Counter-Offer in UN Convention on Contracts for the International Sale of Goods (1980-Vienna): Plan of Peace Map of Vienna Convention for Battle of Forms Relying on Efficiency-Based Best-Shot Rule

Abstract: Rejection of offer is one of the causes that terminates the offer by the will of the offeree. Rejection of offer may be expressed or implied by adding new conditions to acceptance. In the second case, the offeree’s rejection by adding new conditions to acceptence is considered a counter-offer. The said offeree can not accept the main offer subsequently. The large number of transactions have made it impossible for the dealers to study each and every single term or condition stipulated in a contract and dealers need to prepare template forms for all of their own transactions. These terms are often common and are printed behind the form. Such conditions cause problems when the parties to the contract, both are merchants and use the special forms for conclusion of contract. Conditions in the forms of parties are terms of contract, provided they do not conflict with each other. In case of a conflict between the terms in the forms of both sides, the battle of forms occurs. The battle of forms is one of the most important and the most practical topics in the rejection of offer. Authors of contract law express three theories regarding the battle of forms: “doctrine of reference to domestic law”, “last shot doctrine” and the “knock out doctrine”. Apart from the lack of acceptance of the first theory, commentators of CISG with literary and narrow interpretation of article 19 have inferred the last shot doctrine. By moderate and broadly interpretation of article 6, they have inferred the knock out doctrine. Despite the acceptability of judgmental procedure in courts and arbitration tribunals toward the knock out doctrine, we believe that “efficiency-based best-shot rule” must be strengthened, in order to increase efficiency, reduce contractual and litigation costs, saving time and achieving the complete contract.