THE BREAKTHROUGH OF MIRROR IMAGE RULE UNDER THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND CHINESE CONTRACT LEGISLATION
|
INTRODUCTION 4
CHAPTER 1. The Battle of the Forms 10
§ 1. Origin of the Battle of the Forms 10
§ 1.1. Formation of A Contract 10
§ 2. The Mirror Image Rule and its Breakthrough 15
§ 2.1.The Concept and Origin of the Mirror Image Rule 15
§ 2.2. A Precedent of the Mirror Image Rule 16
§ 2.3. The modern dilemma of the Mirror Image Rule 18
§ 3. The Mirror Image Rule, The Last-shot Rule And The
Knockout Rule 23
CHAPTER 2. Legislative Breakthroughs of the Mirror Image Rule in the United Nations Convention on Contracts for the International Sale
ofGoods(CISG) 27
§ 1. Scope of § 19 of the CISG. 30
§ 2. Resolution of the Battle of the Formats Under the CISG. 32
CHAPTER 3. Legislative Breakthroughs of the Mirror Image Rule in
the US and Germany 41
§ 1. Provisions in the United States Uniform Commercial Code
(UCC) andBreakthrough. 42
§ 1.1. Provisions in § 2-207 of the UCC 43
§ 1.2. Current UCC§ 2-207 As Amended in 2003 54
§ 2. Provisions in the German Civil Code (GCC) andBreakthrough58
§ 2.1. Last-Word Rule - Traditional Use of German Law 59
§ 2.2. A Change in the Theoretical Basis 60
§ 2.3. The Modern View. 64
CHAPTER 4. Research on Chinese Contract Legislation with Case
Studies and Suggestions 65
§ 1. Overview of Current Status of Chinese Contract Legislation65
§ 1.1. Contract Law ofthe People's Republic ofChina (1999)
and Related Judicial Interpretations 65
§ 1.2. Provisions of § 488 of the Civil Code of the People's
Republic of China 77
§ 2. Comparative Analysis on Legal Practice and Suggestions for
Amendments 78
§ 2.1. Distinguishing between a Battle of Forms And a General
Contract Dispute 80
§ 2.2. Knock-out Rule to fill the gap 82
CONCLUSION. 85
LIST OF ABBREVIATIONS AND NOTATION CONVENTIONSZIL
LIST OF LITERATURE 87
CHAPTER 1. The Battle of the Forms 10
§ 1. Origin of the Battle of the Forms 10
§ 1.1. Formation of A Contract 10
§ 2. The Mirror Image Rule and its Breakthrough 15
§ 2.1.The Concept and Origin of the Mirror Image Rule 15
§ 2.2. A Precedent of the Mirror Image Rule 16
§ 2.3. The modern dilemma of the Mirror Image Rule 18
§ 3. The Mirror Image Rule, The Last-shot Rule And The
Knockout Rule 23
CHAPTER 2. Legislative Breakthroughs of the Mirror Image Rule in the United Nations Convention on Contracts for the International Sale
ofGoods(CISG) 27
§ 1. Scope of § 19 of the CISG. 30
§ 2. Resolution of the Battle of the Formats Under the CISG. 32
CHAPTER 3. Legislative Breakthroughs of the Mirror Image Rule in
the US and Germany 41
§ 1. Provisions in the United States Uniform Commercial Code
(UCC) andBreakthrough. 42
§ 1.1. Provisions in § 2-207 of the UCC 43
§ 1.2. Current UCC§ 2-207 As Amended in 2003 54
§ 2. Provisions in the German Civil Code (GCC) andBreakthrough58
§ 2.1. Last-Word Rule - Traditional Use of German Law 59
§ 2.2. A Change in the Theoretical Basis 60
§ 2.3. The Modern View. 64
CHAPTER 4. Research on Chinese Contract Legislation with Case
Studies and Suggestions 65
§ 1. Overview of Current Status of Chinese Contract Legislation65
§ 1.1. Contract Law ofthe People's Republic ofChina (1999)
and Related Judicial Interpretations 65
§ 1.2. Provisions of § 488 of the Civil Code of the People's
Republic of China 77
§ 2. Comparative Analysis on Legal Practice and Suggestions for
Amendments 78
§ 2.1. Distinguishing between a Battle of Forms And a General
Contract Dispute 80
§ 2.2. Knock-out Rule to fill the gap 82
CONCLUSION. 85
LIST OF ABBREVIATIONS AND NOTATION CONVENTIONSZIL
LIST OF LITERATURE 87
The Mirror Image Rule is a well-established common law concept that is generally acknowledged in both the civil and common law systems.1 As social relations have changed, however, the historical backdrop of modern contract law has drastically transformed. The prevalence of industrial mass production and mass sales has increased, as has the use of form contracts, and the natural desire of the parties to the transaction to maximise their own interests will inevitably lead to conflicts between form contracts. The Battle of the Forms has become a prominent topic in the system of contract law. The Battle of the Forms has developed as an important topic within the contractual law system. In certain cases, the old Mirror Image Rule may result in the establishment of no contract or a contract formed unilaterally on the conditions of one party, hindering the transaction or producing an unfavourable outcome.2 Due to the significance of the Battle of the Forms, international law has permitted its settlement. Multiple international harmonisation papers already address the Battle of the Forms as the international harmonisation process accelerates.3
When seen through the lens of the rule of law, the market is a collection of contracts.4 Globally, the outcomes of all types of trade and investment activities are primarily articulated in the form of contracts, in which the meaning of the parties to the transaction is regulated by the contractual agreement acknowledged by the legal system.5
In every form of contract, the meaning of the parties to the transaction is determined by the contractual agreement recognised by the legal system, which determines the parameters of the contract and satisfies contractual duties. However, the economic climate is continuously evolving, and there are several chances for change between the time an offer is made and when the offeree accepts it. In addition, an overemphasis on the consistency of contractual substance necessarily increases the function of monitoring performance on both sides of the transaction, resulting in the extreme phenomena of over-reinforcing obligations. In practise, if the contract strictly adheres to the standard of a high degree of consistency in the offer and promise, it is necessary to repeatedly negotiate the offer and promise, which will inevitably lead to the formation of the contract indefinitely backwards, the signing of the contract into repeated negotiations, and will undoubtedly increase the risk of defeating the purpose of the contract.6
This mirror-image criterion in contract formation is intended to demand that the formalistic intrinsic endowment of an offer and a commitment be equal, thus jeopardising contract formation. In this regard, the United Nations Convention on Contracts for the International Sale of Goods has responded flexibly to the application of the mirror rule in contract formation by expanding the scope of application of the Convention,7 lowering the requirement of content consistency between offer and acceptance, and strengthening the understanding of the relationship between offer and acceptance in contract law through legislative techniques such as supplementary provisions. The helpful legislative effort of the CISG has, to some degree, overcome the contradiction between contractual law and transaction time. The Mirror Image Rule in contract creation derives from the common law contractual system and represents the goal to seek total consent and exact representation of the promise based on the parties' shared reliance interests.....
When seen through the lens of the rule of law, the market is a collection of contracts.4 Globally, the outcomes of all types of trade and investment activities are primarily articulated in the form of contracts, in which the meaning of the parties to the transaction is regulated by the contractual agreement acknowledged by the legal system.5
In every form of contract, the meaning of the parties to the transaction is determined by the contractual agreement recognised by the legal system, which determines the parameters of the contract and satisfies contractual duties. However, the economic climate is continuously evolving, and there are several chances for change between the time an offer is made and when the offeree accepts it. In addition, an overemphasis on the consistency of contractual substance necessarily increases the function of monitoring performance on both sides of the transaction, resulting in the extreme phenomena of over-reinforcing obligations. In practise, if the contract strictly adheres to the standard of a high degree of consistency in the offer and promise, it is necessary to repeatedly negotiate the offer and promise, which will inevitably lead to the formation of the contract indefinitely backwards, the signing of the contract into repeated negotiations, and will undoubtedly increase the risk of defeating the purpose of the contract.6
This mirror-image criterion in contract formation is intended to demand that the formalistic intrinsic endowment of an offer and a commitment be equal, thus jeopardising contract formation. In this regard, the United Nations Convention on Contracts for the International Sale of Goods has responded flexibly to the application of the mirror rule in contract formation by expanding the scope of application of the Convention,7 lowering the requirement of content consistency between offer and acceptance, and strengthening the understanding of the relationship between offer and acceptance in contract law through legislative techniques such as supplementary provisions. The helpful legislative effort of the CISG has, to some degree, overcome the contradiction between contractual law and transaction time. The Mirror Image Rule in contract creation derives from the common law contractual system and represents the goal to seek total consent and exact representation of the promise based on the parties' shared reliance interests.....
The Mirror Image Rule is a common law principle with a long history. According to this regulation, a genuine acceptance must match the terms of the offer and cannot be contradictory to it in any manner. The Mirror Image Rule has played a significant part in contract proceedings for a long time as a conventional rule of common law and civil law. However, the social background of contemporary contract law has undergone a profound transformation.97
Form contracts are favoured and commonly employed in contemporary commercial activity. Faced with form contracts, particularly for large-scale transactions between businesses via document exchanges, the Mirror Image Rule has progressively shown its drawbacks and is no longer suited to the evolution and needs of contemporary contract law. In response to this predicament, the Last-shot Rule was developed. However, the Last-shot Rule does not diverge from the Mirror Image Rule and continues to be an archaic solution. Even when the contract is constructed in accordance with the Last-shot Rule, there are still several issues. A breakthrough is necessary. Both the Mirror Image Rule and the Last-shot Rule do not match the demands of the present contractual legal system. The Uniform Commercial Code (UCC) was the first to accomplish this legislative breakthrough, with a considerable
97 Ingeborg Schwenzer, Pascal Hachem & Christ Opher Kee, Global Sales and Contract Law, Oxford University Press,2012, -P.165.
deviation from the evolving typical mirror image requirement in 2-207. This section examines the most often quoted version of the original UCCs Section 2-207, as well as the current form after substantial revisions to the 2003 sales chapter. In the German legal system, there has been a progressive shift away from the Mirror Image Rule. Early rulings of the German Federal Court of Justice used the Last Shot Rule to settle form-clause disagreements. This conventional method, however, was progressively overturned by the law, culminating in the Knock-out Rule. In terms of globally harmonised law, international bodies have been active in drafting internationally harmonised legal documents with the aim of resolving international trade disputes via legal means. In order to provide legal remedies for international trade conflicts, international organisations have been engaged in producing international uniform legal instruments pertaining to international uniform law. In contract law, the CISG is the principal representative of globally harmonised legal instruments. The UN Convention on the International Sale of Goods is an example of a legal document that violates the Mirror Image Rule. The Chinese Contract Law was promulgated and implemented in 1999, including the CISG concept of offer and promise. The Supreme People's Court's Interpretation II on Certain Issues The first chapter relating to the application of the contract law of the People's Republic of China (the Judicial Interpretation II), which has been in effect from the beginning, addresses the establishment of contracts. The Judicial Interpretation II is more forgiving in determining the formation of a contract than the Contract Law, and it is more suited to current economies of scale and mass manufacturing transactions than the Mirror Image Rule....
Form contracts are favoured and commonly employed in contemporary commercial activity. Faced with form contracts, particularly for large-scale transactions between businesses via document exchanges, the Mirror Image Rule has progressively shown its drawbacks and is no longer suited to the evolution and needs of contemporary contract law. In response to this predicament, the Last-shot Rule was developed. However, the Last-shot Rule does not diverge from the Mirror Image Rule and continues to be an archaic solution. Even when the contract is constructed in accordance with the Last-shot Rule, there are still several issues. A breakthrough is necessary. Both the Mirror Image Rule and the Last-shot Rule do not match the demands of the present contractual legal system. The Uniform Commercial Code (UCC) was the first to accomplish this legislative breakthrough, with a considerable
97 Ingeborg Schwenzer, Pascal Hachem & Christ Opher Kee, Global Sales and Contract Law, Oxford University Press,2012, -P.165.
deviation from the evolving typical mirror image requirement in 2-207. This section examines the most often quoted version of the original UCCs Section 2-207, as well as the current form after substantial revisions to the 2003 sales chapter. In the German legal system, there has been a progressive shift away from the Mirror Image Rule. Early rulings of the German Federal Court of Justice used the Last Shot Rule to settle form-clause disagreements. This conventional method, however, was progressively overturned by the law, culminating in the Knock-out Rule. In terms of globally harmonised law, international bodies have been active in drafting internationally harmonised legal documents with the aim of resolving international trade disputes via legal means. In order to provide legal remedies for international trade conflicts, international organisations have been engaged in producing international uniform legal instruments pertaining to international uniform law. In contract law, the CISG is the principal representative of globally harmonised legal instruments. The UN Convention on the International Sale of Goods is an example of a legal document that violates the Mirror Image Rule. The Chinese Contract Law was promulgated and implemented in 1999, including the CISG concept of offer and promise. The Supreme People's Court's Interpretation II on Certain Issues The first chapter relating to the application of the contract law of the People's Republic of China (the Judicial Interpretation II), which has been in effect from the beginning, addresses the establishment of contracts. The Judicial Interpretation II is more forgiving in determining the formation of a contract than the Contract Law, and it is more suited to current economies of scale and mass manufacturing transactions than the Mirror Image Rule....
