Zawieranie umów przy użyciu wzorców nienormatywnych
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Date
1989
Authors
Advisor
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Journal Title
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Publisher
Wydział Prawa i Administracji UAM
Title alternative
Concluding contracts by means of non-normative forms („battle of forms")
Abstract
The author, noting that general conditions of contracts are widely used in
international commercial transactions, focuses his attention on the problems of
the so-called battle of forms. The latter includes the situation when e.g. a buyer
makes an offer on his own printed form of a contract while a seller accepts
that offer on the form whose content is different from the content of the
offeror's from. The overwhelming majority of such transactions are carried out
without any trouble and thus the question of validity of a contract does not arise. However, if one of the parties intends to evade the performance of his obligation,
or if delivered goods are defective, the question appears whether the contract
was validly concluded and what is the content of such a contract.
The author analyses the ways of eliminating such "battles" adopted in selected
legal systems (USA, West and East Germany, Great Britain) and in the light
of the United Nations Convention on Contracts for the International Sale of Goods
of 1980 and the General Conditions of Delivery of Goods 1968-1975 (in the 1979
version). Finally, the author presents the rules of settling the conflicts of forms
in the Polish civil law. It does not regulate separately the above question; instead,
general rules of making and accepting offer are applicable. In effect, if an offeree
accepts an offer using the from the content of which differs from the content
of the offeror's form, the offer is deemed rejected and the new offer, this
time made by the offeree, comes into existence. However, if the offeror collects
a delivery and pays the price, such a behaviour is regarded as an implied consent
(to the offeree's conditions (Art. 60 of the Civil Code). The above solution is
advantageous to the party who was the last to send his/her form "the last
shot" rule). An objection against the conclusion of a contract on conditions set
forth by the other party contained in one or both forms does not change much
the above image. However, in some circumstances it may be of importance for
the interpretation of the parties declarations of will in the light of Art. 65 of the
Civil Code.
Description
Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 51, 1989, z. 3, s. 119-139.