Correspondence of Forms in Sales Contracts: Examination of Existing Theories in Legal Systems and Discussion of Their Application to the Contract for the International Sale of Goods

Yıl 2025, Cilt: 12 Sayı: 1, 199 - 217

Mohammad Ekram Yawar , Sameulhaq Amany

Öz

In the world of commercial exchanges, it often happens that the buyer and seller, each by sending separate correspondence and in response, declare their intention to conclude a sales contract. General terms and forms that are previously regulated in the same way for all contracts by the buyer or seller are exchanged between the parties. These general terms may conflict with each other in the forms of the buyer and seller. When a dispute arises between the parties to a contract, the question is whether a contract has been concluded despite this discrepancy, and if so, what are the purposes of this contract? The totality of the circumstances, conditions, and conduct of the parties after the exchange of forms usually indicates the conclusion of a valid contract, and it is more logical that the meaning of this contract, also in the part that refers to the conflicting forms, should be determined by the law governing the contract, rather than by one of the conflicting terms proposed by the parties (for example, the first or the last of them in terms of the priority and delay of the exchanged forms). If the law governing the contract is the contract for the international sale of goods, this role is assigned to the contract.

Anahtar Kelimeler

Conformity of Forms, Convention for the International Sale of Goods, Conflicting Contractual Terms

Kaynakça

• Baird, D. G. (2000). Commercial Norms and the Fine Art of the Small Con: Comments on Daniel Keating's' Exploring the Battle of the Forms in Action'. Michigan Law Review, 98 (8), 2716-2726.
• Brown, C. N. (1990). Restoring Peace in the Battle of the Forms: A framework for making Uniform Commercial Code Section 2-207 work. NCL Rev., 69, 893.
• Davis, J. H. (1973). Defense of the Battle of Forms: Curing the First Shot Flaw in Section 2-207 of the Uniform Commerical Code. Notre Dame Law., 49, 384.
• DiMatteo, L. A. (2005). International Sales Law: A Critical Analysis of CISG Jurisprudence. Cambridge University Press.
• Eiselen, S. (2011). The requirements for the inclusion of standard terms in international sales contracts. Potchefstroom Electronic Law Journal, 14(1), 2-31.
• Gabriel, H. D. (1993). The Battle of the Forms: A Comparison of the United Nations Convention for the International Sale of Goods and the Uniform Commercial Code. Bus. Law., 49, 1053.
• Garner, B. A. (2004). Black's law dictionary. St. Paul, Thomson West.
• Garro, A. M. (1994). Gap-Filling Role of the Unidroit Principles in International Sales Law: Some Comments on the Interplay between the Principles and the CISG. Tul. L. Rev., 69, 1149.
• Honnold, J. O. (2009). Uniform law for international sales under the 1980 United Nations Convention. Kluwer Law International.
• Katouzian, N. (2006). Civil Law in the Current Legal System, 14th edition, Tehran, Publication. Mizan. https://www.mizan-law.ir/Book/Details/291
• Keating, D. (2000). Exploring the Battle of the Forms in Action. Michigan Law Review, 98(8), 2678-2715.
• Kelso, J. C. (1982). The United Nations Convention on Contracts for the International Sale of Goods: contract formation and the battle of forms. Colum. J. Transnat'l L., 21, 529.
• McMahon, A. J. (2005). Differentiating between Internal and External Gaps in the UN Convention on Contracts for the International Sale of Goods: A Proposed Method for Determining Governed by in the Context of Article 7 (2). Colum. J. Transnat'l L., 44, 992.
• Rasmussen, R. K. (2000). Lawyers, Law, and Contract Formation: Comments on Daniel Keating's' Exploring the Battle of the Forms in Action'. Michigan Law Review, 98(8), 2748-2759.
• Rosh, R. M. (1990). Demilitarizing the Battle of the forms: a peace proposal. Colum. Bus. L. Rev., 553.
• Ruhl, G. (2003). The battle of the forms: comparative and economic observations. U. Pa. J. Int'l Econ. L., 24, 189.
• Schlechtriem, P., & Butler, P. (2008). UN Law on international sales: The UN Convention on the international sale of goods. Springer Science & Business Media.
• Stephens, C. A. (2007). Escape From the Battle of the Forms: keep it simple, stupid. Lewis & Clark L. Rev., 11, 233.
• The Principles of European Contract Law, 2002. https://www.google.com/search?q=The+Principles+of+European+contract+law+pdf&sca
• UNIDROIT (International Institute for the Unification of Private Law) https://www.unidroit.org/
• Uniform Commercial Code, 2024, https://en.wikipedia.org/wiki/Uniform
• United Nations Convention on Contracts for the International Sale of Goods (1980). https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/
• Vergne, F. (1985). The battle of the forms under the 1980 United Nations Convention on Contracts for the International Sale of Goods. Am. J. Comp. L., 33, 233.
• Viscasillas, M. D. P. P. (1998). Battle of the Forms under the 1980 United Nations Convention on Contracts for the International Sale of Goods: A Comparison with Section 2-207 UCC and the UNIDROIT Principles. Pace Int'l L. Rev., 10, 97.
• Viscasillas, M. D. P. P. (2002). Battle of the Forms, Modification of Contract, Commerical Letters of Confirmation: Comparison of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the Principles of European Contract Law (PECL). Pace Int'l L. Rev., 14, 153.
• Wildner, K. (2008). Art. 19 CISG: The German Approach to the Battle of the Forms in International Contract Law: The Decision of the Federal Supreme Court of Germany of 9 January 2002. Pace Int'l L. Rev., 20, 1.