LATE ACCEPTANCE DELAY IN TRANSMISSION

UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS FORMATION AND AUTHORITY OF AGENTS MANNER OF FORMATION : OFFER AND ACCEPTANCE ACCEPTANCE

Art. 2.1.9 UNIDROIT Principles

ARTICLE 2.1.9

(Late acceptance. Delay in transmission)

(1) A late acceptance is nevertheless

effective as an acceptance if without undue delay

the offeror so informs the offeree or gives notice

to that effect.

(2) If a communication containing a late

acceptance shows that it has been sent in such

circumstances that if its transmission had been

normal it would have reached the offeror in due

time, the late acceptance is effective as an

acceptance unless, without undue delay, the

offeror informs the offeree that it considers the

offer as having lapsed.

COMMENT

1. Late acceptance normally ineffective

According to the principle laid down in Art. 2.1.7 for an

acceptance to be effective it must reach the offeror within the time

fixed by the latter or, if no time is fixed, within a reasonable time.

This means that as a rule an acceptance which reaches the offeror

thereafter is without effect and may be disregarded by the offeror.

2. Offeror may nevertheless “accept” late acceptance

Para. (1) of this article, which corresponds to Art. 21 CISG, states

that the offeror may nevertheless consider a late acceptance as having

arrived in time and thus render it effective, provided that the offeror

“without undue delay [...] so informs the offeree or gives notice to that

effect”. If the offeror takes advantage of this possibility, the contract is

to be considered as having been concluded as soon as the late

acceptance reaches the offeror and not when the offeror informs the

offeree of its intention to consider the late acceptance effective.

I l l u s t r a t i o n

1. A indicates 31 March as the deadline for acceptance of its offer.

B’s acceptance reaches A on 3 April. A, who is still interested in the

contract, intends to “accept” B’s late acceptance, and immediately

informs B of its intention. Notwithstanding the fact that this notice

only reaches B on 5 April the contract is concluded on 3 April.

Formation Art. 2.1.10

3. Acceptance late because of delay in transmission

As long as the acceptance is late because the offeree did not send it

in time, it is natural to consider it as having no effect unless the offeror

expressly indicates otherwise. The situation is different when the

offeree has replied in time, but the acceptance reaches the offeror late

because of an unexpected delay in transmission. In such a case the

reliance of the offeree on the acceptance having arrived in time

deserves protection, with the consequence that the late acceptance is

considered to be effective unless the offeror objects without undue

delay. The only condition required by para. (2) is that the

communication containing the late acceptance shows that it has been

sent in such circumstances that, had its transmission been normal, it

would have reached the offeror in due time.

I l l u s t r a t i o n

2. The facts are the same as in Illustration 1, the difference being

that B, knowing that the normal time for transmission of letters by

mail to A is three days, sends its letter of acceptance on 25 March.

Owing to a strike of the postal service in A’s country the letter,

which shows the date of its mailing on the envelope, only arrives

on 3 April. B’s acceptance, though late, is nevertheless effective

unless A objects without undue delay.

3. The facts are the same as in Illustration 1, the difference being

that B, after receiving A’s offer, accepts it on 30 March by e-mail.

Due to technical problems at A’s server, the e-mail reaches A only

on 1 April. B’s acceptance, though late, is nevertheless effective

unless A objects without undue delay.