Article 2.1.1
Formation of contract
The contract is concluded by the acceptance of the offer.
Article 2.1.2
Definition of offer
A proposal for concluding a contract constitutes an offer if it is sufficiently precise and indicates the intention of the offeror to be bound in case of acceptance.
Article 2.1.3
Offer and invitatio ad offerendum
1. The offer may be directed to one or more specific persons.
2. A proposal directed to the public shall not constitute an offer, unless so provided by the offeror or indicated by the circumstances.
3. Circumstances mentioned in the previous paragraph exist, particularly, in case of exhibition of goods and products at a particular price in physical or virtual spaces. In these cases, the offer is presumed effective until the stock of goods or the possibilities to supply the service are exhausted.
Article 2.1.4
Effectiveness of the offer
1. An offer becomes effective when it reaches the offeree.
2. Any offer may be withdrawn if the notice of withdrawal reaches the offeree before or at the same time as the offer.
Article 2.1.5
Revocation of the offer
1. The offer may be revoked if the revocation reaches the offeree before the acceptance has been dispatched.
2. However, an offer cannot be revoked if it establishes a period of irrevocability or the offeree could reasonably have believed that the offer was irrevocable and has started to perform acts of execution.
3. When the offer establishes a period of acceptance, this is presumed to be a period of irrevocability, unless otherwise indicated by circumstances.
Article 2.1.6
Definition of acceptance
1. Acceptance is a firm adhesion to the offer.
2. Acceptance derives from a statement made by or other conduct from the offeree. This conduct may consist in the beginning of performance of the contract by the offeree.
3. Silence or inactivity does not in itself amount to acceptance.
Article 2.1.7
Time of acceptance
1. The offer must be accepted within the time the offeror has fixed, and if no time is fixed, within a reasonable time considering the circumstances.
2. The offer expires at the end of the fixed or reasonable period of acceptance. A late acceptance is not effective, unless the offeror renounces the expiry date by notifying the offeror without delay that it accepts the offer
Article 2.1.8
Acceptance with modifications
Acceptance by the offeree which establishes or implies additional or different terms that alter or condition the terms of the offer is a rejection of the initial offer and, in turn constitutes a new offer.
Article 2.1.9
Standard terms
1. The standard terms of a contract are clauses that are not individually negotiated by the parties and which have been drawn up in advance for a number of contracts of a certain class.
2. In order to oppose the standard terms of the contract to the adhering party, it is necessary for the adherent party to be given notice on them before the conclusion of the contract. This condition shall not be considered satisfied by the mere reference to the conditions in the contract, although the adherent party has signed the contract when
- they are so surprising or unusual that the adherent could not reasonably take them into consideration in regard to the circumstances and purpose of the contract; or
- they are too onerous, taking into account the nature, language and the way they have been established.
Article 2.1.10
Battle of forms
1. When both parties use forms with standard terms and they fail to reach an agreement on the terms to use, the contract is concluded on the basis of the agreed terms and the provisions of the standard terms that are substantially common to both parties.
2. However, the contract is not concluded if either party has informed or informs the other party, without undue delay, that it does not intend to be bound by the contract
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OHADAC principles on international commercial contracts.pdf
In the countries belonging to the OHADAC, in both civil law and common law, it is commonly accepted that no one can be obliged without their consent and that the consent is formed by the offer and the acceptance of said offer. This is the habitual model to form and conclude contracts. The offer and acceptance model exists in the Caribbean countries governed by civil law and frequently it is expressed in their civil codes (Articles 1.009 and 1.010 of the Costa Rican Civil Code; Article 311 of the Cuban Civil Code; Article 1.521 of the Guatemalan Civil Code; Article 6:217 of the Dutch and Suriname Civil Code; Article 1.553.1º of the Honduran Civil Code; Articles 1.804-1.811 of the Mexican Civil Code; Article 1.113 of the Panamanian Civil Code; Article 1.214 of the Puerto Rican Civil Code) or in their commercial codes (Articles 845 to 863 of the Colombian Commercial Code; Article 54 of the Cuban Commercial Code; Article 718 of the Honduran Commercial Code; Article 83 of the Nicaraguan Commercial Code; Articles 201 of the Panamanian Commercial Code and 1.113 Civil Code, Article 272.1 of the Santa Lucian Commercial Code, Article 110 of the Venezuelan Commercial Code). Consent is also necessary in the countries belonging to the common law legal tradition. Although the central idea of the contract not the obligation itself, but the exchange of promises through consideration, consent is expressed through reciprocal promises [Section 2 (1) English Sale of Goods Act; Section 3 (1) Sale of Goods Act of Antigua and Barbuda; Section 6 (3) Sale of Goods Act of Bahamas; Section 6 (3) Sale of Goods Act of Montserrat; Section 3 (1) Sale of Goods Act of Belize; Sections 2 and 6 (3) Sale of Goods Act of Jamaica; Section 3 (1) Sale of Goods Act of Trinidad and Tobago).
The bilateral model of offer and acceptance has been formulated in the CISG (in force in Colombia, Cuba, Honduras, Dominican Republic, Saint Vincent and the Grenadines and Guyana). Articles 14 to 24 regulate the requirements that the offer and the acceptance must satisfy in order to conclude the contract, although they do not expressly mention the consent mechanism through the offer and the acceptance. The conclusion of contracts through offer and acceptance is regulated in Article 2.2.2 UP and also in Article 30.2º CESL.
However, the PECL and the DCFR (Article II-4:201) seem to have deviated from the bilateral model and it is stated in Article 2:101 that the formation of the contract requires only that the parties declare their intention to be legally bound and have reached a sufficient agreement. But, the bilateral scheme has not been abandoned, although Article 2:211 PECL specifies that the rules relating to offer and acceptance will be applied with the appropriate adaptations even though the process of contract formation cannot be analysed into offer and acceptance.
Some countries do not mention offer and acceptance, either in the civil code or in the commercial code. This is the case of France and the Dominican Republic (Articles 1.101 and 1.108 Civil Code) or Haiti (Articles 897 and 903 Civil Code), which consider the contract as an agreement that requires consent, capacity, determined object and legal cause. However, the Draft project of reform of the French law of obligations of 2013 reserves Chapter 2 to the conclusion of the contract, using the offer and acceptance model (Articles 13-34).
To demonstrate the existence of contractual consent or an agreement of intentions requires the application of rules on the interpretation of the contract included in section 1 of Chapter 4 of these Principles, which are applicable, mutatis mutandis, to unilateral declarations of intention. To this end, the comments to the rules of said Chapter, particularly those that refer to the diversity of comparative systems and to problems raised by subjective and objective tendencies of interpretation. In practice, as analysed in commentaries on Chapter 5, although civil law and common law systems have opposing principles, they coincide in the objective interpretation of declarations in line with reasonable criteria, in the light of a context taken in a broad sense.
Commentary