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(1) A late acceptance is nevertheless effective as an acceptance if without undue delay the offeror so informs the offeree or gives notice to that effect. 

 

(2) If a communication containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without undue delay, the offeror informs the offeree that it considers the offer as having lapsed. 

 

COMMENT


1. Late acceptance normally ineffective

 

According to the principle laid down in Article 2.1.7, for an acceptance to be effective it must reach the offeror within the time fixed by the latter or, if no time is fixed, within a reasonable time. This means that as a rule an acceptance which reaches the offeror thereafter is without effect and may be disregarded by the offeror.

 

2. Offeror may nevertheless “accept” late acceptance

 

Paragraph (1) of this Article, which corresponds to Article 21 CISG, states that the offeror may nevertheless consider a late acceptance as having arrived in time and thus render it effective, provided that the offeror “without undue delay [...] so informs the offeree or gives notice to that effect”. If the offeror takes advantage of this possibility, the contract is to be considered as having been concluded as soon as the late acceptance reaches the offeror and not when the offeror informs the offeree of its intention to consider the late acceptance effective.

 

Illustration

 

1. A indicates 31 March as the deadline for acceptance of its offer. B’s acceptance reaches A on 3 April. A, who is still interested in the contract, intends to “accept” B’s late acceptance, and immediately informs B of its intention. Notwithstanding the fact that this notice only reaches B on 5 April the contract is concluded on 3 April.

 

3. Acceptance late because of delay in transmission

 

As long as the acceptance is late because the offeree did not send it in time, it is natural to consider it as having no effect unless the offeror expressly indicates otherwise. The situation is different when the offeree has replied in time, but the acceptance reaches the offeror late because of an unexpected delay in transmission. In such a case the reliance of the offeree on the acceptance having arrived in time deserves protection, with the consequence that the late acceptance is considered to be effective unless the offeror objects without undue delay. The only condition required by paragraph (2) is that the communication containing the late acceptance show that it was sent in such circumstances that, had its transmission been normal, it would have reached the offeror in due time.

 

Illustration

 

2. The facts are the same as in Illustration 1, except that B, knowing that the normal time for transmission of letters by mail to A is three days, sends its letter of acceptance on 25 March. Owing to a strike of the postal service in A’s country the letter, which shows the date of its mailing on the envelope, only arrives on 3 April. B’s acceptance, though late, is nevertheless effective unless A objects without undue delay.

 

3. The facts are the same as in Illustration 1, except that B, after receiving A’s offer, accepts it on 30 March by e-mail. Due to technical problems at A’s server, the e-mail reaches A only on 1 April. B’s acceptance, though late, is nevertheless effective unless A objects without undue delay.

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