イギリス・コモンウェルス法
Formation of Contracts
高橋宏司
1. Revocation of offer
revocation cf. withdrawal
CISG Article 15
(1) An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches
the offeree before or at the same time as the offer.
A (11 Nov): Offering until 20 November 100 tons of soybean oil $550 per ton ...
A (15 Nov): Now the market price here suddenly increased to $600 per ton due
to the manufacture’s strike. Therefore, we regret we have to give up this
business.
B (16 Nov): We accept your original price $550. Please send your contract sheet
immediately.
Dickinson v Dodds (1876) 2 Ch D 463
The defendant offered to sell a house to the claimant for £800, the offer to be left
open until Friday. On Thursday the defendant sold the house to a third party and
the claimant was so informed. Nevertheless the claimant sent the defendant his
letter of acceptance on the Friday.
It was held that no contract had been concluded between the parties because
the offer had been withdrawn before it was accepted even though the offer was
expressed as open until Friday.
UNIDROIT Principles of International Commercial Contracts 2004
ARTICLE 2.1.4 (Revocation of offer)
(1) Until a contract is concluded an offer may be revoked if the revocation
reaches the offeree before it has dispatched an acceptance.
(2) However, an offer cannot be revoked
(a) if it indicates, whether by stating a fixed time for acceptance or otherwise,
that it is irrevocable; or
(b) if it was reasonable for the offeree to rely on the offer as being irrevocable
and the offeree has acted in reliance on the offer.
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2. Taking effect of acceptance
On Friday 5 March Buyer sent a fax to Seller offering to buy 1,000 tons of sugar
at $500 per ton, this being the current market price. The fax was received in
Seller's office almost instantaneously at 5.00 p.m. Since the fax operator had
gone home for the weekend, Seller posted a letter in the last post on Friday,
accepting the offer. Although this was sent first class, it did not reach Buyer until
2.30 p.m. on Monday 8 March. Meanwhile, the market price of sugar had fallen.
At 9.30 a.m. on 8 March, Buyer sent a further fax to Seller, revoking his offer to
buy the sugar. This arrived in Seller's office almost instantaneously but, since
Seller was visiting customers, he did not read it until 3.00 p.m. on 8 March. Has
a contract been concluded between Seller and Buyer?
Acceptance takes effect when the letter of acceptance is posted by the offeree –
postal rule: Adams v Lindsell (1818) 1 B & Ald 681
In Henthorn v. Fraser [1892] 2 Ch 27, it was held that the postal rule only
applies where it is reasonable to use the post.
- This will normally be the case where the offer itself is made by post.
- If, on the other hand, the offer is made by an instantaneous mode of
communication such as telex, telephone, fax and e-mail, it will not be
reasonable to accept by post, unless immediate acceptance is not
contemplated.
Thomas v BPE Solicitors [2010] EWHC 306
86. The general rule is that the acceptance of an offer is not effective until
communicated to the offeror. The “postal rule” is an anomalous exception to the
general rule, which is limited to its particular circumstances. … in my view the
same principle applies to communication by email, at least where the parties are
conducting the matter by email ….
3. Battle of forms
Warranty - Seller makes no warranty as to the fitness of the goods for any
particular purpose.
Warranty - Seller warrants that the goods shall be fit for the purposes intended
by Buyer.
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a.
Approaches
i.
The traditional “mirror image” rule as applied in the majority
decision in Butler v Ex-Cell-O Corporation (England) Ltd [1979] 1
WLR 401
A purported acceptance which does not accept all the terms of the offer is not in
fact a true acceptance but is a counter-offer which `kills off' the original offer and
amounts to a new offer which can in turn be accepted by the other party.
On 2 November X writes to Y offering to sell him 100 tons of soybean oil for $200
per ton. Y receives the letter the following day and immediately posts a reply
asking: "would you accept $180?" X then posts his reply: "Regret cannot reduce
price". Y receives this and immediately sends a further letter: "Your original
terms of 2 November agreed". X has now found another customer who is willing
to pay $250 per ton. Is he contractually bound to sell to Y?
Last-shot rule:
B sends an order for a second hand printer to S, stating that it is only prepared
to contract on its own standard terms. S then sends a second hand printer and
an invoice, stating that it only ever trades on its standard terms. B then responds
by sending payment of the invoiced amount.
1) Example 1
A: Offering 100 tons of soybean oil shipped from Southampton in October.
B: Accepted provided shipment by 15 Oct.
2) Example 2
A: Offering 100 tons of soybean oil shipped from Southampton in October.
B: Accepted. If possible, please expedite shipment by 15 Oct.
3) Example 3
A: Offering 100 tons of soybean oil $500 per ton ....
B: Accepted only 70 tons.
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ii.
The approach preferred by Lord Denning in Butler
`… better way is to look at all the documents passing between the parties and
glean from them, or from the conduct of the parties, whether they have reached
agreement on all material points, even though there may be differences
between the forms and conditions printed on the back of them.'
‘There is a concluded contract but the forms vary. If … they are mutually
contradictory … then the conflicting terms may have to be scrapped and
replaced by a reasonable implication.'
iii. UNIDROIT Principles of International Commercial Contracts 2004
Article 2.1.22 (Battle of forms)
Where both parties use standard terms and reach agreement except on those
terms, a contract is concluded on the basis of the agreed terms and of any
standard terms which are common in substance unless one party clearly
indicates in advance, or later and without undue delay informs the other party,
that it does not intend to be bound by such a contract.
iv. The UN Convention for the International Sale of Goods (The Vienna
Convention, CISG)
Article 19
(1) A reply to an offer which purports to be an acceptance but contains additions,
limitations or other modifications is a rejection of the offer and constitutes a
counter-offer.
(2) However, a reply to an offer which purports to be an acceptance but contains
additional or different terms which do not materially alter the terms of the offer
constitutes an acceptance, unless the offeror, without undue delay, objects
orally to the discrepancy or dispatches a notice to that effect. If he does not so
object, the terms of the contract are the terms of the offer with the modifications
contained in the acceptance.
(3) Additional or different terms relating, among other things, to the price,
payment, quality and quantity of the goods, place of delivery, extent of one
party's liability to the other or the settlement of disputes are considered to alter
the terms of the offer materially.
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v.
Supplying the terms from the applicable statutory provisions
GHSP Inc v AB Electronic Ltd [2010] EWHC 1828 (Comm)
3 … It is agreed that, if I find that neither the Claimant's nor the Defendant's
Conditions are incorporated into the contract, then, since there was plainly a
contract, which was indeed performed, … the contract would be governed by,
and incorporate, the implied terms of the Sale of Goods Act 1979, and in
particular the implied term, by virtue of s 14(2) , that the “goods supplied under
the contract are of satisfactory quality”. [The Council for the Defendant] points
out, and in due course will be relying on, the provisions of s14(2C) , whereby
“the term implied by subsection (2) … does not extend to any matter making the
quality of goods unsatisfactory (a) which is specifically drawn to the buyer's
attention before the contract is made”.
b. Evaluation
i.
Advantage of the traditional “mirror image” rule
ii.
Drawbacks of the traditional “mirror image” rule
iii. Advantage of Lord Denning’s preferred approach
iv. Drawbacks of Lord Denning’s preferred approach
v.
What does Article 19 of the CISG seek to achieve? Do you think it is
successful?
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