III.
Chấp nhận chào hàng - Acceptance
1. Định nghĩa, cơ sở pháp lý - Definition and legal basis
Article 19(3) of the CISG outlines examples of material alterations that would always
render the acceptance a new offer, such as changes to the price, payment terms, or the
quality and quantity of the goods. These types of alterations transform the initial
acceptance into a new offer.
Acceptance under the CISG is characterized as an indication of assent. 1 As per Article
18(1), any declaration or conduct demonstrating acceptance of an offer is recognized
as such. Nevertheless, mere silence or inaction does not constitute acceptance unless
there exists an established practice between the parties (refer to Articles 8 and 9(1), as
well as Articles 18(1) and (3)).2 Acceptance must represent the definitive and
unqualified agreement by the offeree to the offer’s terms. Only the offeree of the
proposed agreement has the authority to accept the offer. 3 To be valid, the acceptance
must be clearly and unequivocally conveyed to the offeror, ensuring it is received
within an appropriate time frame.4
The offeree must communicate their assent to the offer in some manner. Unless the
offeror specifies a particular mode of acceptance, the offeree may indicate acceptance
either orally, in writing, or through conduct that implies assent. 5 A simple statement
such as "yes, I accept" suffices as acceptance, although using these exact words is not
mandatory. An acceptance must reflect an unambiguous intent to be bound by the
offer’s terms.6 Determining whether the offeree had the requisite intent depends on
whether they explicitly or implicitly demonstrated a clear commitment to the offeror’s
proposed terms.7 If an acceptance modifies the offer, Article 19 governs whether this
constitutes an acceptance or a counter-offer. When dealing with foreign languages, a
party negotiating or accepting an offer bears the risk of understanding the subtleties of
that language.
Merely acknowledging receipt of an offer or seeking clarification about the offered
goods does not amount to acceptance. Similarly, an expression of interest in an offer
1 CISG, Art. 18(1).
2 OLG Dresden (30 November 2010) (Lingerie case)
<http://cisgw3.law.pace.edu/cases/101130g2.html> accessed 9 August 2014. (Accessed: 15:04 08/11/2024.)
3 CLOUT case No. 239 Oberster Gerichtshof, Austria, 18 June 1997 (determination as to whether the offer
was made to a mercantile agent). (Accessed: 15:27 08/11/2024.)
4 CLOUT case No 239 Oberster Gerichtshof, Austria (18 June 1997) (remand to determine whether the offer
was made to a mercantile agent). (Accessed: 15:44 08/11/2024.)
5 CLOUT case No. 395 Tribunal Supremo, Spain (28 January 2000)(faxed unconditional acceptance); CLOUT
case No. 308 Federal Court of Australia, Australia (8 April 1995) (statement in offeree’s letter interpreted as an
acceptance); CLOUT case No. 845 Easom Automation Systems, Inc v ThyssenKrupp Fabco, Corp U.S. District
Court, Michigan, United States (28 September 2007). (Accessed: 16:03 08/11/2024.)
6 J. Pierre & V. Pierre, ‘A Comparison of the Rules on Formation of Sales Contracts Under The Louisiana Civil
Code and the United Nations Convention on Contracts for the International Sale of Goods: What Buyers and
Sellers Should Know’ (1993) 20 Southern University Law Review pp. 189, 192; A. Farnsworth, in, C. Bianca &
M. Bonell (eds.), Commentary on the International Sales Law (Giuffrè, Milan, 1987), pp. 163-174.
7 See for example L. Kassel (15 February 1996) Case No: 11 O 4187/95 stating that, if the offeree is uncertain
of the meaning of an offer in a foreign language, the offeree must raise objections in order to get sufficient
certainty, make further inquiries, or use a professional translation.
does not suffice to finalize the contract. Beyond the intent to be bound, acceptance
must be unconditional. Given that acceptance is the conclusive step in contract
formation, it must not hinge on any subsequent action by either the offeror or offeree.
For example, an acceptance that is contingent on the offeree’s board of directors’ final
approval does not qualify as valid acceptance.8
Whether a reply or conduct signifies assent is subject to interpretation based on
Article 8 of the CISG and considerations of trade usages and customs outlined in
Article 9. Established industry practices or customs can influence whether certain
behaviors constitute acceptance.9 The parties may agree upon or establish trade
practices that modify or supersede CISG provisions, such as acceptance inferred
through specific conduct or acceptance without direct communication to the offeror
(Article 18(3)).10 If parties wish to exclude these trade practices, they must do so
expressly. The central objective of contract interpretation is to ascertain the true,
mutual intent of the parties (Article 8(1)). 11 If a mutual understanding cannot be
demonstrated, one must determine whether the intent of one party was so apparent that
the other party could not have reasonably been unaware of it (Article 8(1)). Failing
this, the parties’ declarations must be construed normatively, as a reasonable person in
the same position would understand them, taking into account their language, context,
and all relevant circumstances (Article 8(2)).
2. Cách thức chấp nhận chào hàng - Forms of acceptance of the offer under the
CISG
2.1. Sự im lặng - Acceptance by silence
The second sentence of Art. 18(1) CISG states that “silence or inactivity does not in
itself amount to acceptance.” Put simply, this means that silence in response to an
offer will not, without some additional evidence of the of- feree’s intention, amount to
an acceptance.12
The rule is designed to shield the offeree from having to act on an offer they would
prefer to disregard. It is well-established that an offeror cannot enforce silence as a
condition for acceptance. However, as indicated in Article 18(1) of the CISG ("in
itself") and supported by various case interpretations, there are instances where silence
8 C. Carrara & J. Kuckenburg, ‘Remarks on the manner in which the Principles of European Contract Law’ in
Commentary on Article 17 and Article 18 of the CISG (February 2003).
9 P. Ostendorf & P.Kluth,Internationale Wirtschaftsverträge (Beck, Munich, 2013), p. 576; P. Perales
Viscasillas, in S. Kröll, L. Mistelis & P. Perales-Viscasillas (eds.), UN-Convention on the International Sales of
Goods (CISG) (Beck/Hart/Nomos, Munich, 2011), Art. 9, paras. 8-10.
10 P. Perales-Viscasillas, in S.Kröll, L. Mistelis & P. Perales-Viscasillas (eds.), UN-Convention on the
International Sales of Goods (CISG) (Beck/Hart/Nomos, Munich, 2011) Art. 9, paras. 8-10.
11 W. Achilles, Kommentar zum UN-Kaufrechtsübereinkommen (CISG) (Luchterhand, Berlin 2014), Art 8,
para 2; M. Schmidt-Kessel, in P. Schlechtriem & I. Schwenzer (eds), Kommentar zum Einheitlichen UN-
Kaufrecht (6th edn, Beck, Munich, 2013), Art. 8, para. 22.
12 See for example (Swiss) Handelsgericht Zürich 10 July 1996, CISG-Online No. 227 (Failure by buyer to
respond to notification of increase in sales price was held not to constitute acceptance. There was no evidence,
whether from statements or other conduct of the parties, from previous course of dealings or from trade usage,
from which it could be inferred that the failure by the buyer to respond amounted to an assent to the proposed
contractual modification); See also (Danish) Ostre Landsret 23 April 1998, CISG-Online No. 486.
upon receipt of an offer may be treated as acceptance. For example, if the parties have
explicitly agreed that the offeree’s failure to object to the terms within two weeks
should constitute acceptance, the court is likely to enforce this agreement and consider
the offeree’s silence as valid acceptance. The same principle applies if such an
agreement can be implied from the parties' statements or conduct, their prior dealings,
or a recognized trade practice.
There are certain exceptional situations where silence may signify assent. In business
dealings, it is not uncommon for a contract to be formed not through explicit
acceptance, but rather implicitly through conduct. The interpretation rules provided in
Article 8 of the CISG play a crucial role in determining when silence may be deemed
acceptance. The parties may also have developed specific trade practices where
silence is recognized as valid acceptance. As stated earlier, Article 9(1) binds the
parties to any established usages and customs between them.
In the case of Filanto, S.p.A. v. Chilewich Int’l Corp., the Court did not explicitly
reference Article 9(1) but instead interpreted the parties’ long standing relationship
under Article 8(3). The Court ruled that failing to respond within a specific time frame
could be considered acceptance.13 Here’s the scenario: a New York company had a
master agreement to sell shoes to a Russian company, which included a clause for
disputes to be arbitrated in Moscow. To execute this agreement, the New York
company entered into multiple contracts with an Italian seller. The Italian
manufacturer delivered the shoes but received only partial payment, prompting the
Italian seller to file a lawsuit in New York for the remaining amount. The New York
buyer requested a stay of proceedings to allow arbitration, arguing that the contract
referenced the Russian master agreement, which included the arbitration clause.
The Court applied Article II(1) of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards to determine whether a written arbitration
agreement existed. Since the issue was a matter of federal law, the Court referred to
the CISG's contract principles. The Court ultimately concluded that the New York
buyer’s offer, which referenced the Russian master agreement, was accepted by the
Italian seller's failure to object promptly. Despite Article 18(1) of the CISG generally
stating that silence does not constitute acceptance, the Court, interpreting the parties’
conduct under Article 8(3), found that the Italian seller's delay in objecting implied
acceptance. The parties’ course of dealing created an obligation for the Italian seller to
object without delay, and the failure to do so constituted acceptance of the offer.
The rules regarding the impact of silence after receiving a commercial letter of
confirmation are generally not considered trade usages under Article 9(1). As a result,
inactivity or silence following the receipt of such a letter usually does not indicate
acceptance of the terms within the letter. In any specific situation, the issue must be
resolved using Article 8. If the confirmation letter refers to an already existing
13 789 F. Supp 1229 (SDNY 1992) appeal dismissed 984 F2d 58 (2d Cir 1993). Regarding to the summary of
judgment <https://law.justia.com/cases/federal/district-courts/FSupp/789/1229/1640743/> (Accessed: 17:08
08/11/2024)
contract, the offeror should interpret it as a letter of confirmation rather than an
acceptance (per Article 8(2)). Determining whether the offeree is accepting the offer
or merely acknowledging its receipt must also be assessed according to Article 8(2).14
2.2. Tuyên bố - Statement of the offeree
Under the CISG, the "offer" and "acceptance" form the foundation of the formation of
a legally binding contract. A statement by an offeree is critical because it
communicates the offeree's intent to accept or reject the offer. These statements are
governed by the provisions of the CISG and are designed to ensure clarity, certainty,
and mutual agreement between the parties involved in the international sale of goods.
Article 18 of the CISG deals specifically with the "acceptance" of an offer and
outlines various types of statements and their legal implications.
According to Article 18(1), acceptance of an offer must be made by a "statement" or
other conduct, indicating the offeree’s intention to be bound by the terms of the offer.
A statement can be either explicit (e.g., a direct verbal or written agreement to the
terms) or implicit (e.g., performing an action that indicates acceptance). The CISG
does not mandate a specific form for the acceptance, which reflects the convention’s
goal to allow flexibility in international trade. An offeree may accept an offer either
orally, in writing, or through conduct that signifies assent. A critical feature under the
CISG is that an offeree’s acceptance can be conditional. If the offeree modifies the
terms of the offer, the acceptance becomes a counteroffer rather than an acceptance.
Article 19 provides that if the acceptance contains additional or different terms, it may
still constitute a valid acceptance only if the offeror expressly agrees to these new
terms. If the offeror does not accept the changes, then the agreement is not concluded.
Therefore, the offeree must be mindful of making any changes that could convert an
acceptance into a counteroffer, which could alter the course of negotiations.
A unique aspect of the CISG is its provision on silence or inaction. Under Article
18(2), if the offeree does not respond to the offer but behaves in such a way that
clearly indicates acceptance (for example, by beginning performance of the contract),
then this conduct may be treated as acceptance. Silence, however, does not usually
constitute acceptance under the CISG unless the offeree has previously indicated that
silence will be interpreted as acceptance or the parties are engaged in an ongoing
pattern of conduct where silence has been interpreted as assent.Article 21 establishes
that acceptance is effective once it reaches the offeror, unless the offeror stipulates
that the acceptance must be received within a certain period. This means that a
statement made by the offeree may be effective immediately upon dispatch (if no
particular time frame is specified), or upon arrival at the offeror's location. The offeree
must ensure that the statement of acceptance reaches the offeror within the time frame
specified in the offeror, in the absence of such a time frame, within a reasonable time.
The place of communication is also relevant under the CISG.
14 Appellate Court Frankfurt (5 July 1995) (Chocolate Products Case) available at:
<https://cisg-online.org/files/commentFiles/Butler_Mueller_Acceptance-of-an-Offer_2016_299.pdf>
(Accessed: 17:52 08/11/2024)
Article 20 provides that if the offeror requires that the acceptance be communicated to
a particular place, the acceptance must be made to that specific location. This ensures
that the offeree’s statement of acceptance is directed correctly and will be legally
effective once it reaches the offeror in the specified manner.
2.3. Hành vi - Conduct of the offeree
While a statement of acceptance is the most common method of accepting an offer
under the CISG, the offeree’s conduct can also play a pivotal role in signaling
acceptance. The CISG's flexibility regarding the forms of acceptance means that the
offeree’s actions can sometimes serve as a substitute for an explicit statement. This
aspect of the CISG is crucial in the context of international trade, where immediate or
clear communication might not always be feasible due to factors like time zone
differences, language barriers, or the parties being located in different parts of the
world. The CISG explicitly recognizes that conduct can serve as an acceptance, as per
Article 18. Conduct includes any actions by the offeree that unambiguously indicate
their agreement to the offer, even if the offeree does not make an explicit statement.
This could include beginning performance or taking steps that show a clear intention
to be bound by the terms of the offer. For example, if a buyer receives an offer to
purchase goods and then proceeds to pay for the goods or takes possession of them,
this may be sufficient conduct to establish acceptance under the CISG.
Furthermore, Article 18(2) allows that silence or inaction may constitute acceptance,
provided there is prior conduct or agreement between the parties that gives the offeree
reason to believe that their silence will be interpreted as assent. This provision is
important in scenarios where the offeree, due to the nature of the business or prior
dealings, is expected to accept by default unless they explicitly reject the offer.
In addition to silence or inaction, the offeree’s conduct may include the
commencement of performance. This is particularly significant in contracts for the
sale of goods where delivery or some form of action is involved. If the offer involves
the sale of goods, and the offeree begins to perform under the terms of the offer (e.g.,
by sending goods, or taking steps toward completing the transaction), this conduct
may be sufficient to constitute acceptance, even in the absence of a formal statement.
The CISG recognizes that this form of acceptance can be particularly useful in
commercial transactions, where time is often of the essence, and it is often impractical
to await formal acceptance through written correspondence. Performance is also
recognized as a form of conduct under the CISG, as it unambiguously signals the
offeree's intent to be bound by the offer.
The offeree's conduct may also be influenced by an obligation to respond within a
reasonable time. Article 21(1) requires that the acceptance must reach the offeror in a
timely manner. If the offeree’s conduct suggests that they are delaying or refraining
from responding to the offer, they may be deemed to have failed to accept the offer
within the prescribed period. This emphasizes the offeree’s responsibility to act
promptly, and failure to do so may prevent the formation of a contract.
It is also important to note that conduct can play a role in the revocation of an offer.
Under Article 16, an offeror may revoke their offer before the offeree accepts it,
provided that the revocation is communicated to the offeree. However, if the offeree
has already begun performance, the offer cannot be revoked. The offeree's conduct in
starting performance serves as a shield against the revocation of an offer, as it shows
that the offeree has already entered into an agreement by their actions.
2.4. Trao đổi thông tin bằng điện tử - Electronic communications
Upon receiving an offer, a contract is concluded by the acceptance of that offer. Under
the CISG, acceptance can occur explicitly through a statement, implicitly through
conduct, or in some cases through silence, though not silence alone, and must align
precisely with the terms of the offer. Ideally, the offer should be clearly expressed and
fully accepted without ambiguity. However, sometimes acceptance may come with
additional or altered terms, or may stem from a different interpretation of the offer’s
provisions. This can result in conflicting declarations, requiring the resolution of legal
consequences.
The CISG provides rules to address such conflicts. According to Article 19(1), if an
acceptance includes terms that conflict with the original offer, it is generally
considered a rejection and simultaneously a new offer. However, Article 19(2) sets an
exception to this rule, stating that minor or non-material changes do not prevent the
declaration from being considered an acceptance. To avoid these changes becoming
part of the contract, the initial offeror must promptly object, either orally or by
sending a notice. The CISG-AC Opinion No. 1 clarifies that “oral” objections include
those made through electronic sound transmissions, and “notice” encompasses all
forms of electronic communication.
CISG-AC Opinion No. 1 on Electronic Communications under the CISG, developed
by the International Sales Advisory Council (CISG-AC), consisting of notable experts,
illustrates that the Convention’s rules on communication apply equally to electronic
and traditional forms of communication. It is important to mention that, in the
foreseeable future, the United Nations Convention on the Use of Electronic
Communications in International Contracts is anticipated to gain approval from the
United Nations General Assembly, enhancing the CISG (and other conventions)
specifically in relation to electronic communications. 15 The CISG offers a flexible
framework for contract formation through any method of communication,
encompassing both traditional and electronic forms, without needing overly complex
interpretations. Consequently, the CISG is expected to adapt effectively to future
technological advancements.
When an offer is received, a contract is formed by the acceptance of that offer.
According to the CISG, acceptance can occur explicitly through a statement,
15 Acceptance of an offer in light of electronic communications; Woflgang Hahnkamper;
<https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/hahnkamper.pdf> (Accessed:
18:02 08/11/2024.)
implicitly through conduct, or, in rare cases, by silence, though silence alone does not
suffice. The acceptance must align precisely with the terms of the offer. Ideally, an
offer is clearly formulated and fully accepted without ambiguity. However, situations
may arise where acceptance includes additional or differently interpreted terms,
potentially creating conflicts that must be legally resolved.
The CISG provides guidelines for addressing such disputes. Under Article 19(1), if an
acceptance introduces terms that conflict with the original offer, it is generally treated
as a rejection and simultaneously as a new offer. Yet, Article 19(2) offers an
exception, indicating that minor or non-material alterations do not transform an
acceptance into a new offer. To exclude these changes from the contract, the original
offeror must promptly object, either verbally or by sending a formal notice. As
clarified by CISG-AC Opinion No. 1, "oral" includes sound transmitted electronically,
while "notice" encompasses various forms of electronic communication. Article 19(3)
outlines examples of material alterations, which invariably change the acceptance into
a new offer. These significant terms include price, payment conditions, and the quality
or quantity of the goods. The Electronic Communications Convention establishes
criteria that equate electronic communications with traditional paper documents, as
well as electronic authentication methods with handwritten signatures. Its provisions
reinforce interpretations regarding the acceptance of offers through electronic means
under the CISG. For instance, Article 10(2) of the Convention specifies that an
electronic communication is considered to have "reached" the recipient when it is
capable of being retrieved by the addressee at a designated electronic address.
Importantly, the Convention upholds the principle that communications made
electronically cannot be denied legal validity solely because they are in electronic
form. It also clarifies that a proposal made electronically, which is not directed to
specific individuals, constitutes an invitation to deal rather than a binding offer,
consistent with Article 11 of the CISG.
Additionally, the forthcoming United Nations Convention on the Use of Electronic
Communications in International Contracts aims to introduce supplementary rules,
setting mandatory provisions for emerging communication methods and enhancing the
CISG’s ability to accommodate future changes in business practices.
