COMPARATIVE PRIVATE LAW FORMATION University of Oslo Prof

COMPARATIVE PRIVATE LAW FORMATION University of Oslo Prof. Giuditta Cordero Moss

Case I – Written Amendment • Installation contract between constructor and sub -contractor • Contractual price turns out to be insufficient (no margin of profit for sub-contractor) • Sub-contractor proposes increase of price and constructor agrees • Written amendment agreement • Constructor finds another sub-contractor and revokes amendment • Was the amendment binding?

Case I- Was the amendment binding? • English law: • Others: Amendment is not enforceable Amendment is binding and enforceable

Case II- Irrevocable offer • • Tender for construction Contractor makes a bid Bid based on local sub-contractors’ prices Contractor is awarded the contract

The subcontractors’ offer • ”This offer is binding on the offeror and cannot be revoked before 30 days have elapsed from the date hereof” • Subcontractor revokes the offer before the term (but after the contract was awarded)

Case II- Was the offer binding? • English law: • Others: The offer was not enforceable The offer was binding and enforceable

Case III-Modified Acceptance • Seller and Buyer agree on the phone on quality, volume, price, delivery place, and agree to send written confirmation • Seller sends confirmation specifying that transport to be made on ship at seller’s discretion • Buyer sends acceptance, but requests ship of certain nationality • Seller does not reply • At moment of shipment, seller says that the contract was not concluded

Case III – Was the contract concluded? • Norwegian, Italian, English law: • German law, CISG, UNIDROIT, PECL: No Yes

Case IV – Battle of the Forms • Seller and Buyer agree on the phone on quality, volume and price • Seller sends offer on pre-printed general sale conditions. Conditions contain limitation of liability for delays • Buyer sends acceptance on pre-printed general purchase conditions. Conditions contain no limitation of liability except force majeure • At time of delivery shortage of goods prevents timely delivery

Case IV- Was contract binding, is liability limited? • Norwegian, Italian, English law, CISG: • German law, UNIDROIT, PECL: • No contract • If performance was started: contract is binding, no limitation of liability (”last shot”) • Contract is binding • Neither of the liability clauses is applicable (”knock out”)

Case V- Break-off of negotiations • Negotiations between car producer (”Carp”) and component producer (”Comp”) for joint production • Plant identified, neg. teams discuss technical design, allocation of personel, funding, profit-split • Result of negotiations to be recorded in Mo. U by each team; Mo. Us to be transformed into contract • From the start Carp negotiates in parallel with other comp (”Comp 2”). Towards the end of the negotiations Carp breaks off with Comp and enteres into contract with Comp 2

Case V- Is Carp responsible for break-off? • Norwegian, German, Italian law, UNIDROIT, PECL: Comp is entitled to reimbursement of damages • English law, CISG: No liability

Common Features • Contract is concluded by exchange of conforming offer and acceptance. Acceptance can be tacit.

Norwegian Law • Act on Formation of Contracts §§ 1 -9 • Exchange • No form requirements • Offer is binding • Acceptance must conform – otherwise: counter-offer • Mirror image rule (unless awareness of misunderstanding) • Last shot rule • Progressive creation of consent (formal contract not necessary) • Duty of loyalty in negotiations

German Law • • • §§ 145 ff BGB Exchange No form requirements Offer is binding Acceptance must conform, otherwise counter-offer • Mirror image rule but, if parties have interest, only modified part is deemed counter-offer § 155) • Battle of the forms: if contract is deemed concluded, knockout (§ 154) • No contract until all points agreed upon (§ 154. 1) • Formal contract necessary if parties referred to it (§ 154. 2) • Culpa in contrahendo (§ 311. 2, 241. 2

Italian Law • Art. 1325 cc • Agreement, causa (art. 1343: legal), object, form (only for certain contracts) • Exchange • Offer revokable unless firm (1329) • Acceptance must conform, otherwise counteroffer • Mirror image rule • Good faith in negotiations (1337)

English Law • • Exchange Consideration Offer is revocable even if firm Acceptance must conform, otherwise counter-offer • Mirror image • No duty of loyalty or good faith

CISG • • • Exchange (art. 23) No form, no causa, no consideration Amendment is valid by mer agreement (29. 1) Offer revocable unless firm (16) Conforming acceptance, otherwise counter-offer (19. 1) Minor modifications acceptable (19. 2), but: most modifications are material (19. 3) • No specific rule on general conditions: mirror image + last shot (last shot directly only if minor modifications) • No pre-contractual liability

UNIDROIT Principles • • • Exchange (3. 2) No form, no causa, no consideration Offer revocable unless firm (2. 4) Mirror image + last shot Directly last shot if immaterial modifications (2. 11) • Battle of the forms: knock-out (2. 22) • Negotiations must be in good faith( 2. 15)

PECL • Mere agreement (2: 101(1)) • Revocable offer, unless firm (2: 202) • Last shot if immaterial modifications (2: 208) • Battle of the forms: knock-out (2: 209) • Negotiations in good faith (2: 301)

Main differences • Consideration • Mirror image vs. Knock-out • Pre-contractual liability