COMPARATIVE PRIVATE LAW
FORMATION
University of Oslo
Prof. Giuditta Cordero Moss
Case I – Written Amendment
• Installation contract between constructor and
sub-contractor
• Contractual price turns out to be insufficient (no
margin of profit for sub-contractor)
• Sub-contractor proposes increase of price and
constructor agrees
• Written amendment agreement
• Constructor finds another sub-contractor and
revokes amendment
• Was the amendment binding?
Case I- Was the amendment
binding?
• English law:
• Others:
Amendment is not
enforceable
Amendment is binding
and enforceable
Case II- Irrevocable offer
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Tender for construction
Contractor makes a bid
Bid based on local sub-contractors’ prices
Contractor is awarded the contract
The subcontractors’ offer
• ”This offer is binding on the offeror and
cannot be revoked before 30 days have
elapsed from the date hereof”
• Subcontractor revokes the offer before the
term (but after the the contract was
awarded)
Case II- Was the offer binding?
• English law:
• Others:
The offer was not
enforceable
The offer was binding
and enforceable
Case III-Modified Acceptance
• Seller and Buyer agree on the phone on quality,
volume, price, delivery place, and agree to send
written confirmation
• Seller sends confirmation specifying that
transport to be made on ship at seller’s
discretion
• Buyer sends acceptance, but requests ship of
certain nationality
• Seller does not reply
• At moment of shipment, seller says that the
contract was not concluded
Case III – Was the contract
concluded?
• Norwegian, Italian,
English law:
• German law, CISG,
UNIDROIT, PECL:
No
Yes
Case IV – Battle of the Forms
• Seller and Buyer agree on the phone on quality,
volume and price
• Seller sends offer on pre-printed general sale
conditions. Conditions contain limitation of
liability for delays
• Buyer sends acceptance on pre-printed general
purchase conditions. Conditions contain no
limitation of liability except for force majeure
• At time of delivery shortage of goods prevents
timely delivery
Case IV- Was contract binding, is
liability limited?
• Norwegian, Italian,
English law, CISG:
• German law,
UNIDROIT, PECL:
• No contract
• If performance was
started: contract is
binding, no limitation
of liability (”last shot”)
• Contract is binding
• Neither of the liability
clauses is applicable
(”knock out”)
Case V- Break-off of negotiations
• Negotiations between car producer (”Carp”) and
component producer (”Comp”) for joint production
• Plant identified, neg. teams discuss technical design,
allocation of personel, funding, profit-split
• Result of negotiations to be recorded in MoU by each
team; MoUs to be transformed into contract
• From the start Carp negotiates in parallel with other
comp (”Comp 2”). Towards the end of the negotiations
Carp breaks off with Comp and enteres into contract with
Comp 2
Case V- Is Carp responsible for
break-off?
• Norwegian, German,
Italian law,
UNIDROIT, PECL:
Comp is entitled to
reimbursement of
damages
• English law, CISG:
No liability
Common Features
• Contract is concluded by exchange of
conforming offer and acceptance.
Acceptance can be tacit.
Norwegian Law
• Act on Formation of
Contracts §§ 1-9
• Exchange
• No form requirements
• Offer is binding
• Acceptance must
conform – otherwise:
counter-offer
• Mirror image rule (unless
awareness of
misunderstanding)
• Last shot rule
• Progressive creation of
consent (formal contract
not necessary)
• Duty of loyalty in
negotiations
German Law
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•
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•
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§§ 145 ff BGB
Exchange
No form requirements
Offer is binding
Acceptance must conform,
otherwise counter-offer
• Mirror image rule but, if parties
have interest, only modified
part is deemed counter-offer
§155)
• Battle of the forms: if contract
is deemed concluded, knockout (§154)
• No contract until all points
agreed upon (§154.1)
• Formal contract necessary if
parties referred to it (§154.2)
• Culpa in contrahendo (§311.2,
241.2
Italian Law
• Art. 1325 cc
• Agreement, causa (art. 1343: legal), object, form
(only for certain contracts)
• Exchange
• Offer revokable unless firm (1329)
• Acceptance must conform, otherwise counteroffer
• Mirror image rule
• Good faith in negotiations (1337)
English Law
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•
•
•
Exchange
Consideration
Offer is revocable even if firm
Acceptance must conform, otherwise
counter-offer
• Mirror image
• No duty of loyalty or good faith
CISG
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•
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Exchange (art. 23)
No form, no causa, no consideration
Amendment is valid by mer agreement (29.1)
Offer revocable unless firm (16)
Conforming acceptance, otherwise counter-offer (19.1)
Minor modifications acceptable (19.2), but: most
modifications are material (19.3)
• No specific rule on general conditions: mirror image +
last shot (last shot directly only if minor modifications)
• No pre-contractual liability
UNIDROIT Principles
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•
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Exchange (3.2)
No form, no causa, no consideration
Offer revocable unless firm (2.4)
Mirror image + last shot
Directly last shot if immaterial
modifications (2.11)
• Battle of the forms: knock-out (2.22)
• Negotiations must be in good faith( 2.15)
PECL
• Mere agreement (2:101(1))
• Revocable offer, unless firm (2:202)
• Last shot if immaterial modifications
(2:208)
• Battle of the forms: knock-out (2:209)
• Negotiations in good faith (2:301)
Main differences
• Consideration
• Mirror image vs. Knock-out
• Pre-contractual liability