민법적 시각에서 본 CISG상의 서식전쟁

To find a solution with regard to the conflict of the battle of the forms is not easy. This is because the commercial practice of sending offers and acceptances that contain general conditions is complicated and its outcomes are contradictory. The first question with regard to the conflict of the battle is whether contract is made and valid despite no all consent with all of contractual terms. The second question follows what the terms of the contract are if the contract is valid. The courts for the answer to the first question is likely affirmative to the validity of contract. However, the answer to the second question may not be affirmative. There are three suggestions to solve the conflict of the battle of the forms. First, when ‘last-shot doctrine’ is applicable, the last person to send his form is considered to control the terms of the contract and therefore the last person wins the battle. Second, when ‘knock-out rule’ is applicable, clauses contained in the forms which are contradictory are excluded and therefore excluded clauses are substituted by the applicable law, usage, or practices. Third, since expressly no provision with regard to the conflict of the battle of the forms is provided in CISG, it is supposed to resolved with the principle by applying general principles upon which the Convention is based. I would like to suggest some tools how to interpret parties’ intents in forms based on traditional contractual views. These suggestions apply situations where parties’ intents for agreement may not be clear. I have suggested that parties’ intents may be classified into overt lack of agreement and hidden lack of agreement. It is reasonable to apply ‘last-shot doctrine’ to overt lack of agreement from the conflict of forms. If hidden lack of agreement can be found, ‘knock-out rule’ is applicable rather than ‘last-shot doctrine’. This distinction is based on CISG article 8 and traditional contractual views. I believe that the situations of the battle of forms are likely to be hidden lack of agreement rather than overt lack of agreement. Hidden lack of agreement is like to be where parties consider to have agreed with all points to comprise a contract, but in fact they have not. In this situation, ‘knock-out rule’ should apply.