In the formation of contracts under the CISG, how does Article 19 solve the battle of forms issue?
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Abstract
In today’s typical commercial transactions, the buyers and sellers use the standardized forms to communicate with each other. The each party’s form contains pre-printed standard terms which are drafted with different interest in both parties’ mind, especially each party drafts the terms of his form for his benefit. Therefore, the the parties’ standard terms conflict seems to be indispensable. Consequently, the exchange of forms containing conflicting standard terms is referred to as the "battle of forms.".It can be said that there are various legal solutions that apply in solving the battle of forms cases. The CISG does not include any clear and complete rules concerning the battle of the forms. The only provision that could be applied in situations like these is Article 19 of the CISG.
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Keywords
CISG, formation of contract, battle of forms
References
2. Guide to Article 19: Comparison with Principles of European Contract Law (PECL) available at http://www.cisg.law.pace.edu/cisg/text/peclcomp19.html#10 (last visited June 12, 2013).
3. GieselaRuhl, ‘TheBattle of the Forms: Comparative and Econimic Observations’ (2003) 24 U. Pa. J. Int’l Econ. L. 189.
4. André Janssen, KollidierendeAllgemeineGeschäftsbedingungen in InternationalenKaufrecht (CISG) [Conflicting Standard Terms in International Contract Law] (2002)16 WirtschaftsrechtlicheBlätter 453, 454.
5. One is that a solution has to be found in domestic law; another opinion applies the Last Shot Doctrine; and a third opinion follows the Knock Out Rule. See KaiaWildner, ‘Art. 19 CISG: The German Approach to the Battle of the Forms in International Contract Law: The Decision of the Federal Supreme Court of Germany of 9 January 2002’ (2008) 20 Pace International Law Review1-18.
6. ZoiValioti, ‘The Rules on Contract Formation under the Vienna Convention on Contracts for the International Sale of Goods (1980)’ available at http://www.cisg.law.pace.edu/cisg/biblio/valioti.html#int#int (last visited June 12, 2013).
7. Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer and Marisa Pagnattaro. ‘The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence’ (2004) 34 Northwestern Journal of International Law and Business 299-440 available at http://cisgw3.law.pace.edu/cisg/text/anno-art-19.html#*ld (last visited 12/06/2013).
8. GieselaRuhl, ‘TheBattle of the Forms: Comparative and Econimic Observations’ (2003) 24 U. Pa. J. Int’l Econ. L. 189.
9. Seev 26 March 2009 U.S. District Court [Ohio] (MiamiValley Paper, LLC v. Lebbing Engineering & Consulting GmbH) available at http://cisgw3.law.pace.edu/cases/090326u1.html. In this case, the Court stresses that the CISG applies the common law concept of mirror image and states in Article 19. See also Maria delPilarPeralesViscasillas, Cross-References and Editorial Analysis: Article 19, (last visited July 22, 2013).
10. François Vergne, ‘The "Battle of the Forms" Under the 1980 United Nations Convention on Contracts for the International Sale of Goods’ (1985) 33 American Journal of Comparative Law 233-258.
11. J. Honnold, Uniform Law for International Sales under the Convention (Boston 1982) p. 190. Article 19(2).