Precontractual Damages as a Result of an Irrevocable Offer – A Resolution Within the CISG

Abstract

This paper is written in response to the arguments that have beenput forward by Anne Rossen, Maria Pedersen, and Thomas Neumann,titled “How far does the dynamic doctrine go? Looking for the basis ofprecontractual liability in the CISG”. On the backdrop of this paper, it isworth noting that the United Nations Convention on Contracts for theInternational Sale of Goods (CISG) is one of the most successfulinternational commercial law treaties ever devised. It has been ratified bymost of the world's important trading countries and has become atemplate for the drafting of commercial law treaties. The CISG isconsidered a self-executing treaty, as it creates a private right of action infederal court under federal law. It provides the default set of rules thatgovern contracts for the sale of goods between parties located in differentContracting States. In some cases, the CISG also addresses situations inwhich only one of the parties is located in a Contracting State.This article argues that the CISG can accommodate breaches ofprecontractual conditions through the same procedure applied to breachesof contract. It is a controversial issue but, nevertheless, it is arguable thatthe CISG can cover the internal gap via general principles embeddedwithin its four corners. For this reason, this article will look at Article16(2). In particular, the following issues will be relevant: the revoking ofan irrevocable offer; the effects of Article 4; and the effects of Articles 71-77.