To understand whether, when and to what extent the general terms and conditions apply to the sales relationship is the purpose of this article, in which an attempt will be made to outline the differences between the civil law and the Vienna Convention rules.

In commercial negotiations it is far from uncommon for the buyer, while expressing to the seller his willingness to accept the proposal received, to include in his declaration additional or different conditions to those used by the other party.

It sometimes happens that the purchaser merely accepts the proposal, enclosing its general terms and conditions within the communication. Sometimes, the general terms and conditions are not even attached to the order confirmation, but only referred to (e.g. by means of a link which links to a page on the site where they are uploaded). It still happens that both parties enclose their "general terms and conditions" to all the documentation they exchange in the course of negotiations for a particular sale, or even in the course of their much broader business relationship (in purchase orders, emails, invoices, website, delivery notes, delivery notes, etc.).

To understand whether, when and to what extent the General Terms and Conditions (GTC) apply to the sales relationship is the purpose of this article, in which an attempt will be made (as far as possible) to outline the differences between the civil law and the Vienna Convention (CISG).

With the aim of giving the article a systematic approach and hoping that this will make an issue that is certainly far from easy more understandable, we prefer to proceed by stepFirstly, analysing what happens if only one of the contracting parties has referred to its GTC at the stage of the conclusion of the contract, and then moving on to the more complex situation where both parties have referred to their GTC (so-called ".battle of the forms").

1. Proposal and acceptance: Art. 1229 of the Civil Code and Art. 19 CISG.

Although the Vienna Convention does not contain a rule expressly regulating general terms and conditions, since its Part II (Art. 14-23) comprehensively regulates the "formation of the contract", it will be necessary to refer to the rules contained therein in order to understand what formal requirements the GTC are subject to.[1]

- Read also: Proposal, acceptance and pre-contractual responsibility. Vienna Convention and the Civil Code compared.

In particular, Art. 19(1) of the Convention provides that a reply to a contractual proposal purporting to be an acceptance, but which contains additions, limitations or other modifications, is to be considered as a rejection of the proposal and is therefore to be considered as a counter-proposal.

From a first reading of this provision, it would appear that the CISG also adopts the principle transposed by the civil law system in the fifth paragraph of Art. 1326 of the Civil Code, under which "an acceptance not in conformity with the proposal is equivalent to a new proposal".

In fact, the Civil Code very strictly accepts the so-called '.mirrow image rule", i.e. the need for a fully corresponding relationship between the content of the proposal and the acceptance, even considering it necessary that the meeting and merging of proposal and acceptance should involve not only the main clauses, but also the ancillary ones. The case law reads:

"On the subject of the parties' agreement, the hypothesis provided for in the last paragraph of theArticle 1326 of the Civil Code. also occurs when the changes requested at the time of acceptance are of secondary value; therefore, in progressive training contractsin which the agreement of the parties on all the terms is reached gradually, the moment of finalisation of the transaction is normally that of agreement final on all main elements and accessoriesunless the parties intended to bind themselves in the agreements reached on individual points by reserving the regulation of secondary elements. "[2]

La CISG, on the other hand, knows an exemption to the "mirrow image rule"contained in Art. 19(2). In particular, the response to an offer received, which has a different content, but not to such an extent as to substantially alter its terms (c.d. immaterial modifications), constitutes an acceptance of the offer unless the offeror, without undue delay, contests such discrepancies either orally or by serving a notice to that effect on the other party.

But what are the immaterial modifications introduced by Article 19(2)?

International jurisprudence has considered not substantiale.g. a change in the acceptor favourable to the proposer[3] or for these irrelevant[4]an amendment to the packaging clause[5]an amendment to the clause on the time limit for reporting defects[6]a warning that the price might fluctuate due to changes in market prices[7].

The third paragraph of the aforementioned Art. 19 comes to the interpreter's rescue, indicating the variations that instead are substantial and which therefore, if made in the answer, transform it into a rejection of the proposal, so that it necessarily becomes a counter-proposal. These are the modifications:

"the price, the payment, the quality and quantity of the goods, the place and time of delivery, the limits of one party's liability to the other or the settlement of disputes."

Arguably, the choice of having adopted a "mirrow image rule" is not rigid, it is dictated by the need to prevent one of the parties, who, in the presence of changed factual circumstances, intends to escape from its contractual obligations, from achieving this result by pointing out a non-substantial discrepancy between the proposal and acceptance and, therefore, the non-conclusion of the contract.[8]

Thus, in any hypothesis in which the adherent's general terms and conditions involve non-substantial modifications, the contract, in the absence of an objection on the part of the proposer, must be deemed to have been concluded and will be governed by the clauses contained in the acceptor's form (again, it should be noted that only the hypothesis in which it is only the adherent who has invoked the GTC and not both parties are being analysed at present).

2. When the GTC apply to the contract: Civil Code and CISG compared.

Taking the reasoning further, in the event that the adherent's GTC contain significant changes with respect to the proposal, the application of the civil law rules, as opposed to the Vienna Convention rules, has obvious practical impacts.

In fact, if only the civil law rules apply to the relationship, the problem will (mainly) be solved by using the tools provided by Art. 1341 of the Civil Code, which provides, in a very condensed form, (para. 1) that the GTC are effective vis-à-vis the party who received them, if they were known or knowable by him using ordinary diligence at the time of the conclusion of the contract, with the exclusion (para. 2) of the clauses "vexatious" the validity of which is, however, subject to specific written acceptance by the recipient.

With regard to non-'vexatious' clauses, there are essentially two limits to the enforceability of the GTC imposed by law:

  • the reference to the time of the conclusion of the contract, the purpose of which is to exclude the effectiveness of general terms and conditions that the adherent has had the opportunity to become aware of at a time subsequent to the perfection of the contract (e.g. a text inserted in the invoice[9]);
  • As for the criterion of ordinary care, this must refer to a concept of normalitywhich must be calibrated according to the type of economic transaction, it being however excluded that the adherent may be required to make a special effort or expertise in order to know the general terms and conditions used by the predisposing party.[10]

- Read also: General terms and conditions in national and international online sales. When are they valid?

If the Vienna Convention applies to the relationship, in addition to Art. 19, Arts. 14 and 18, which govern the "formation of the contract", as well as Arts. 7 and 8, which govern the criteria of interpretation, will come to the rescue.

Indeed, according to much of the doctrine[11] and case law[12]In the event of the application of the CISG to the relationship, the above rules are the only ones that must be adopted in order to understand the formal requirements to which the CISG must be subject, with the consequent inapplicability of the rules of Art. 1341 of the Civil Code.

- Read also: General Terms and Conditions, 1341 of the Civil Code and the Vienna Convention.

Like already analysed in a previous article, Art. 14 provides that a proposal addressed to one or more persons, in order to be such, must be sufficiently precise (sufficiently defined) and indicate its author's willingness to be bound.

In adopting this principle to the general terms and conditions of sale, the German Supreme Court stated that it must be apparent at the formation of the contract:

  • expresses the offeror's intention to incorporate the GTC into the offer;
  • the text must have been transmitted or, in any event, made available to it prior to the conclusion of the contract.[13]

The actual 'availability' of the GTC must be bilaterally assessed in each case, in the sense that it is also incumbent on the receiver, at the negotiation stage, to ascertain and understand whether or not the GTC are applicable to the relationship, using the diligence of the 'general terms and conditions of sale'.reasonable person"imposed on him by Art. formerly Article 8(2).[14]

It would seem, therefore, that the Convention imposes a higher degree of diligence on the entrepreneur in ascertaining and verifying by what contractual terms the relationship is governed; this is certainly in line with the spirit of the Convention, designed to regulate international sales relationships between operators in the sector who are required, necessarily, to have a level of competence appropriate to the activity they perform.

Similarly to civil law, the time at which the GTC are made known to the recipient is essential, which is why case law has held that GTC that have been submitted to the recipient once the relationship has already been concluded, i.e. by means of a reference thereto in the sales invoice, cannot form part of the contract.[15]

3. Implied acceptance by conclusive facts.

Once it has been established that the conditions were known or knowable to the recipient, the Convention being characterised by the principle of freedom of form (and evidence) under Art. 11, in the absence of express acceptance, it must be understood whether they were accepted implicitly, in accordance with the combined provisions of Art. 11 and Art. 11.Article 18 (acceptance of the proposal) and Article 8.

In fact, Article 18(1) states firstly that "a statement or other conduct of the recipient indicating consent to an offer constitutes an acceptance."Furthermore, Art. 18(3) states that "the recipient of the offer may indicate consent by performing an act relating, for instance, to the shipment of goods or payment of the price."

On this point, a US court ruled that:

"under the CISG, acceptance does not require a formal signature or acceptance of the offer. [...] The investigation showed that at the time STS had sent sales quotations to Centrisys, including general terms and conditions as an annex to the communication. By adopting the sales quotation, Centrisys accepted the contractual proposal for the sale of the centrifuge, including the general sales conditions."[16]

It is thus inferred that if the GTC were known or knowable (using the diligence of the reasonable man set forth in Art. 8) by the receiver and have been accepted by the latter by implication, they will form part of the contract unless the parties agree or the usages and customs applicable to the relationship make their validity conditional on a form which the parties have not complied with.

- Read also: International trading and the importance of customs and traditions: Vienna Convention and Civil Code compared.

4. Language of the CGC.

A very brief digression on the subject of the obligations of diligence of the receiving party, there are divergent orientations as to the validity of general terms and conditions written in a language not known to the receiving party; part of the case law, in fact, considers that the GTC written in a foreign language are in any event valid, precisely by virtue of the obligations under Art. 8(2), it being held that an entrepreneur or in any event an international operator, before signing a contract, is bound to verify what he is signing even (trivially) by having a simple translation made.[17]

5. Battle of the forms: knock-out and last shot rules.

At present, the scenario where only one of the two parties has sent its general terms and conditions has been analysed.

What happens, on the other hand, if one party sends a proposal to the other party, enclosing its own GTC, and the other party responds, albeit accepting the proposal, by enclosing its own GTC that differs from those received, and then both commence performance of the contract?

Considering that the parties have executed the contract, the need arises to understand from which clauses standard the relationship is regulated and two main approaches are used to do this: the last shot rule and the knock-out rule.

As an advocate of "last shot rule"it is deemed appropriate to refer to the most authoritative doctrine:

"if the general terms and conditions of the acceptor substantially alter the terms of the proposal, the contract cannot be considered to have been concluded, not even by excluding the conflicting general terms and conditions, as would be the case in part of the doctrine and case law which favour the so-called "Rechtsgültigkeitslösung" o "knock-out rule'. In our view, if the contract is performed, this must be considered as acceptance by the (original) offeror of the acceptor's counter-proposal - of which the general terms and conditions that substantially modify the original proposal also form part; in doctrine it has been referred to as the "knock-out rule".last shot rule'[18]

According to the different theory of 'knock-out rule"In the event that the parties have exchanged conflicting forms, the fact that the contract has been executed should be interpreted as the intention of the parties, not so much that they have not reached an understanding (otherwise the execution of the contract would not be explained), but rather that they have reached a consensus regardless of the conflicting clauses, which clauses must instead be removed from the contract.

The German Federal Court espoused this theory, justifying it on the basis of the criteria of good faith and fair dealing (Art. 7(1) CISG), stating that clauses contained within general terms and conditions become part of the agreement (only) if they do not conflict with each other.[19]

Certainly, this theory has implications that are far from easy to execute and difficult to apply in practice, if one thinks of the fact that it will have to be left to the judge to reconstruct the actual will of the parties pursuant to Art. 8, going so far as to delete the clauses on which there was no actual meeting of wills between the contracting parties.

[1] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General terms and conditions of contract in contracts for the international sale of movable goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''The general terms and conditions in use in international trade and their evaluation at the transnational level'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981); Larry A. DiMatteo, International sales law. A global challenge, Cambridge, 2014.

[2] Cass. Civ. 2003, no. 16016.

[3] Oberster Gerichtshof, Austria, 20.3.1997.

[4] China Internationale Economic & Trade Arbitration Commission, 10.6.2002.

[5] Oberlandesgericht Hamm, Germany, 22.9.1997.

[6] Landgericht Baden-Baden Germany, 14.8.1991.

[7] Cour d'Appel de Paris, France, 22.4.1992.

[8] Bellelli, sub. art. 19, Vienna Convention on Contracts for the International Sale of Goods, commentary coordinated by Bianca, CEDAM, 1992.

[9] Cass. Civ. 1962, 2890.

[10] Bianca, Civil Law, The Contract, 1987.

[11] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Terms and Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981).

[12] Trib. Rovereto 24.8.2006; Cass. Civ. 16.5.2007, no. 11226.

[13] Bundesgerichtshof, Germany, 31.10.2001; on this point also Zeller, The CISG and the Battle of the Forms, in Di Matteo, op. cit.

[14] Zeller, The CISG and the Battle of the Forms, in Di Matteo, op. cit.

[15] Chateau des Charmes Wines Ltd. v. Sabaté USA, Sabaté S.A.

[16] Golden Valley Grape Juice and Wine, LLC v- Centrisys Corporation, 22.10.2011.

[17] MCC.Marble Ceramic Centre v. Ceramica Nuova D'Agostinoin the opposite direction, Oberlandesgericht Celle, Germany, 2.9.1998.

[18] Ferrari, sub art. 19, Vendita internazionale di beni mobili, op. cit. in Mastromatteo, La Vendita internazionale, Giappichelli, 2013.

[19] Bundesgerichtshof, Germany, 9.1.2002.