Article posted on 12 February 2021 14:31
The language of general terms and conditions under the Vienna Sales Convention (CISG)
If the Vienna Sales Convention (CISG) applies to a purchase agreement (read this blog for the question of when this is the case), this means that the buyer and seller are located in different countries. In most cases, the buyer and seller speak different languages. One or both of the parties declares its general terms and conditions applicable to the purchase agreement. The question then arises in which language this should be done.
Vienna Sales Convention
Suppose that a Dutch buyer enters into an agreement with a Spanish seller and that the Vienna Sales Convention applies. Parties communicate in English. The Spanish seller provides a proposal in English and the Dutch buyer sends a confirmation in English. The Dutch buyer does this on its stationery (whether or not scanned by mail). Its letterhead contains a reference in Dutch to his general purchasing conditions. The Dutch buyer therefore wishes to declare its general purchase conditions applicable. The Spanish seller does not respond to the confirmation, but ships the goods. Subsequently, a dispute arises. Do the general purchase conditions of the Dutch buyer apply?
In this blog I will not deal with the question which national law must be considered in respect which general terms and conditions apply. If you want to read more about this, you can read this blog. If you want to know whether you should make the terms and conditions available, you can read more about this in this blog.
General terms and conditions, in which language?
This blog focuses on the question of whether it is relevant in which language a party refers to its general terms and conditions. In the above scenario, the parties communicated in English. The buyer's stationery, with the reference to the general purchase conditions as pre-printed text, is in Dutch. Is this a valid reference?
The simple answer is: no.
The CISG Advisory Council Opinion No. 13 states in black letter rule No. 6.2: “They [the reference to the general terms and conditions] are available in a language that the other party could reasonably be expected to understand. Such a language includes the language of the negotiated part of the contract, the negotiations or the language ordinarily used by that party.”
The reference to the general terms and conditions must therefore be made in the language that the other (receiving) party understands or in the language of the negotiations or the contract. In our example, the Dutch buyer should have translated the reference to its general terms and conditions into English.
If not the Vienna Sales Convention, but Dutch law had been applicable to the case, the result would probably have been different. The Supreme Court does not require that in international cases the reference to the general terms and conditions has been drawn up in the language of the negotiations, the contract or a language that the other party understands.
If you like to learn more about general terms and conditions under the Vienna Sales Convention? Please feel free to contact Kristina Adam.