CISG상 서식전쟁의 해결에 관한 해석론

The conflicts of the standard terms exchanged between the buyer and the seller in the process of contract negotiations would ultimately be induced to the issues of the so-called “the battle of the forms”. The United Nations Convention on Contracts for the International Sale of Goods(CISG) does not contain any specific rules on the battle of the forms. As a result, there have been a wide diversity of interpretations suggested by the courts’ decisions and commentators’ views as to the battle of the forms under the CISG. We could possibly classify and categorize these positions into at least five differing approaches or perspectives to resolving the battle of the forms under the CISG, i.e. (1) the view suggesting that the battle of the forms would be resolved by last-shot rule on the basis of applying Article 19 of the CISG (the first view), (2) the view asserting that the implicit exclusion of Article 19 of the CISG would be justified(the second view), (3) the view insisting that the application of Article 19 of the CISG shall only be applied to the issue of formation of the contract(the third view), (4) the view propounding that the regulations as to the battle of the forms shall be sought and found in the applicable domestic law(the fourth view), (5) the view insisting that the battle of the forms would be understood to be a gap in the CISG, thus to be resolved by the application of the general principles pursuant to Article 7(2) of the CISG(the fifth view). The above controversies have come to arise from the divergent understanding of the application of Article 19 of the CISG concerning the modified acceptance of the battle of the forms. The battle of the forms would arguably be related to the modified acceptance with regard to formation of the contract, however it has to be dealt with separately from the general formation of the contract by the offer and the acceptance. While the parties of the contract in the course of general formation of the contract by the offer and acceptance usually recognize the discrepancies between the offer and the acceptance, the parties of the contract under the circumstances of battle of the forms would hardly know the existence of the conflicting standard terms. Therefore, Article 19 of the CISG shall apply only to the conflicts of the dickered terms on which the parties negotiate individually, but it shall not apply to the conflicts of the standard terms. According to the distinctive nature of the battle of the forms as above mentioned, the UNIDROIT Principles of International Commercial Contracts(PICC), and the Principles of European Contract Law(PECL) are adopting the “last-shot rule” to the general formation of the offer and the acceptance while adopting the “knock-out rule” to the battle of the forms. On this ground, the first and the second view as well as the third view all of which do not recognize the gap of the CISG, and thus seek to resolve the battle of the forms by applying Article 19 of the CISG would hardly be justified. Under the first view, the act of performance will always serve as an unconditional assent to the last form irrespective of the parties’ intent. However, in light of the interpretive norms in Article 8 of the CISG, it might be possible to interpret an act of performance as the parties’ intent to conclude a contract notwithstanding the conflict of the standard terms. But it might be unjustified to interpret an act of performance to be in conformity with the other party’s unknown conflicting terms, thus resulting in negating or denying one’s previous terms. Furthermore the second view and the third view would be unsubstantiated since these views acknowledge in appling both Article 19 of the CISG and the knock-out rule respectively and independently, which are based on the contrary premises, to the contract in dispute depending on the timing of the performance. The battle of the forms regarding to the issue of formation of the contract which is within the scope of the CISG, appears to be a gap not to be readily subject to the express resolution by the CISG. Therefore the fourth view which considers the battle of the forms as a question of validity not to be governed by the CISG would hardly be justifiable. Accordingly, as the suggestion of the fifth view, the battle of the forms would amount to the questions concerning matters to be governed by the CISG, but not to be settled in it under the Article 7(2) of the CISG. Thus the “knock-out rule” would have to be applied pursuant to the “general principles on which the CISG is based”. In accordance with the general principles that are reasonably induced from Part Ⅱ of the CISG, where there is an sufficiently definite agreement on the terms of goods, price and quantity in conformity with Article 14 of the CISG, the contract would be interpreted to be formed notwithstanding the conflict of the standard terms. As we can draw an inference from Articles 6, 8, and 11 of the CISG, the CISG identifies and gives effect to an actual intent of the parties and recognizes the formation of the contract on the basis of the parties’ common intent. Therefore the conflicting terms knock each other out and the gaps are to be filled by the provisions of the CISG as well as the default rules of the governing jurisdiction to which the forum rules of private international law lead, so that the contents of the contract would be the standard terms which are common in substance together with the agreed terms.