Correspondence of Forms in Sales Contracts; Examination of Existing Theories in Legal Systems and Discussion of Their Application to the Contract for the International Sale of Goods
DOI:
https://doi.org/10.69760/gsrh.01012025002Keywords:
Conformity of Forms, Convention for the International Sale of Goods, Conflicting Contractual Terms, International Trade, International SaleAbstract
In the world of commercial exchanges, it often happens that the buyer and seller, each by sending separate correspondence and in response, declare their intention to conclude a sales contract. General terms and forms that are previously regulated in the same way for all contracts by the buyer or seller are exchanged between the parties.
These general terms may conflict with each other in the forms of the buyer and seller. When a dispute arises between the parties to a contract, the question is whether a contract has been concluded despite this discrepancy, and if so, what are the purposes of this contract?
The totality of the circumstances, conditions, and conduct of the parties after the exchange of forms usually indicates the conclusion of a valid contract, and it is more logical that the meaning of this contract, also in the part that refers to the conflicting forms, should be determined by the law governing the contract, rather than by one of the conflicting terms proposed by the parties (for example, the first or the last of them in terms of the priority and delay of the exchanged forms). If the law governing the contract is the contract for the international sale of goods, this role is assigned to the contract.
References
Baird, D. G. (2000). Commercial norms and the fine art of the small con: Comments on Daniel Keatling’s exploring the battle of the forms in action. Michigan Law Review, 98(8).
Brown, C. N. (1991). Restoring peace in the battle of the forms: A framework for making Uniform Commercial Code Section 2-207 work. North Carolina Law Review, 69(3).
Davis, J. H. (1973–1974). In defense of the battle of forms: Curing the first shot flaw in Section 2-207 of the Uniform Commercial Code. Notre Dame Lawyer, 49(2).
Dimatteo, L. A. (2005). International sales law: An analysis of CISG jurisprudence. Cambridge University Press.
Eiselen, S. (2011). Requirement for the inclusion of standard terms in international sale contracts. Potchefstroom Electronic Law Journal, 14(1).
Gabriel, H. D. (1993–1994). Battle of the forms: A comparison of the United Nations Convention for the International Sale of Goods and the Uniform Commercial Code. Business Lawyer, 49(3).
Garner, B. (2004). Black's law dictionary. Thomson West.
Garro, A. M. (1995). Gap-filling role of the UNIDROIT principles in international sales law: Some comments on the interplay between the principles and the CISG. Tulane Law Review, 69(5).
Honnold, J. O., & Flechtner, H. M. (2009). Uniform law for international sales under the 1980 United Nations Convention (4th Rev. ed.). Kluwer Law International.
Katouzian, N. (2006). Civil law in the current legal system (14th ed.). Mizan Publications. Retrieved from https://www.mizan-law.ir/Book/Details/291.
Keatling, D. (2000). Exploring the battle of the forms in action. Michigan Law Review, 98(8).
Kelso, J. C. (1983). United Nations Convention on Contracts for the International Sale of Goods: Contract formation and the battle of forms. Columbia Journal of Transnational Law, 21(3).
McMahon, A. J. (2006). Differentiating between internal and external gaps in the U.N. Convention on Contracts for the International Sale of Goods: A proposed method for determining governed by in the context of Article 7(2). Columbia Journal of Transnational Law, 44(3).
Moccia, C. (1989–1990). United Nations Convention on Contracts for the International Sale of Goods and the battle of the forms. Fordham International Law Journal, 13(4).
Rasmussen, R. K. (2000). Lawyers, law, and contract formation: Comments on Daniel Keatling’s exploring the battle of the forms in action. Michigan Law Review, 98(8).
Rosh, R. M. (1990). Demilitarizing the battle of the forms: A peace proposal. Columbia Business Law Review, 1990(3).
Ruhl, G. (2003). Battle of the forms: Comparative and economic observations. University of Pennsylvania Journal of International Economic Law, 24(1).
Schlechtriem, P. (2011). Battle of forms in international contract law: Evaluation of approaches in German law, UNIDROIT principles, European principles, CISG; UCC approaches under consideration. Retrieved from http://www.cisg.law.pace.edu/cisg/biblio/Schlechtriem5.html.
Schlechtriem, P., & Butler, P. (2009). UN law on international sales: The UN Convention on the International Sale of Goods. Springer-Verlag.
Stemp, K. C. (2005). Comparative analysis of the battle of the forms. Transnational Law & Contemporary Problems, 15(1).
Stephens, C. A. (2007). Escape from the battle of the forms: Keep it simple, stupid. Lewis and Clark Law Review, 11(1).
The Principles of European Contract Law. (2002).
UNIDROIT (International Institute for the Unification of Private Law). (2010). Principles of international commercial contracts.
Uniform Commercial Code. (2004).
Uniform Commercial Code. (n.d.). Section 2-207: Battle of the forms. Retrieved April 23, 2013, from http://en.wikipedia.org/wiki/Uniform_Commercial_Code#Section_2-207:_Battle_of_the_forms.
United Nations Convention on Contracts for the International Sale of Goods. (1980).
Vergne, F. (1985). Battle of the forms under the 1980 United Nations Convention on Contracts for International Sale of Goods. American Journal of Comparative Law, 33(2).
Viscasillas, M. P. P. (1998). Battle of the forms under the 1980 United Nations Convention on Contracts for the International Sale of Goods: A comparison with Section 2-207 UCC and the UNIDROIT principles. Pace International Law Review, 10(1).
Viscasillas, M. P. P. (2002). Battle of the forms, modification of contract, commercial letters of confirmation: Comparison of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the Principles of European Contract Law (PECL). Pace International Law Review, 14(1).
Wildner, K. (2008). 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. Pace International Law Review, 20(1).
Downloads
Published
Issue
Section
License
Copyright (c) 2025 Global Spectrum of Research and Humanities
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
