MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn a. Since <strong>CLAIMANT</strong> and RESPONDENT did not conclude the contract by virtue of offer and acceptance, the requirements of Art. 14 CISG were not mandatory for the formation of the contract at issue 56. If a contract is not concluded by means of an exchange of “offer” and “acceptance”, the requirements of Art. 14 CISG are not mandatory. Although most of the provisions of Part II of the CISG are only concerned with the formation of a contract by the exchange of two corresponding declarations, the CISG does by no means contain a mandatory requirement that a contract must be concluded by exchanging an identifiable “offer” and “acceptance” [Schlechtriem/Lüderitz, Einheitliches Kaufrecht, p. 188; Honnold et al, before Art. 14 note 132.1]. This point of view is confirmed by Artt. 18(3) and 29(2) CISG. According to these rules, a contract may be concluded simply by “performing an act” (Art. 18(3) CISG) or with an agreement that did not arise out of an exchange of declarations, but out of a document which is signed by both parties (Art. 29(2) CISG) [Honnold et al, Art. 14 note 137.5; Roth/Kunz, RIW 1997, p. 19]. Art. 14 CISG only applies if there is nothing else than a proposal that may (or may not) constitute an “offer” or an “invitation to make offers” [Neumayer/Ming, Art. 14 note 11; Honnold et al, before Art. 14 note 132.1; Neumayer, FS- Lorenz, p. 751]. <strong>CLAIMANT</strong> and RESPONDENT did not agree upon the purchase by exchanging isolated declarations of “offer” and “acceptance”. Instead, they had a telephone conversation that matured into the present contract of sale. Since they did not follow the offeracceptance pattern of Part II of the CISG, the requirements of Art. 14 CISG were not mandatory for the present contract [Honnold et al, Art. 14 note 137.5; Neumayer, FS-Lorenz, p. 751; Enderlein/Maskow, Art. 55 note 2; Staudinger et al/Magnus, Art. 55 note 5]. b. An agreement on the discount was not necessary in order to conclude a valid contract 57. It was not necessary to determine the discount RESPONDENT was to receive during the telephone conversation. RESPONDENT claims that the price was not determined and therefore no contract of sale could have been concluded under Article 14 CISG [Statement of Defence No. 18]. Assuming that there was no agreement on the discount, due regard has to be paid to the wording of Art. 14 CISG. This provision states that the issue is whether a proposal is sufficiently definite to constitute an offer [cf. Neumayer/Ming, Art. 14 note 11; Honnold et al, Art. 14 note 137.5]. It does not, however, constitute minimum requirements for contracts [Staudinger et al/Magnus, Art. 55 note 5; Bucher, p. 66]. 21
Rheinische Friedrich-Wilhelms-Universität Bonn 58. Art. 14 CISG provides that an offer is sufficiently definite if it determines the price or makes provision to do so. According to this rule, such an offer is always deemed to be effective. The offeree of such a declaration is free to conclude a contract by way of an acceptance according to Art. 18 CISG. However, it may not be argued e contrario that a CISG contract which does not fix or make provision for determining the price is not sufficiently definite and thus not binding, as the CISG itself proves the contrary: According to Art. 55 CISG there can be a “validly concluded” contract without a predetermined price [Bianca/Bonell/Eörsi, Art. 55 note 2.2; Lookofsky, (CISG in USA) p. 28; Schlechtriem, note 212]. 59. With regard to Artt. 6 and 8(1) CISG it becomes evident that under CISG rules the most important element of a contract is the intention of the parties to be bound by their agreement [Honnold et al, (1 st edition) Art. 14 note 134 “The Ultimate Criterion: Indication of Intent to be Bound”; Sono, p. 121; Enderlein/Maskow, Art. 14 note 5, 11; Soergel et al/Lüderitz/Fenge, before Art. 14 note 1; Karollus, p. 62; Roth/Kunz, RIW 1997, p. 19]. A contract that the parties intended to conclude must be respected [Adami, Revue de droit des affaires internationales 1989, p. 107; Honnold et al, Art. 14 note 137.8; Ludwig, p. 297]. A missing provision for the determination of the price cannot hinder the conclusion of the contract, since it would run contrary to this general principle of the CISG [cf. Adami, Revue de droit des affaires internationales 1989, p. 110; Karollus, p. 62]. The result would be that the parties’ willingness to be bound would be disregarded. 60. Additionally, the necessity for contracts without a predetermined price must not be ignored. These contracts facilitate international commercial relationships and have already been very common in the life of commerce for a long time [cf. Rabel, p. 7]. The mechanism for the determination of the price provided by the CISG in Art. 55 CISG responds to this need of trade and corresponds to the purpose of the CISG to facilitate and promote trade [Adami, Revue de droit des affaires internationales 1989, p. 120]. If a predetermined price was a mandatory requirement of a contract, this mechanism would be useless. [Bianca/Bonell/Eörsi, Art. 55 note 2.2.4]. 61. Furthermore, it has to be considered that Art. 14 CISG is only concerned with problems regarding offers, while Art. 55 CISG deals with the issue of contracts [Bianca/Bonell/Eörsi, Art. 55 note 2.2.4; Neumayer, FS-Lorenz, p. 750]. Therefore, it is no longer appropriate to concentrate on the issue whether there was a determined discount in the offer after it became 22
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
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MEMORANDUM FOR CLAIMANT

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