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 been
put forward by Anne Rossen, Maria Pedersen, and Thomas Neumann,
titled “How far does the dynamic doctrine go? Looking for the basis of
precontractual liability in the CISG”. On the backdrop of this paper, it is
worth noting that the United Nations Convention on Contracts for the
International Sale of Goods (CISG) is one of the most successful
international commercial law treaties ever devised. It has been ratified by
most of the world's important trading countries and has become a
template for the drafting of commercial law treaties. The CISG is
considered a self-executing treaty, as it creates a private right of action in
federal court under federal law. It provides the default set of rules that
govern contracts for the sale of goods between parties located in different
Contracting States. In some cases, the CISG also addresses situations in
which only one of the parties is located in a Contracting State.
This article argues that the CISG can accommodate breaches of
precontractual conditions through the same procedure applied to breaches
of contract. It is a controversial issue but, nevertheless, it is arguable that
the CISG can cover the internal gap via general principles embedded
within its four corners. For this reason, this article will look at Article
16(2). In particular, the following issues will be relevant: the revoking of
an irrevocable offer; the effects of Article 4; and the effects of Articles 71-
77.