Contract Formation (Articles 14-24) - Chapter 3 - Practitioner's Guide to the CISG - Second Edition
Originally from: The Practitioner’s Guide to the CISG - Second Edition
§ 3.1 Overview
This chapter sets out the rules which govern the formation of a contract. It provides an overview of the contracting process under the CISG and highlights some differences with the common law. Articles 14 17 and 24 govern the criteria for an offer and its revocability (including the CISG equivalent of the common law “mailbox rule”). Articles 18 and 20–23 govern the acceptance. Finally, Articles 14(2) and 19 describe the “Battle of the Forms” under the CISG.
Unlike the common law, the CISG does not include elements such as “consideration” or the “intention to create legal relations” in its regime. Also, the CISG contains no reference to a statute of frauds or to the parol evidence rule. These functions are filled in by other parts of the CISG, such as Article 8, which, for purposes of determining the intent of a party, takes into consideration all relevant circumstances related to the formation of the contract, and Article 11, which allows a contract to be concluded or evidenced without the need for a writing. In addition, while the CISG makes reference to “good faith,” as previously noted, the “good faith” principle can be either an interpretative tool or a requirement applicable throughout the formation and performance periods of a CISG contract, depending on the circumstances presented. Moreover, from a comparative standpoint, the scope of the “good faith” principle is different under both common law and civil law systems. Under American law, under both the Uniform Commercial Code (UCC or Code) and the Restatement (Second) of Contracts, the good faith requirement goes to the performance of the contract. Whereas in civil law systems, even considering that the application of the principle varies considerably, good faith is a guiding principle not only in the context of performance, but also in the context of formation and interpretation of the contract.