CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… formation rules are similar to those found in the CISG, the CISG could be used as a guide. The CISG does require an offer to be “sufficiently definite” but, unlike CESL, it defines sufficiently definite as an offer that “indicates the goods” and “expressly or implicitly fixes or makes provision for determining the quantity and price.” 70 Thus, the argument that CESL provisions provide more clarity than those in the CISG proves to be false in this case. Furthermore, since the CISG offer rule only requires agreement on these few items, the broad materiality definition provided in Article 19(3) of the CISG which is identical to CESL 38(2) does not apply to contract formation. However, since CESL does not define sufficient content, a court may be tempted to use the broad definition of material terms found in CESL Article 38(2). This may not be much of a concern in B2C contracting since the seller usually provides a relatively detailed contract that would likely meet the “sufficient content” threshold. However, in B2B transactions this could be a serious flaw of CESL. B2B sales contract formation may be highly informal often done over the phone or through the Internet and e-mailing which would make it more likely to not include agreement on many terms that courts may conclude are required to meet the sufficient content standard. These forms of informal business contracting would most likely not include terms that would be determined as material under the definition found in CESL Article 38(2). Article 38 primarily deals with the issue of the exchange of forms (common in B2B transactions) where the forms have conflicting terms. This issue is discussed next. 3.6.2 Battle of the Forms A major disappointment in the formation area is CESL’s adoption of the CISG’s battle of forms rules. CESL Article 38 makes the same mistake as the CISG’s Article 19 in providing a definition of materiality. 71 Article 38 deals with the issue of when an acceptance contains additional or different terms than the offer. This leads to two questions: (1) has a contract been formed if the offer and acceptance contain varying terms? (2) if a contract is formed, what are the terms of the contract? Before proceeding, a comparison with the American UCC will be helpful. First, the UCC makes it very easy to enter a contract. Other than requiring a writing for sales of goods for 500 USD 72 or more (of which there are numerous exceptions), it simply requires a general intent to enter a contract. Regarding definiteness or agreement on material terms it states “even though one or more terms are left open a contract does not fail for indefiniteness if the parties intended to make a contract.” 73 In the battle of forms scenario (modified acceptance), the UCC, CISG, and CESL agree that when there are additional or varying terms in an acceptance a contract is still formed unless

70 CISG, Article 14(1). 71 CESL, Article 38 2. 72 UCC Section 2-201. 73 UCC Section 2-204(3).

227