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INTRODUCTION TO CONTRACT FORMATION IN THE CISG AND THE PECL
Section II of the PECL and Part II of the CISG follow the classic pattern of two declarations of will (offer and acceptance) in deeming a contract concluded. The adoption of this process, which is designed in almost the same terms under both texts, is justified for two reasons: (1) it is adopted by the great majority of legal systems and (2) it makes analyzing the formation of the contract easy for the parties and judges or arbitrators. Nevertheless, at times it is difficult to determine what exactly is an offer or an acceptance, such as when negotiations are long and complicated. That, however, does not prevent the conclusion of a contract.
Article 23 CISG fixes the time of the conclusion of the contract by connecting it with the moment at which the acceptance takes effect in accordance with the provisions of the Convention. It seems clear that, although Article 23 is a central piece in Part II of the Convention, it must be viewed in conjunction with the rest of the dispositions of Part II that establish a precise moment at which the indication of assent takes effect, depending on the manner chosen by the offeree to accept the offer. In Part II of the PECL there is no provision similar to Article 23 CISG, although Article 2:205 PECL (Time of conclusion of the contract) tries to embody in a single disposition the precise time of the conclusion of the contract depending on the way in which acceptance of the offer takes place.
An acceptance must coincide with each and every term of an offer in order to conclude a contract (see Articles 19(1) CISG and 2:208(1) PECL). This requirement is known as the “mirror image rule” because the acceptance must be the very reflection of the offer, as in a mirror. An exception is established for the possible introduction of new terms into the acceptance that do not substantially alter the offer. In that case, the acceptance will be valid; the contract will consist of both the terms of the offer and those included in the acceptance that do not substantially alter the offer, so long as the offeror without delay does not object to the new terms (Articles 19(2) CISG and 2:208(3)(b) PECL), or the offer does not expressly limit acceptance to the terms of the offer (Article 2:208(1) PECL), or the offeree does not make his acceptance conditional upon the offeror's assent to the additional or different terms and the assent reaches the offeree within a reasonable time (Article 2:208(3)(c) PECL).
On the other hand, if an element that is included in the acceptance adds new terms, modifies the terms of the offer, or introduces any other type of limitation to the offer that substantially alters it, the contract will not be considered concluded; the response to the offer will be regarded as a counter-offer – that is, if it meets all requirements under the CISG or the PECL to be considered an offer in and of itself (see Articles 14 CISG and 2:208(1) PECL).
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