sale between business people than national German law by imposing upon the user the responsibility to inform the other party of the standard terms (34). This strictness of the CISG results from the fact that the Convention does not provide for special simplified techniques for the inclusion of standard terms compared to other contents of the contract. The stricter rules for the inclusion of standard terms into a UN-Contract of Sale do not constitute an argument against the UN Sales Law, though. On the one hand, one must take into consideration that a theoretically possible contractual exclusion of the CISG in standard terms under Art. 6 requires that the standard terms themselves are effectively included into the contract in accordance with the rules of CISG (35). On the other hand, due to Art. 31(2) of the Introductory Act to the German Civil Code (EGBGB), the user-friendly rules for the insertion of standard terms governing German domestic business cannot unrestrictedly be applied to a foreign contracting party even if the parties have chosen the German Civil/Commercial Code (BGB/HGB) as the law governing the contract (36). The true reason for the stricter requirements regarding the inclusion of standard terms is, therefore, not rooted in the CISG but is a consequence of the international character of the transaction.

Moreover, the stricter solution of the CISG also makes it to a great extent unnecessary to distinguish between standard terms and other contractual arrangements. In addition, the CISG brings along the not to be underestimated advantage for the practice of export trade, that still harsher rules for the insertion of standard terms imposed by other national legal regimes (37) do not apply to UN-Contracts of Sale. Instead, the law of inclusion of standard terms into a contract of sale is unified by Arts. 14 et seq. CISG. This aspect is especially significant for the worldwide e-commerce business.

3 DIVERGING OR CONFLICTING STANDARD TERMS

If a reply by the offeree to an offer purports to be an acceptance but contains additions, limitations or other modifications which were not contained in the original offer, this does not necessarily mean that the contract has been concluded, nor does it necessarily mean that the offer has been rejected. In contrast to § 150 (2) BGB, the CISG differentiates according to whether or not the modifications contained in the reply materially alter the terms of the offer, see Art. 19 CISG. When distinguishing between a material and an immaterial alteration, it is irrelevant whether the modification is formulated individually or in standard terms. If the offeree introduces standard terms into the contract negotiations for the first time with his reply to the offer, this will generally, though not necessarily, be a material alteration to the offer, since standard terms typically contain aspects mentioned in Art. 19(3) CISG (38). The same reasoning applies if the offer included standard terms of the offeror and the offeree then tries to incorporate his general terms and conditions instead of those of the offeror (battle of forms).

Article 19(1) CISG regulates the consequences of a reply which is materially different from the offer. If standard terms collide, the application of Art. 19(1) CISG generally results in a counter-offer by the offeree, as the party to refer last to his or her general terms and conditions. The contract is not concluded until the recipient consents to the last counter-offer in a timely manner and without material alterations, specifically without continuing to insist on his own standard terms. As a result, the standard terms of the party who was the last one to insist on their inclusion will be part of the contract (the principle of the last word or last-shot-rule). The consent of the other party can be explicit, but in practice will usually follow from conduct implying its intent. Since conduct showing conclusion of contract, such as the performance of the contract, will generally occur much later than the exchange of offer and reply with material alterations, it must be taken into account whether the consent occurs in a timely manner  — that is, within the time limits of Art. 18(2) CISG. If not, the rules regarding late acceptance of an offer will apply (39). An implied acceptance is generally not possible if, in accordance with a declaration according to Art. 96 CISG or party agreement, particular formalities must be adhered to when replying to an offer (see Art. 29 CISG).

The solution to the problem of conflicting standard terms (40) is usually dealt with by referring to Art. 19 CISG, especially in countries other than Austria and Germany (41). The consent-dissent theory (or knock-out-rule) purported in German and Austrian law is principally not excluded by the CISG (42). It does require a considerable constructive effort, though, since the theory was rejected when the CISG was being discussed at the conference in Vienna (43). The application of the knock-out-rule conflicts with the goal of Art. 7 CISG to promote a uniform application of the rules of the CISG in contracting states and therefore has no chance of success internationally. On the other hand, there is no reason to distance oneself completely from the mechanism of Art. 19 CISG and to search for a solution in the general principles of the CISG (44), since the flexibility to find solutions that comes with this approach leads to unacceptable legal uncertainty in practice. Others solve the problem of conflicting general terms and conditions by distinguishing between the conclusion of contract and the contents of the contract (45) or between conflicting standard terms and those which are introduced only by one side (46).

Court decisions (47) do not show a clear line of authority (48). Yet it is definitely incorrect to say that the CISG does not solve the problem of conflicting general terms and conditions and that recourse must be had to national law in the specific case the Dutch first-shot-rule (49).

It is true that the problem of conflicting standard terms cannot in all cases be solved by strictly applying Art. 19 CISG. The CISG may generally be altered by agreement of the parties. This applies to Art. 19 CISG as well. Therefore, depending on the specific case, other conflicts of law rules may be applicable according to Arts. 6 and 9 CISG. In addition, statements made by the parties must always be interpreted against the background of Arts. 8 and 7 CISG (50). It is especially necessary to adapt the last-shot-rule of Art. 19 CISG if an acceptance cannot be implied because of time limits or other formalities, or because both parties perform the contract by mutual consent but continue to refer to their conflicting standard terms (51).

On the other hand, there is no reason to depart from the last-shot-rule of Art. 19, para. 1 CISG if the later conduct of one party in a timely and legally appropriate manner shows its consent with the offer of the other party to apply its standard terms (52). The discrepancy between the conflicting general terms and conditions is then removed by the conduct showing consent with one set of rules. The decisive factor is whether the recipient of the last shot, or last word, shows conduct implying consent. The terminology used for this solution, the last-shot-rule, is misleading in that it emphasises the action of the offeror instead of the offeree. In fact, it is a ‘consent-rule’.

It is not a valid objection to this solution to claim that it is not in line with the expectation of the parties (53); indeed, parties in practice attach great importance to maintaining the ‘last word’. Parties pursue this goal primarily to make sure that their standard terms prevail, which usually include a cost factor in favour of the party, and also to ensure that the terms of the contract are clear. This evaluation does not lose credibility even if the party now agreeing to the standard terms of the other party had originally attached its own general terms and conditions. If the party now showing consent does not want to be evaluated according to its current conduct, it must express this in an appropriate manner. This is all the more true if the party wants its conduct to be understood to the disadvantage of the other side, especially regarding the applicability of its general terms and conditions in contrast to the rules set forth in Arts. 19 and 18 CISG. The mere circumstance that the party referred to its own standard terms in its printed forms during earlier negotiations does not carry much weight (54). It is quite possible that the party now showing consent has given up wanting to use his or her own standard terms because he or she has realised that the other party continues to insist on its general terms and conditions and because of his or her general interest in the conclusion of the contract.

4 INTERPRETATION AND CONTROL OF CONTENTS

Some legal systems require that standard terms which have validly been included in a contract are subject to an additional control of contents (55). The control of contents aims to counterbalance any shift in favour of the party who has dictated its general terms and conditions, often the party with the stronger market position. Before standard terms can be evaluated according to the validity of their contents, they must be interpreted. Interpretation is not part of the control of contents, but aims to define each clause as precisely as possible. When interpreting clauses in standard terms of CISG-contracts, the CISG applies (56).

Following the interpretation of a clause, the control of contents examines the validity of the actual content of the clause (57). Since the validity of the contract or any of its provisions is not governed by the CISG, Art. 4 lit. a) CISG, the control of contents is governed exclusively by national law (58). The same is true for national provisions which  — such as § 305c BGB – do not see the contractual inclusion as sufficient for clauses which are surprising for the receiving party (59), or which – such as specific formalised requirements for the inclusion of standard terms  — are to be qualified as provisions concerning the validity of a contract (60).

Even if the control of contents follows national law – for example, in German law, § 307 BGB will apply in business dealing (61)  — the criteria for the control of contents cannot simply be those of non-harmonised national law. Instead it must be examined very carefully whether the national law in fact provides for the invalidity of a clause in standard terms if a provision of law has not been complied with, and whether the invalidity of the clause is meant to apply to international contracts as well. In particular, when controlling the contents of clauses in standard terms which modify provisions of the CISG, regard must be had to the principles that form the basis of the CISG (62).

5 SUMMARY

Issues that are relevant to the inclusion of standard terms into UN-Contracts of Sale:

– Language: the text of the standard terms as well as the notice that they are to apply should generally be formulated in the native language of the other party or in the language of the contract.

– Presentation: the complete text of the standard terms must be in the possession of the other party by the time that party effectively accepts the offer.

– Notice: the party who wants to use its standard terms must inform the other party of the appliance of the standard terms by the time the other party effectively accepts the offer.

– Consent: the acceptance of the offer to conclude a contract will generally include the implication that the offeree is aware of the notice about the standard terms. An explicit acceptance of the standard terms is not necessary.

– Conflicting standard terms: if standard terms collide, the last-shot-rule generally applies.

– Clarification: if the parties have made differing statements, they should both try to clarify the issue. In case of doubt, it will usually be helpful to check with the other party or to send a confirmation to the other party which clears up the issue.

Footnotes

(1) See, for example, Holger Müller and Hans-Hermann Otto, Allgemeine Geschäftsbedingungen im internationalen Wirtschaftsverkehr (Neuwied, Kriftel, Berlin, 1994) and Antonio Boggiano, International Standard Contracts (Dordrecht/Boston/London, 1992).

(2) On the sphere of application of the CISG, see Franco Ferrari, in: CENTRAL, Law and Practice of Export Trade (2001), at p. 53 et seq.

(3) Hans-Jörg Stadler, Allgemeine Geschäftsbedingungen im internationalen (Handel, 2003), at s. 97; Wolfgang Witz, in Wolfgang Witz, Hanns-Christian Salger and Manuel Lorenz, Internationales Einheitliches Kaufrecht, (Verlag Recht und Wirtschaft, 2000), at para 10 before Arts. 14 et seq.; Peter Schlechtriem in Peter Schlechtriem, Einheitliches UN-Kaufrecht (3rd ed., 2000), at para. 9 before Arts. 14 et seq.; Wolfgang Drasch, Einbeziehungs- und Inhaltskontrolle vorformulierter Geschäftsbedingungen im Anwendungsbereich des UN-Kaufrechts (Thesis Zürich, Schulthess: Zürich 1999), at pp. 3 ff; distinguishing Stephan Teklote, Die Einheitlichen Kaufgesetze und das deutsche AGB-Gesetz (Baden-Baden, 1994), at pp. 92 ff.

(4)BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff. and OLG Düsseldorf (German Regional Court of Appeal), NJW-RR 2001, at pp. 1562 ff as well as a number of judgments that assume the applicability of the CISG (see the decisions cited in the following footnotes).

(5) OLG Celle (German Regional Court of Appeal), IHR 2001, at pp. 107 et seq.; Rechtsbank Zutphen (Dutch Court), NIPR 1998/110; LG Duisburg (German Regional Court), RIW 1996, at pp. 774 ff; Rechtsbank Zwolle (Dutch Court), NIPR 1996/95.

(6) Franco Ferrari, in Schlechtriem, supra fn. 3, Art. 4 at para. 9.

(7) BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff; LG Trier (German Regional Court), IHR 2004, at pp. 115 ff, and Peter Schlechtriem, in Schlechtriem, supra fn. 3, at para. 9 before Art. 14.

(8) This position is taken by BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff and Peter Schlechtriem in Schlechtriem, supra fn. 3, at Art. 14 , para. 16.

(9) See BGH (German Federal Supreme Court), DB 1976, at pp. 1616 ff.

(10) See Hof?s-Hertogenbosch (Dutch Court), NIPR 1996/235 for the standard terms ‘Deutscher Garnkontrakt’.

(11) LG Trier (German Regional Court), IHR 2004, at pp. 115 ff.

(12) See BGH (German Federal Supreme Court), DB 1976, at pp. 1616 ff.

(13) Wolfgang Drasch, supra fn. 3, at pp. 5 ff and Stephan Teklote, supra fn. 3, at s. 114 ff, 138; furthermore Friedrich Graf von Westphalen, in Peter Schlechtriem, Einheitliches Kaufrecht und nationales Obligationenrecht (Baden-Baden, 1987), at p. 56 on the parallel problem regarding the Convention relating to a Uniform Law on the International Sale of Goods (The Hague, July 1, 1964).

(14) Explicitly BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff.

(15) Cf. Hans-Jörg Stadler, supra fn. 3, at s. 94 ff.

(16) Rechtsbank van Koophandel te Hasselt (Belgian Court), decision of 12/2/1998 and decision of 4/28/1999, both to be found at http://www.cisg.law.pace.edu/; cf. Rechtsbank Arnhem (Dutch Court), NIPR 1999/251.

(17) Hof Arnhem (Dutch Court), NIPR 1999/245.

(18) Verena Ventsch and Peter Kluth, ‘UN-Kaufrecht: Keine Einbeziehung von AGB durch Abrufmöglichkeit im Internet’, IHR 5/2003, at pp. 224 ff; cf. Andreas Stiegele and Rudolf Halter, ‘Einbeziehung von Allgemeinen Geschäftsbedingungen im Rahmen des UN-Kaufrechts –Zugänglichmachung im Internet’, IHR 4/2003, at p. 169 and Hans-Jörg Stadler, supra fn. 3, at p. 97, fn. 176.

(19) OLG Düsseldorf (German Regional Court of Appeal), IHR 2004, at pp. 108 ff, 111; BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff; Cour d`Appel de Paris (French Court), TranspR-IHR 1999, at p. 7; Hof van Beroep Antwerpen (Belgian Court), decision of 11/4/1998, available at http://www.cisg.law.pace.edu/; AG Nordhorn (German Local Court), decision of 6/14/1994, available at http://www.cisg.law.pace.edu/ and Ulrich Magnus in Julius von Staudinger, Wiener UN-Kaufrecht (Revised Edition, Sellier, 1999), at Art. 14, para. 41.

(20) Supreme Court of British Columbia, decision of 8/21/2003, available at http://www.cisg.law.pace.edu/; BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff; Rechtsbank Rotterdam (Dutch Court), NIPR 2002/111; OLG Düsseldorf (German Regional Court of Appeals), NJW-RR 2001, at pp. 1562 ff; Rechtsbank Arnhem (Dutch Court), decision of 6/22/2000, NIPR 2000/289; Hof van Beroep Antwerpen (Belgian Court), decision of 11/4/1998, available at http://www.cisg.law.pace.edu/; ÖstOGH (Austrian Court), ZfRV 1996, at pp. 248 ff, and Verena Ventsch and Peter Kluth, ‘Die Einbeziehung von Allgemeinen Geschäftsbedingungen im Rahmen des UN-Kaufrechts’ IHR 2/2003, at pp. 61, 62 ff; Wolfgang Witz in Witz, Salger and Lorenz, supra fn. 3, at para 12 before Arts. 14 ff; Magnus in Staudinger, supra fn. 19, at Art. 14, para. 41 and Astrid Frense, Grenzen der formularmäßiger Freizeichnung im Einheitlichen Kaufrecht (Vienna, 1992), at p. 5; less strict Martin Schmidt-Kessel, NJW 2002, at pp. 3444 ff; Hans Theodor Soergel, Alexander Lüderitz and Anja Fenge, Bürgerliches Gesetzbuch, (Volume 13, CISG, 2000), at Art. 14, para. 10.

(21) See supra fn. 19 and furthermore Peter Schlechtriem in Schlechtriem, supra fn. 3, at Art. 14, para. 16.

(22) See BGH, IHR 2002, at pp. 14 ff.

(23) Rechtsbank van Koophandel Ieper (Belgian Court), decision of 2/18/2002, available at http://www.cisg.law.pace.edu/; Rechtsbank van Koophandel te Veurne (Belgian Court), decision of 4/25/2001, available at http://www.cisg.law.pace.edu/; Rechtsbank Arnhem (Dutch Court), decision of 10/12/2000, NIPR 2001/20.

(24) LG Trier (German Regional Court), IHR 2004, at pp. 115 ff.; Hof?s-Hertogenbosch (Dutch Court), NIPR 2003/192; Hof Arnhem (Dutch Court), NIPR 2001/14; Hof Rotterdam (Dutch Court), NIPR 2000/14; Rechtsbank van Koophandel te Hasselt (Belgian Court), decision of 6/2/1999, available at http://www.cisg.law.pace.edu/.

(25) See AG Nordhorn (German Local Court), decision of 6/14/1994, available at http://www.cisg.law.pace.edu/.

(26) See OLG Düsseldorf (German Regional Court of Appeal), IHR 2004, at p. 112; Rechtsbank van Koophandel te Mechelen (Belgian Court), decision of 1/18/2002, available at http://www.law.kuleuven.ac.be/int/tradelaw; Cour d`Appel de Colmar (French Court), IHR 2003, at p. 146 and Rechtsbank Arnhem (Dutch Court), NIPR 2000/289.

(27) LG Memmingen (German Region Court), decision of 9/13/2001 (2H O 382/99), unpublished, and AG Kehl (German Local Court), RIW 1996, at pp. 957 ff; furthermore Magnus in Staudinger, supra fn. 19, at Art. 14, para. 41; more strict, see Wolfgang Witz in Witz, Salger and Lorenz, supra fn. 3, at Art. 8, para. 16.

(28) Also Verena Ventsch and Peter Kluth, supra fn. 20, at p. 65 and Wilhelm, UN-Kaufrecht (1993), at p. 10

(29) Clearly more generous is ÖstOGH (Austrian Court), decision of 12/17/2003, available at http://www.cisg.at; Soergel, Lüderitz and Fenge, supra fn. 20, at Art. 14, para. 10 and H. Asam in Jahrbuch für Italienisches Recht (Volume 3, 1990), at p. 19.

(30) See ÖstOGH (Austrian Court), decision of 12/17/2003, available at http://www.cisg.at.

(31) Magnus in Staudinger, supra fn. 19, at Art. 18, para. 13.

(32) See the misleading decision of Rechtsbank van Koophandel te Veurne (Belgian Court), decision of 4/25/2001, and Rechtsbank van Koophandel te Hasselt (Belgian Court), decision of 4/28/1999, both available at http://www.cisg.law.pace.edu/.

(33) Ambigous Witz in Witz, Salger and Lorenz, supra fn. 3, at Art. 14 ff.

(34) Expressly stated by BGH (German Federal Supreme Court), IHR 2002, at pp. 14 ff and OLG Düsseldorf (German Regional Court of Appeals), NJW-RR 2001, at pp. 1562 ff.

(35) See Soergel, Lüderitz and Fenge, supra fn. 20, at Art. 6, para. 1; Magnus in: Staudinger, supra fn. 19,at Art. 6, para. 11; Ferrari in Schlechtriem, supra fn 3, at Art. 6, para. 13; Sieg, RIW 1997, at pp. 811 ff; for a different opinion see Ingo Saenger, in Heinz Georg Bamberger and Herbert Roth, Kommentar zum BGB (Beck, Volume 3, 2003), at Art. 6, para. 2.

(36) See OLG Düsseldorf (German Regional Court of Appeals), IHR 2004, at pp. 108 ff, 112; OLG Karsruhe (German Regional Court of Appeals), NJW-RR 1993, at pp. 567 ff and Gerhard Kegel and Klaus Schurig, Internationales Privatrecht, (9th ed., Beck, 2004), at p. 614.

(37) See country report to be found at Müller/Otto, Allgemeine Geschäftsbedingungen im internationalen Wirtschaftsverkehr, 1994, at pp. 129 ff and Dieter Martiny in Christoph Reithmann and Dieter Martiny, Internationales Vertragsrecht (6th ed., 2004), at para. 227.

(38) Rolf Herber and Beate Czerwenka, Internationales Kaufrecht (Beck, München, 1991), at Art. 19, para. 18; more restrictive, see Peter Schlechtriem in Schlechtriem, supra fn. 3, at Art. 19, para 9.

(39) See Peter Schlechtriem in Schlechtriem, supra fn. 3, at Art. 21 para 2.

(40) For different solutions see Michael P. van Alstine, Fehlender Konsens beim Vertragsabschluss nach dem einheitlichen UN-Kaufrecht (Nomos, 1995), at pp. 209 ff. (41) See Herbert Bernstein and Joseph Lookofsky, Understanding the CISG in Europe (Deventer, 1997), at pp. 61 ff; Hans-Jörg Stadler, supra fn. 3, at p. 98; Schlechtriem, Internationales UN-Kaufrecht, 2003, at para. 92; Werner Junge in Schlechtriem, supra fn. 3, at Art. 8, para. 11; Andre Janssen, AW-Prax 2000, at pp. 343 ff; Wolgang Drasch, supra fn. 3, at pp. 18 ff; Anton K. Schnyder and Ralf Michael Straub in Heinrich Honsell, Kommentar zum UN-Kaufrecht (1996), at Art. 19, para. 37; Albert Kritzer, Guide to practical applications of the United Nations Conventions on Contracts for the International Sale of Goods (Kluwer, Boston, 1994), at pp. 173 ff, 176; Gritli Ryffel, Die Schadensersatzhaftung des Verkäufers nach dem Wiener Übereinkommen über internationale Warenkaufverträge vom 11. April 1980 (Bern, 1992), at p. 112; Francois Dessemontet, Les contrats de vente internationale de marchandises (Cedidac, Lausanne, 1991), at pp. 54 ff; Rolf Herber and Beate Czerwenka, supra fn. 38, at Art. 19, para. 18; Martin Karollus, UN-Kaufrecht (Springer, 1991), at pp. 70 ff; Gert Reinhart, UN-Kaufrecht (C.F. Müller, Heidelberg, 1991), at Art. 19, para. 8 and Fritz Enderlein, Dietrich Maskow and Heinz Strohbach, Internationales Kaufrecht (1991), at Art. 19, para. 10; also see Karl H. Neumayer, Festschrift Giger, (Bern, 1989), at p. 524.

(42) In favor: Ventsch and Kluth, supra fn. 20, at p. 64; Soergel, Lüderitz and Fenge, supra fn. 20, at Art. 19, para. 5; Wolfgang Witz in Witz, Salger and Lorenz, supra fn. 3, at Art. 19, para. 16; Wilhelm-Albrecht Achilles, Kommentar zum UN-Kaufrechtsübereinkommen (CISG) (Kriftel, Luchterhand, 2000), at Art. 19, para. 5; Magnus in: Staudinger, supra fn. 19, at Art. 19, para. 24; and Wilhelm, supra fn. 28, at p. 11.

(43) Moccia, Fordham International Law Journal 1989/90, p. 660 et seq.; and Anton K. Schnyder and Ralf Michael Straub in Honsell, supra fn 41, at Art. 19, para. 36.

(44) See Christine Moccia, ‘United Nations Convention on Contracts for the International Sale of Goods and the “Battle of the Forms”’, 13 Fordham Int'l L.J. (1989-90) 649, at pp. 674 ff.

(45) Peter Schlechtriem, in Transport- und Vertriebsrecht 2000, Festgabe für Prof. Herber (Commemorative volume for Professor Herber) (Luchterhand, 1999), at p. 44 ff and van Alstine, supra fn. 40, at pp. 217 ff.

(46) Teklote, supra fn. 3, p. 155

(47) BGH (German Federal Supreme Court), IHR 2002, at pp. 16 ff; see also AG Kehl (German Local Court), NJW-RR 1996, at pp. 565 ff.

(48) Ventsch and Kluth, supra fn. 20, p. 64 and Edoardo Ferrante, ULR 2003, at pp. 975 ff; see also the different conclusions drawn from court decisions by, on the one hand, Pilar Perales Viscasillas, ‘Battle of Forms and the Burden of Proof: An Analysis of the BGH 9 January 2002’, (2002) 6 VJ 217, and, on the other hand, Ulrich Magnus, ZEuP 2002, at pp. 523 ff.

(49) See Rechtsbank Rotterdam (Dutch Court), NIPR 2001/147; as here Sebastian Kühl and Kai-Michael Hingst, in Transport- und Vertriebsrecht 2000, Festgabe für Prof. Herber, (Luchterhand, 1999), at p. 55 and Stefan Kröll and Rudolf Hennecke, RIW 2001, at p. 740.

(50) Similarly, Anne-Kathrin Schluchter, Die Gültigkeit von Kaufverträgen unter dem UN-Kaufrecht, (Thesis Freiburg 1995, Baden-Baden: Nomos. Universitätsschriften Recht, Vol. 213, 1996)) at pp. 125 ff.

(51) See Ventsch and Kluth, supra fn. 20, at pp. 61 ff, 63; Drasch, supra fn. 3, at pp. 24 ff.

(52) See also Teklote, supra fn. 3, at p. 155.

(53) But see Kröll and Hennecke, supra fn. 49, at pp. 739 ff.

(54) But see Teklote, supra fn. 3, at pp. 153 ff.

(55) See supra fn. 1.

(56) Staudinger and Magnus, supra fn. 19, at Art. 8, para. 18.

(57) See Graf von Westphalen, in Schlechtriem, supra fn. 13, at pp. 65 ff.

(58) LG Frankenthal (German Regional Court), decision of 4/17/1997, available at http://www.cisg-online.ch; see also Ferrari, in Schlechtriem, supra fn. 3, at Art. 4, para. 20; Stoll in Schlechtriem, supra fn. 3, at Art. 79, para. 63; Kühl and Hingst, supra fn. 49, at pp. 58 ff and Peter Schlechtriem, in Eugene Bucher (Ed.), Wiener Kaufrecht (Bern, 1991), at pp. 110 ff.

(59) Schlechtriem in Schlechtriem, supra fn. 3, at para. 9 before Arts. 14 ff. and Frense, supra fn. 20, at p. 88; cf Drasch, supra fn. 3, at p. 11 ff.

(60) Warning against a ‘hidden control of contents’, Frense, supra fn. 20, at p. 45; against applying Art. 4 lit. a) CISG to the form requirements of Art. 1341 (2) of the Italian Codice Civile: Asam, supra fn. 29, at pp. 20, 24; for a more generous approach, see Witz in Witz, Salger and Lorenz, supra fn. 3, at para. 11 before Arts. 14 ff and Stoll Schlechtriem, supra fn. 3, Art. 79, para. 63.

(61) For a reduced application, which only protects the core issues of the CISG, Frense, supra fn. 20 , at pp. 92 ff and Eugene Bucher in Bucher (Ed.), supra fn 58, at p. 47; for a more generous approach, see Schluchter, supra fn. 50, at p. 198

(62) Ferrari in Schlechtriem, supra fn. 3, at Art. 4, para. 20; Huber in Schlechtriem, supra fn. 3, at Art. 45, para. 70 and Drasch, supra fn. 3, at pp. 36 ff; for a partially different view see Teklote, supra fn. 3, at pp. 192 ff.