The Research on the Commercial Letter of Confirmation－focus on German Law, American Law and International Uniform Contract Law Instruments
Date Issued
2012
Date
2012
Author(s)
Chen, Yu-Jen
Abstract
The commercial letter of confirmation is a conduct often used by commercial traders. By sending this kind of letter, one side of parties can confirm content of prior negotiations with the other side, or can express his intention of changing the content of the concluded contract. The conception of the commercial letter of confirmation wasn''t created by legislators, but was formed by businessmen in commercial trade fields and still persistently be developed nowadays. However, with the increase of multinational commercial trade, using the commercial letter of confirmation also brings some legal problems, which may be valuable for study of theory and practice. For example, can one side of parties conclude a contract by barely sending a commercial letter of confirmation? What is the legal effect of pure silence of addressee? If both sides of parties just append their standard terms on " their " commercial letters of confirmation, which term will gains the upper hand? Obviously, such as these problems are necessary to be in-depth studied.
In Germany, the Federal Supreme Court（der Bundesgerichtshof, BGH） had tried to build “ the theory of decisive effect of the commercial letter of confirmation ”. According to it, the commercial letters of confirmation which totally fulfill the conditions given by BGH, will have decisive effect, which means both sides of parties, especially the silent one, may be bounded by the effect of conclusion or alteration of contracts. Besides, BGH has always adopted “ the last shot theory ” to solve the “ conflicting terms ” problem in cases. Similarly, regulations of the UCC of America and international uniform contract law instruments such as CISG, PICC, PECL, DCFR have already showed the trend of broadening recognition of conclusion of contracts, some international uniform contract law instruments have even often made judgments with the key point that whether the content of a commercial letter of confirmation “ materially alters ” or “ significantly deviates ” the original agreements. When talking to the issue of " the content of contract ", oppositely, there are different opinions, including the famous “ knock out rule ”. As we know, there are a lot of businessmen who have undertaken national commercial trade in Taiwan and will inevitably face the above-mentioned problems. As the result, both of law scholars and judges in Taiwan must try to find a new consideration of commercial trade and commercial contract and, most of all, establish a complete theory, which can be the basis of actual resolutions.
Subjects
the commercial letter of confirmation
the mirror-image rule
decisive effect
conflicting terms
the last shot theory
the knock out rule
Type
thesis
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