Goods (CISG) required some degree of compromise between domestic doctrines.
The compromise on revocability ultimately adopted in CISG Article 16 is this:
- 1 Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance.
- 2 However, an offer cannot be revoked:
- a if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or
- b if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.
Clearly, the Common law won a point in paragraph (1), in that the CISG ‘starting point’ is revocability. 944944. Accord: Lennart Lynge Andersen & Palle Bo Madsen, Aftaler og mellemmænd (Agreements & Agents) (7th ed. 2017) at 37 (CISG pays homage to the ‘agreement principle’ as opposed to the ‘promise principle’). Then again, since the gaping ‘exceptions’ to revocability in paragraph (2) fully compensate Civilian and Scandinavian systems which favor the promise principle, the fact that (1) comes before (2) should hardly matter. Nor did this thin distinction deter France and Italy from joining the United States in the first group of States to ratify CISG in 1987. Later, other Civil law jurisdictions, including Germany and the Netherlands, would follow suit.
Surprisingly, however, those jurists who in the 1980s advised Danish (and other Scandinavian) lawmakers about CISG ratification maintained that CISG Part II – and especially Article 16(1) – steers too close to the Common (revocability) rule, and (conversely) too far from the ‘promise-principle’ laid down in the Danish Contracts Act. It was as if the very ‘honor’ of the promise principle was at stake! Mainly for this reason, Denmark – along with Finland, Norway and Sweden – at the time of their CISG ratifications made Article 92 ‘declarations,’ thereby refusing to ratify CISG Part II. 945945. Regarding these declarations, see generally Lookofsky, supra n. 16, § 8.4.
Interestingly, the same skeptics also argued that Denmark’s adoption of CISG Part II – which regulates contract formation, but not contract ‘validity’ – might create ‘uncertainty’ as to when (or whether) a binding and