국제물품매매에서의 대금불확정계약의 미정대금결정에 대한 연구

Article 55 deals with the question of how the price is to be calculated if the contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price. On the other hand, under Article 14 a proposal for concluding a contract constitutes an offer only if it is sufficiently definite. This is the case if the proposal indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. This provision was a problem throughout the preparation of the Convention. The difficulties, in particular, were due to the fact that under the law of some States, for example, Austrian, Belgian, Dutch, French and Soviet Law, a contract of sale must necessarily set forth the price or provide a mechanism for determining the price. In addition, Article 55 must be read in conjunction with Article 14. The question then arises whether there is a conflict between Articles 14 and 55. This question is not only interesting from a theoretical point of view. It might also be interesting to ascertain its practical importance. For example, where a buyer has an urgent need for goods and orders them by phone, no reference being made by either party to the price, a strange situation can be arose where the buyer after ordering the goods informs the seller that he actually does not need them, but where the seller already ships the goods or has started production and incurred costs in an effort to assist the buyer. I would like to address several issues with regard to two questions which usually arise in this provision, that first, in what situations Art. 55 applies and secondly, how one ascertains a given price.