The Requirements for the Inclusion of Standard Terms in International Sales Contracts
Abstract
The problem dealing with the inclusion of standard terms and conditions in contracts
is a problem that has engaged most legal systems. The United Nations Convention
on Contracts for the International Sale of Goods, Vienna 1980 (CISG) does not
expressly deal with this problem. Accordingly the solution to the issue must be found
in an interpretation and application of the general principles found in articles 8, 14
and 18. One of the main objects of the CISG is the harmonisation of international
trade law. It is generally recognised that in order to achieve harmonisation it is
necessary that courts should interpret and apply the convention in a consistent and
harmonious manner. Unfortunately a number of approaches have emerged from
courts around the world in regard to the inclusion of standard terms. German courts
have developed a strict approach which requires that the standard terms be made
available to the addressee at the time of the conclusion of the contract. They also
require that the standard terms be couched in the language of the main contract. In
stark contrast an American court has used an approach which is very lax in regard to
incorporation, even allowing incorporation after the conclusion of the contract. There
is, however a more moderate approach set out in decisions of the Austrian Supreme
Court where the court adopted an approach which is more akin to that found in most
legal systems, namely that a clear incorporation clause in the contract is sufficient for
the effective incorporation of standard terms. The author critically examines the
case law, the various approaches and the underlying arguments on which they are
based, before reaching the conclusion that the two extreme approaches should be
rejected in favour of the more moderate approach. This approach is founded on a
proper interpretation of the provisions of the CISG as well as being in step with
international trade practice.