CISG Advisory Council Opinion No. 1
Electronic Communications Under CISG

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CISG Art. 20(1)

(1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.

OPINION

A period of time for acceptance fixed by the offeror in electronic real time communication begins to run from the moment the offer enters the offeree's server.

A period of time for acceptance fixed by the offeror in e-mail communication begins to run from the time of dispatch of the e-mail communication.

"Means of instantaneous communications" includes electronic real time communication.

The term "reaches" is to be interpreted to correspond to the point in time when an electronic communication has entered the offeree's server.

COMMENT

20.1. CISG Art. 20(1) provides a help to the interpreter of ambiguously stated periods for acceptance. When a period of, for instance, four days is stated in an offer without any indication from when this four-day period starts to run, CISG Art. 20(1) provides a different starting point depending on the medium the offer was sent. For telegrams the period starts from the time it is handed in for dispatch. If it is sent in a letter, from the date shown on the letter, or if no such date is shown, from the date on the envelope. For telephone, telex or other means of instantaneous communication the period begins to run from the moment that the offer reaches the offeree.

20.2. The problem now in consideration is how to determine when the period starts to run in case the offer is made by electronic means. We can envisage three main types of electronic messages, (1) offers in e-mail, (2) offers at passive web sites, and (3) offers at chat sites where communication occurs in real time.

E-mail

20.3. E-mail is not instantaneous communication and, with respect to dating, it is not wholly equivalent to letters sent in envelopes. CISG does not provide any interpretative help with respect to e-mails and uncertain situations must be solved by ordinary means of interpretation taking into account that the party being unilaterally bound (the offeror) normally deserves more protection. E-mails normally produce information about when they were sent and when they were received. CISG provides no direct guidance as to whether the time span starts to run from the time of sending or receiving. A period of time for acceptance fixed by the offeror in e-mail communication begins to run from the time of dispatch of the e-mail communication. This is so because this time can be easily ascertained and e-mails can be seen as functional equivalents of letters.

Passive Web Sites

20.4. When offers are contained in web sites it is often uncertain whether they constitute offers in the legal sense. However, the web site holder may explicitly state that his offer is binding during a certain period of time. No guidance can be found in CISG where the web site holder has provided a time limit of three days without specifying from when the time limit starts to run. Uncertain situations must be solved by ordinary means of interpretation taking into account that the party being unilaterally bound (the offeror) normally deserves more protection. This opinion does not cover non-real time communication over passive websites.

Chatting in Real Time

20.5. Parties may communicate over the Internet by real-time communication (this is common for chat-programs). The technique is such that if the sender writes an "a" the letter "a" immediately appears on the addressee's screen. The parties are both present at the same time and they may talk orally or write to each other just as if they were present in the same room or were talking over the phone. This type of communication qualifies as "instantaneous". CISG Art. 20(1) applies also to electronic communication in real time. If the sender sends an offer and stipulates that it is binding for two hours, the period starts to run from the point in time when the message reaches the addressee, i.e. immediately. For real-time communication it is assumed that the addressee has indicated his willingness to receive electronic messages of the relevant type.

See also UNCITRAL Model Law on Electronic Commerce Art. 5

CISG Art. 21(1)

 (1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.

OPINION

The term "oral" includes electronically transmitted sound provided that the offeree expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address.

The term "notice" includes electronic communications provided that the offeree expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

COMMENT

21.1. Information to the offeree about the late acceptance can be given in an electronic message. The important factor is that the information be conveyed to the offeree, not in what form it was conveyed.

21.2. For the effectiveness of electronic communication see comments in Art. 15

See also UNCITRAL Model Law on Electronic Commerce Art. 5

CISG Art. 21(2)

 (2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect.

OPINION

The term "writing" covers any type of electronic communication that is retrievable in perceivable form. A late acceptance in electronic form may thus be effective according to this article.

The term "oral" includes electronically transmitted sound and communications in real time provided that the offeree expressly or impliedly has consented to receiving electronic communication of that type, in that format, and to that address.

The term "notice" includes electronic communications provided that the offeree expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

The term "dispatch" corresponds to the point in time when the notice has left the offeree's server. A prerequisite is that the offeree has consented expressly or impliedly to receiving electronic messages of that type, in that format, and to that address.

COMMENT

21.3. The purpose of this Article is to make a delayed acceptance effective when the offeror does not inform the other party that the acceptance has been delayed and the acceptance has reached the offeror too late. A typical situation is when an electronic acceptance is delayed and does not reach the offeror within the normal time-span. The article is only applicable if the acceptance is sent in a letter or other writing. The article applies also when the acceptance is sent by an electronic message as long as this electronic message fulfils the two functions of writing, i.e. that it can be understood and saved.

21.4. When the offeror provides a quick notice that that the acceptance has arrived too late, the acceptance is not effective. Information to the offeree about the late acceptance can be given in an electronic message. The important factor is that the information be conveyed to the offeree, not in what form it is conveyed. According to this Article such notice shall be communicated orally or by a [written] notice. The offeror may provide the information by electronically conveyed sound or by an electronic message under the precondition that the sender of the late acceptance has indicated that he is willing to receive such electronic messages.

21.5. It is enough that the notice has been dispatched; it does not have to reach the addressee. However, it must have been dispatched correctly. This means that the address must be correctly stated and that the sender uses a computer program that the addressee has indicated he is willing to accept.

21.6. The offeror should inform the offeree about a late acceptance by dispatching a notice. Dispatch occurs when the notice leaves the offeror's server. If, however, the offeree does not use the kind of electronic communication that the notice is sent in, the offeror is not considered to have dispatched the notice. The offeree must have indicated that he is willing to receive electronic acceptances of the type and format used by the offeror. CISG Arts. 8 and 9 may be of assistance in determining whether the offeree has impliedly indicated his willingness to receive such messages.

See also UNCITRAL Model Law on Electronic Commerce Arts. 5 and 6

CISG Art. 22

 An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.

OPINION

The term "reaches" corresponds to the point in time when an electronic communication has entered the offeror's server, provided that the offeror expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

COMMENT

22.1. This article intends to provide a last time for withdrawal of an acceptance. In traditional means of communication this rule enables the sender of an acceptance to withdraw his acceptance by a faster means of communication. He may, for instance, send an acceptance by ordinary mail (snail mail) and later withdraw it by sending a fax that reaches the offeror before the mail. The problem in relation to electronic means of communication is that there are rarely any practical means of faster communication than electronic messages sent by e-mail or communicated over websites or other EDI-arrangements. However, the question becomes of practical importance in situations where the acceptance is sent by traditional paper mail and the withdrawal is sent electronically.

22.2. The underlying purpose of this article is to ensure that the offeror has an opportunity to read the withdrawal if he so chooses. It is not required that the offeror actually read the withdrawal, but rather that the withdrawal becomes accessible for reading (the distinction between 'reach the mind' and "reach the desk" or "reach the legal entity"). Therefore, when a withdrawal of acceptance has entered the offeror's sphere of control, it must be assumed to have reached the offeror.

22.3. The proposition that a withdrawal only needs to be accessible and not actually read is designed to facilitate evidence. It is possible (more or less easily, but at least conceptually) to prove when a message becomes accessible; it is very difficult to prove when someone actually addressed his mind to it.

See also UNCITRAL Model Law on Electronic Commerce Art. 15

CISG Art. 24

For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.

OPINION

The term "reaches" corresponds to the point in time when an electronic communication has entered the addressee's server, provided that the addressee expressly or impliedly has consented to receiving electronic communications of that type, in that format, and to that address.

The term "orally" includes electronically transmitted sound and other communications in real time provided that the addressee expressly or impliedly has consented to receive electronic communications of that type, in that format, and to that address.

COMMENT

No comment since the issues are covered under the relevant articles concerning "reaches" in articles 15, 16(1), 17, 18(2), 20(1), 21(2), 22 and "oral" in articles 18(2) and 21(2).

CISG Art. 26

A declaration of avoidance of the contract is effective only if made by notice to the other party.

OPINION

The term "notice" includes electronic communications, provided that the addressee expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

COMMENT

26.1. Information to the other party that the contract is avoided can be given in an electronic message. The important factor is that the information be conveyed to the addressee, not in what form it is conveyed.

26.2. For the effectiveness of electronic notices see comments in Article 15.

See also UNCITRAL Model Law on Electronic Commerce Art. 5

CISG Art. 27

Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances,
a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication.

OPINION

A notice, request or other communication may be given or made electronically whenever the addressee expressly of impliedly has consented to receiving electronic messages of this type, in that format, and to that address.

COMMENT

27.1. Notices, requests or other communication to a party can be given in an electronic message. The important factor is that the information be conveyed to the other party, not in what form it is conveyed.

27.2. For the effectiveness of electronic notices, requests or other communication see comments in Article 15.

See also UNCITRAL Model Law on Electronic Commerce Art. 5.

CISG Art. 32(1)

 (1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods.

OPINION

The term "notice" includes electronic communications, provided that the buyer expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

COMMENT

32.1. Information to the buyer about consignment of the goods can be given in an electronic message. The important factor is that the information be conveyed to the buyer, not in what form it is conveyed.

32.2. For the effectiveness of information to the buyer see comments in Articles 15 and 27.

See also UNCITRAL Model Law on Electronic Commerce Art. 5

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