Electronic Communications under CISG
| Páginas | 101-116 |
CISG Art. 11
A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
OPINION:
A contract may be concluded or evidenced by electronic communications.
COMMENT:
11.1. The purpose of CISG Art. 11 is to ensure that there are no form requirements of writing connected to the formation of contracts. The issue of electronic communications beyond telegram and telex was not considered during the drafting of the CISG in the 1970s. By not prescribing any form in this article, CISG enables the parties to conclude contracts electronically.
See also UNCITRAL Model Law on Electronic Commerce Art. 5.
CISG Art. 13
For the purpose of this Convention writing includes telegram and telex.
OPINION:
The term writing in CISG also includes any electronic communication retrievable in perceivable form.
COMMENT:
13.1. CISG Arts. 11, 12, 13, 21, 29 and 96 contain the term writing . In the traditional paper world this term was uncomplicated and referred to documents written on paper [or other durable medium] by pencil, pen, etc. The problem is now whether electronic documents other than telegram and telex may also constitute writing . The prerequisite of writing is fulfilled as long as the electronic communication is able to fulfil the same functions as a paper message. These functions are the possibility to save (retrieve) the message and to understand (perceive) it.
13.2.The parties may agree on what type of written form they intend to use (CISG Art. 6). They may, for instance, agree that they only accept paper letters sent by a particular courier service. Unless the parties have limited the notion of writing, there should be a presumption that electronic communications are included in the term writing .This presumption could be strengthened or weakened in accor-dance to the parties prior conduct or common usages (CISG Art. 9(1) and (2).
13.3. This Opinion does not deal with reservations made by States in accordance with CISG Art. 96 nor does it impose any restrictions on States that have made such a reservation.
See also UNCITRAL Model Law on Electronic Commerce Art. 6.
CISG Art. 15
(1)An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.
OPINION
The term reaches corresponds to the point in time when an electronic communication has entered the offerees server.
An offer, even if it is irrevocable, can be withdrawn if the withdrawal enters the offerees server before or at the same time as the offer reaches the offeree. A prerequisite for withdrawal by electronic communication is that the offeree has consented, expressly or impliedly, to receive electronic communications of that type, in that format and to that address.
COMMENT
15.1. An offer is not effective until it reaches the offeree (CISG Art. 15(1)) and may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer (CISG Art. 15(2)). In traditional means of communication this rule enables the offeror to withdraw his offer by a faster means of communication. He may, for instance, send an offer by letter through ordinary mail (snail mail) and then later withdraw it by sending a fax that reaches the offeree before the letter. 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. Thus a question of practical importance arises when the offer is sent by a traditional letter written on a paper and sent by traditional mail while the withdrawal is sent electronically.
15.2. The difficulty from a conceptual point of view is that the addressee of an electronic withdrawal does not have to be physically present at the place where the message arrives. The place of the message is a functional concept rather than a physical one. The message could be located on any server in the world, including the senders the important question is whether the addressee can retrieve it. The following are the most important situations that are likely to be considered in relation to the term reaches in the context of electronic communications:
15.3. Situation A . From a pragmatic point of view it is clear that the addressee of an electronic withdrawal may read it as soon as it is located on his server. He may have problems reaching his server due to internal problems in his network system. This is normally within his sphere of influence . Irrespective of how harsh it may be for the offeree that messages have arrived to his server but cannot be read by him due to internal problems, it is not appropriate to put the risk on the offeror for the offerees technical problems. The offeree may reduce the risk by choosing appropriate internet service providers or designing an adequate technical infrastructure to make sure that the internal communication functions satisfactorily. The sender of an electronic communication ought not to assume this risk.
15.4. Situation B . It is not sufficient that a withdrawal has entered the offerees server. The offeree must also have expressed somehow that he is willing to receive electronic communications. The offerees willingness to accept electronic communications must be taken into account in determining whether an electronic withdrawal has reached the offeror. The consent of the offeree may be evident under CISG Art. 8, governing the interpretation of the conduct of the parties. CSIG Art. 9(1) may also be relevant if the parties have established a practice in their business. CISG Art. 9(2) may apply in connections to trade usages which the parties knew or ought to have known and which in international trade are widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.
15.5. Situation C . A related problem is when the e-mail address is not correctly stated in the message containing a withdrawal. Such messages may enter the addressees server but never reach the addressee personally, so that it cannot be accessed by the addressee. An example is when the correct email address is Thomas@companyx.com but the sender writes Tomas@companyx.com. This wrongly spelled e-mail may sometimes enter Thomas server, but gets stuck in the server, since the server cannot find Tomas without the h. For such situations the risk is on the sender, since Thomas has not indicated his willingness to receive electronic messages incorrectly addressed. Sometimes an electronic communication with an incorrect address is forwarded by the postmaster to the correct address. If the forwarded communication reaches the addressees server in time, the withdrawal is effective. The addressee has in such a situation informed the postmaster that e-mails incorrectly addressed in a certain way should be forwarded to him, and by doing so he has expressed his general willingness to receive also electronic messages incorrectly addressed.
15.6. Situation D . Another problem in relation to reaches is whether the offeree is able to process and understand the electronic communication. Due to incompatible computer programs, the text appearing at the offerees computer may be incomprehensible. The situation is rather close to the problem of a message being written in a language that the offeree is unable to understand. The question at issue here is whether an electronic withdrawal that cannot be accurately processed by the offeree has reached the offeree when it has entered his server. The crucial issue is to what extent the offeree has indicated that he is willing to receive that type of electronic communications. It is not sufficient that the offeree has agreed to generally receive electronic communications. He must have consented to receiving electronic messages of that type, in that format, and to that address. Here again, CISG Art. 8 will be relevant for the interpretation of the conduct of parties, CISG Art. 9(1) will be relevant for any practices established between the parties, while CISG 9(2) may indicate, as a matter of trade usage, whether the offeror has impliedly or expressly agreed to receive electronic messages of a certain type.
See also UNCITRAL Model Law on Electronic Commerce Art. 15
CISG Art. 16(1)
(1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance.
OPINION
In case of electronic communications the term reaches corresponds to the point in time when an electronic communication has entered the offerees server. An offer may be revoked if the revocation enters the offerees server before the offeree has dispatched an acceptance. A prerequisite is that the offeree has consented, expressly or impliedly, to receiving electronic communications of that type, in that format, and to that address.
In electronic communications the term dispatch corresponds to the point in time when the acceptance has left the offerees server. The offeror may revoke the offer by sending a revocation that enters the offerees server before the offerees acceptance leaves the offerees server. A prerequisite is that the offeror has consented, expressly or impliedly, to receiving electronic communications of that type, in that format and to that address.
COMMENT
16.1. This provision enables the offeror to revoke an offer until the offeree has dispatched his acceptance. The revocation must have entered the offerees server before the offeree has dispatched his acceptance.
16.2. For restrictions on the effectiveness of reaches , see comments in Article 15. For the concept of dispatch see the comment 21.3
See also UNCITRAL Model Law on Electronic Commerce Art. 15.
CISG Art. 17
An offer, even if it is...
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