If a writing which is sent within a reasonable time after the conclusion of the contract and which purports to be a confirmation of the contract contains additional or different terms, such terms become part of the contract, unless they materially alter the contract or the recipient, without undue delay, objects to the discrepancy.
1. “Writings in confirmation”
This Article deals with the situation where a contract has already been concluded either orally or by the exchange of written communications limited to the essential terms of the agreement, and one party subsequently sends the other a document intended simply to confirm what has already been agreed upon, but which in fact contains terms which are additional to or different from those previously agreed by the parties. In theory, this situation clearly differs from that envisaged in Article 2.1.11, where a contract has not yet been concluded and the modifying terms are contained in the offeree’s purported acceptance. Yet, since in practice it may be very difficult if not impossible to distinguish between the two situations, this Article adopts with respect to modifying terms contained in a writing in confirmation the same solution as that envisaged in Article 2.1.11. In other words, just as for the modifications contained in an acknowledgement of order, it is provided that terms additional to or different from those previously agreed by the parties contained in a writing in confirmation become part of the contract, provided that they do not “materially” alter the agreement and that the recipient of the document does not object to them without undue delay.
It goes without saying that also in the context of writings in confirmation the question of which of the new terms “materially” alter the terms of the previous agreement can be answered definitely only in the light of the circumstances of each individual case. On the other hand, this Article clearly does not apply to cases where the party sending the writing in confirmation expressly invites the other party to return it duly counter-signed for acceptance. In such circumstances it is irrelevant whether the writing contains modifications, and if so whether or not these modifications are “material” since the writing must in any case be expressly accepted by the addressee if there is to be a contract.
1. A orders by telephone a machine from B, who accepts the order. The following day A receives a letter from B confirming the terms of their oral agreement but adding that B wishes to be present at the testing of the machine on A’s premises. The additional term is not a “material” modification of the terms previously agreed between the parties and will therefore become part of the contract unless A objects without undue delay.
2. The facts are the same as in Illustration 1, except that the modification contained in B’s writing in confirmation consists in the addition of an arbitration clause. Unless the circumstances indicate otherwise such a clause amounts to a “material” modification of the terms previously agreed between the parties with the result that it will not become part of the contract.
3. A orders by e-mail a stated quantity of wheat and B accepts immediately by e-mail. Later on the same day B sends a letter to A confirming the terms of their agreement but adding an arbitration clause which is standard practice in the commodity sector concerned. Since A cannot be surprised by such a clause, it is not a “material” modification of the terms previously agreed and, unless A objects without undue delay, the arbitration clause becomes part of the contract.
2. Writing in confirmation to be sent within a reasonable time after conclusion of the contract
The rule according to which silence on the part of the recipient amounts to acceptance of the content of the writing in confirmation, including any non-material modifications of the terms previously agreed, presupposes that the writing is sent “within a reasonable time after the conclusion of the contract”. Any writing of this kind sent after a period of time which, in the circumstances, appears to be unreasonably long, loses any significance, and silence on the part of the recipient may therefore no longer be interpreted as acceptance of its content.
For the purposes of this Article, the term “writing in confirmation” is to be understood in a broad sense, i.e. as covering also those cases where a party uses the invoice or another similar document relating to performance to specify the conditions of the contract concluded either orally or by informal correspondence, provided that such use is customary in the trade sector and/or country concerned.