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Mirror image rule

The mirror image rule is a foundational doctrine in common law contract formation that requires an acceptance of an offer to be an exact and unconditional match to the offer's terms, without any modifications, additions, or qualifications, for a binding agreement to arise.^[1] Originating in English common law, the rule emerged to ensure clarity and mutual assent in negotiations, mandating that acceptance be "positive, unconditional, unequivocal and unambiguous," with any deviation treated as a counteroffer rather than acceptance.^[2] This strict standard promotes certainty in contractual relationships by preventing unintended agreements from ambiguous responses.^[1] Under traditional common law, the rule applies rigorously to transactions outside the scope of the Uniform Commercial Code (UCC), such as contracts for services or real estate, meaning even minor changes in price, quantity, or delivery terms can nullify acceptance and restart negotiations.^[1] However, for contracts involving the sale of goods, the UCC § 2-207 provides a significant exception, allowing a contract to form through acceptance that includes additional or different terms, unless the acceptance is expressly made conditional on assent to those changes, thereby addressing practical challenges in commercial dealings known as the "battle of the forms."^[3] This evolution reflects a shift from rigid formalism to greater flexibility in modern commerce, while preserving the core principle of mutual agreement in non-UCC contexts.^[2]

Fundamental Concepts

Definition and Requirements

The mirror image rule is a fundamental principle in common law contract formation, stipulating that an acceptance must constitute an unconditional and exact assent to all terms of the offer, without any modifications, additions, or deviations, in order to create a binding agreement.^[1] This doctrine ensures that the offeree's response precisely mirrors the offeror's proposal, preserving the integrity of the original terms proposed.^[4] For an acceptance to satisfy the mirror image rule, it must be unequivocal, absolute, unconditional, and properly communicated to the offeror, with no variance in essential elements such as price, quantity, or performance obligations.^[2] Any deviation, even if minor, transforms the response into a rejection of the original offer and initiates a new counteroffer by the offeree, which then requires acceptance by the original offeror to form a contract.^[5] For example, if a seller offers to deliver 100 units of a product for $1,000 with payment due upon delivery, a buyer's response agreeing to the same price, quantity, and payment terms would constitute valid acceptance under the rule.^[6] In contrast, if the buyer replies by accepting but requesting payment in installments, this alteration rejects the offer and serves as a counteroffer.^[4] The rule underscores the offeror's control over the contract terms, positioning them as the master of the offer; the offeree holds no power to impose changes and must either accept the proposal as presented or negotiate anew through a counteroffer.^[1] This structure maintains clarity in negotiations by requiring explicit agreement on all conditions before enforceability arises.^[7]

Rationale and Implications

The mirror image rule serves as a foundational principle in contract law, designed to promote certainty and predictability in the formation of agreements by requiring that an acceptance precisely matches the terms of the offer without any modifications or additions. This strict requirement prevents the implication of unintended changes, ensuring that parties' outward expressions of intent align exactly to form a binding contract. Rooted in the objective theory of contracts, the rule judges intent based on what a reasonable person would understand from the manifestations of the parties, rather than their unexpressed subjective beliefs, thereby facilitating reliable commercial transactions.^[8]^[9] By enforcing this exactitude, the rule implies that no enforceable contract arises unless there is unequivocal mutual assent to identical terms, which can terminate the original offer upon the submission of a counteroffer and shift negotiating power back to the offeror. This dynamic encourages clear communication during negotiations, as any deviation risks the loss of the initial proposal and potential disputes over whether an agreement exists. In practice, it underscores the importance of precise drafting and acceptance to avoid unintended rejections, particularly in formal bargaining scenarios.^[2]^[9] The broader effects of the rule include a reduction in litigation over ambiguous terms, as it prioritizes manifested agreement over subjective interpretations, contrasting sharply with approaches that might probe deeper into parties' internal understandings. This emphasis on objective manifestations helps standardize contract enforcement, minimizing the risk of courts imposing unintended obligations.^[8]^[9]

Historical Development

Origins in Common Law

The mirror image rule emerged within the English common law tradition during the 19th century as a core component of contract formation doctrines, requiring that an acceptance precisely match the terms of the offer to form a binding agreement. This principle built upon earlier medieval concepts of bargain and sale, where informal exchanges sufficed for simple transactions under the writ of debt or covenant, evolving through the 16th and 17th centuries with the rise of the action of assumpsit to emphasize mutual assent in enforceable promises.^[10]^[11] Key milestones in its development occurred amid the Industrial Revolution, when expanding commercial activities demanded greater certainty in agreements to facilitate trade and reduce disputes in increasingly complex markets. By the early 1800s, English courts began to formalize stricter requirements for offer and acceptance, influenced by equitable principles of fairness but primarily grounded in the common law courts' emphasis on objective manifestations of intent. This period saw the rule's crystallization as a judge-made doctrine, without reliance on specific statutes, to address the limitations of prior informal practices that often led to ambiguity in assent.^[12]^[13] Prior to 1840, early judicial decisions focused on basic notions of assent in contract disputes but lacked the precision that later defined the mirror image rule, reflecting a transitional phase from ad hoc enforcement to a more systematic framework. The doctrine's evolution underscored a shift from reliance on oral or customary agreements in pre-industrial society to rigorous formalities that prioritized written or explicit terms, ensuring enforceability in an era of rapid economic growth.^[12]^[11]

Key Foundational Cases

The landmark case of Hyde v. Wrench (1840) established the core principle of the mirror image rule in English contract law. In this dispute, the defendant, Wrench, offered to sell his farm to the plaintiff, Hyde, for £1,000. Hyde responded with a counteroffer of £950, which Wrench rejected. Hyde then attempted to accept the original £1,000 offer, but Wrench refused to proceed. The Court of Chancery, presided over by Lord Langdale, ruled that no binding contract existed, holding that Hyde's counteroffer had effectively rejected and terminated the original offer, rendering it incapable of revival.^[14]^[15] This decision underscored that any deviation from the offer's terms constitutes a rejection, requiring a fresh offer for agreement.^[16] Judicial reasoning in these foundational cases emphasized an objective interpretation of parties' manifestations, focusing on what a reasonable person would understand from the communications rather than subjective intentions. This approach, evident in Hyde v. Wrench, served to eliminate ambiguity and ensure certainty in contract formation by treating any non-mirroring response as a rejection.^[17] Courts thereby positioned themselves as enforcers of clear assent, avoiding disputes over unexpressed meanings.^[18] These early English decisions profoundly influenced the development of the mirror image rule, establishing binding precedents that were exported to all common law jurisdictions through the British Empire's legal traditions.^[19] Their emphasis on precise matching in explicit acceptances became a cornerstone for contract law stability across colonies and successor states.^[17]

Applications in Common Law Jurisdictions

England and Wales

In English and Welsh law, the mirror image rule remains a cornerstone of common law contract formation, requiring that an acceptance must exactly match the terms of the offer to create a binding agreement, with any deviation constituting a counter-offer rather than acceptance.^[20] This principle ensures certainty in negotiations by preventing implied modifications, and it applies unless overridden by statute.^[21] Although the term "mirror image rule" is not commonly used in judicial decisions, the underlying requirement for unequivocal acceptance is central to determining whether a contract exists.^[22] The rule's application is illustrated in key modern cases emphasizing strict adherence to precise terms. In Gibson v Manchester City Council UKHL 6, the House of Lords held that no contract formed where the council's letter inviting a formal application was merely an invitation to treat, and the claimant's response did not constitute an unconditional acceptance mirroring any offer, underscoring that inquiries or conditional replies fail to bind parties.^[22] Similarly, in Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd 1 WLR 401, the Court of Appeal applied the mirror image principle in a "battle of the forms" scenario, ruling that the buyer's order with differing terms rejected the seller's initial quotation, and the seller's subsequent acknowledgment without qualification accepted the buyer's terms exactly, forming the contract on those conditions while rejecting the seller's price variation clause.^[20] These decisions affirm the rule's role in initial contract formation, even amid conflicting documents. The mirror image rule governs all contracts in England and Wales under common law, including sales of goods, unless specific legislation alters formation requirements. For instance, while the Sale of Goods Act 1979 implies terms such as satisfactory quality and fitness for purpose once a contract is formed (ss 14-15), it does not codify acceptance rules, leaving the exact mirroring of offer and acceptance to common law principles.^[23] Statutes like the Consumer Rights Act 2015 may impose additional protections for consumer contracts but do not displace the core formation doctrine. Post-Brexit, the rule has seen no substantive changes, maintaining continuity with pre-existing common law traditions, as English contract law was not significantly derived from EU directives in this area.^[24] EU influences on consumer contracts via directives like the Unfair Terms in Consumer Contracts Regulations were retained and adapted into UK law, but formation fundamentals remain unaltered. Electronic contracts adhere to the same mirror image requirements, with the Electronic Commerce (EC Directive) Regulations 2002 recognizing electronic communications as valid for offers and acceptances provided they mirror the offer precisely, without altering the common law's strictness.

Australia

In Australian contract law, the mirror image rule forms a core principle of offer and acceptance, requiring that an acceptance must precisely mirror the terms of the offer without modification to create a binding agreement.^[25] This doctrine, adopted from English common law, applies uniformly across the nation through judicial interpretation by the High Court of Australia, as there is no federal codification of general contract formation rules.^[25] State courts, including those in New South Wales, adhere strictly to this framework, treating any deviation in response to an offer as a counteroffer that rejects the original proposal and reverses the roles of offeror and offeree.^[26] A seminal High Court decision illustrating the rule's application to preliminary agreements is Masters v Cameron (1954), where the court delineated three scenarios for agreements "subject to contract."^[27] In the third scenario—applicable to the case—no binding contract arises until a formal document is executed and accepted exactly as proposed, emphasizing that preliminary understandings require unequivocal, unmodified assent to be enforceable.^[27] The ruling underscores how counteroffers or conditional responses can prevent contract formation by necessitating exact alignment on all terms.^[27] The rule's strict enforcement extends to applications in New South Wales and other states, where courts consistently hold that alterations to proposed terms constitute rejections rather than acceptances.^[28] While the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) imposes protections against unfair terms and misleading conduct in consumer contracts, it does not alter the fundamental mirror image requirement for formation, leaving the core common law principle intact. In commercial disputes, the mirror image rule plays a pivotal role by resolving ambiguities in negotiations, often determining whether parties have reached consensus.^[29] Twentieth- and twenty-first-century cases, such as Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988), illustrate that acceptance can be inferred from conduct where the offeree, with knowledge of the terms, proceeds to take the benefit of the offer, forming a binding contract even without explicit agreement to the precise proposal.^[30] This judicial consistency highlights the rule's enduring emphasis on explicit, unmodified acceptance in Australian jurisprudence.^[30]

Canada

In Canada's nine common law provinces and three territories, the mirror image rule governs contract formation, requiring that an acceptance precisely match the offer's terms without any deviation to create a binding agreement. Any alteration, addition, or omission in the acceptance is treated as a counteroffer, which rejects the original offer and invites a new response from the offeror. This strict application upholds the English common law tradition, emphasizing mutual assent and preventing unintended obligations from ambiguous responses.^[31]^[32] Canadian courts, including the Supreme Court of Canada, have affirmed this principle in key cases. For instance, in Schiller v. Fisher, 1 S.C.R. 593, the Court analyzed a series of letters between parties to determine whether an acceptance mirrored the offer for the sale of land, ultimately finding no contract because the acceptance was not communicated to the offeror, despite the buyer's agent initialling the agreement. These decisions underscore the rule's role in ensuring clarity and certainty in contractual intent across common law jurisdictions.^[33] Quebec, as a civil law jurisdiction, operates under the Civil Code of Québec, where contract formation centers on the parties' consent manifested through offer and acceptance. While Article 1385 requires acceptance to correspond substantially to the offer, with modifications treated as new offers, the civil law framework incorporates broader consent rules that allow greater flexibility, such as implied acceptance by conduct or accommodations for non-substantial variances that reflect a meeting of the minds. This contrasts with the rigid common law approach by prioritizing overall agreement over verbatim precision.^[34] At the national level, federal contracts adhere to common law principles of offer and acceptance, including the mirror image rule, as federal jurisdiction draws from English common law traditions. Efforts toward harmonization, led by the Uniform Law Conference of Canada, seek to align common and civil law rules across provinces but have not resulted in a uniform code for contract formation, preserving jurisdictional distinctions.^[35]^[36]

United States Specifics

Traditional Common Law Application

In the United States, the traditional common law application of the mirror image rule mandates that an acceptance must precisely mirror the terms of the offer in all material respects to form a binding contract, with any deviation—such as added conditions, altered prices, or modified quantities—treated as a rejection of the offer and a new counteroffer by the offeree.^[1] This principle, rooted in the objective theory of contracts, ensures mutual assent by requiring unequivocal agreement on the exact bargain proposed, without implying acceptance through partial performance or conditional responses unless explicitly authorized by the offer. The rule originated in English common law, as seen in foundational cases like Hyde v. Wrench (1840), and has been adopted across U.S. jurisdictions in non-commercial settings. This strict standard governs contracts outside the Uniform Commercial Code, particularly those involving services, employment, and real estate, where no statutory flexibility allows for variances in acceptance. For instance, in service contracts, an employer's offer of employment at a specified salary and benefits must be accepted without modifications; any attempt to negotiate additional vacation time in the response would constitute a counteroffer, potentially terminating the original offer if not accepted by the employer.^[37] The American Law Institute's Restatement (Second) of Contracts § 50 codifies this by defining acceptance as "a manifestation of assent to the terms thereof, made by the offeree in a manner invited or required by the offer," emphasizing that the assent must align with the proposed bargain without alterations.^[38] A representative example in real estate appears in Normile v. Miller (1985), where the North Carolina Supreme Court ruled that a prospective buyer's reply to a property seller's offer, which included new financing contingencies not present in the original terms, operated as a counteroffer rather than an acceptance, preventing contract formation under the mirror image rule. Similarly, in Fairmount Glass Works v. Crunden-Martin Woodenware Co. (1899), a Kentucky appellate court upheld contract formation only because the buyer's order exactly matched the seller's price quotation without additions or changes, underscoring the rule's requirement for precise conformity even in early industrial contexts. The implications of this rigid application are significant in litigation, as courts enforce it to promote certainty and prevent implied contracts from ambiguous responses, often resulting in no agreement unless a new offer and acceptance sequence follows the counteroffer.^[39] No additional or different terms can be incorporated into the contract without explicit mutual agreement, reinforcing the need for clear communication in negotiations for services or property.^[40] This approach prioritizes the offeror's intent and protects against unintended obligations, though it can lead to failed deals in complex transactions.^[41]

Modifications under the Uniform Commercial Code

The Uniform Commercial Code (UCC), particularly Article 2 governing the sale of goods, modifies the traditional common law mirror image rule by permitting contract formation through a definite acceptance even if it includes additional or different terms from the offer, provided the acceptance is not expressly made conditional on the offeror's assent to those terms.^[42] This approach, outlined in UCC § 2-207(1), recognizes that modern commercial practices often involve written confirmations or forms with variances that do not negate the parties' intent to be bound, contrasting with the strict requirement under common law that acceptance mirror the offer exactly. The provision aims to facilitate commerce by avoiding the failure of contracts due to minor discrepancies in documentation.^[42] Under UCC § 2-207(2), additional terms in the acceptance are treated as proposals that, between merchants, automatically become part of the contract unless the offer expressly limits acceptance to its own terms, the additions materially alter the deal, or the offeror objects within a reasonable time.^[42] This subsection distinguishes between mere confirmatory memos—sent after an oral agreement to confirm details—and true counteroffers that condition acceptance on new terms, with the former operating to form or reinforce the contract under subsection (1). For conflicting terms between forms, some courts apply the "knockout rule," under which contradictory provisions cancel each other out, leaving gaps filled by UCC default rules, course of performance, or usage of trade as per § 2-207(3).^[43] Article 2 of the UCC has been enacted in 49 states and the District of Columbia, with Louisiana adopting only select provisions and relying on its civil law tradition for sales of goods.^[44] It applies exclusively to transactions involving the sale of movable goods, leaving contracts for services, real estate, or intangible property under common law principles. Notably, while Article 2 governs formation broadly, its statute of frauds in § 2-201 requires a writing for enforceability only in sales priced at $500 or more, subject to exceptions like partial performance.^[45] Developed in the mid-20th century and widely adopted by states in the 1960s, UCC § 2-207 emerged to address the inefficiencies of the mirror image rule in an era of standardized forms and interstate trade, promoting enforceable agreements without rigid formality.^[44] In non-UCC contexts, such as common law sales, the Restatement (Second) of Contracts §§ 19 and 20 provide limited relaxation by allowing manifestation of assent through conduct rather than words alone, though without the specific mechanisms for additional terms found in the UCC.

Modern Exceptions and Comparisons

Battle of the Forms

The battle of the forms refers to a scenario in contract negotiations where parties exchange pre-printed standard forms—such as a buyer's purchase order and a seller's order acknowledgment—that contain conflicting or additional terms, challenging the strict application of the mirror image rule. Under traditional common law, the mirror image rule requires an acceptance to match the offer precisely for a valid contract to form; any deviation, even minor, would constitute a counteroffer rather than acceptance, potentially voiding the agreement despite the parties' apparent intent to deal. However, in practice, this rigidity often fails to reflect commercial realities, where businesses routinely perform without resolving every term, leading courts to infer contract formation from conduct while grappling with which terms apply.^[46] To resolve these conflicts, common law jurisdictions traditionally apply the "last shot rule," under which the terms of the most recent form sent (and not expressly rejected) before performance govern the contract, effectively treating the final document as the operative offer or acceptance. In the United States, for sales of goods, the Uniform Commercial Code § 2-207 provides a more flexible mechanism, permitting contract formation even with differing terms; additional terms between merchants become part of the contract unless they materially alter the deal, while conflicting terms are resolved through gap-fillers like agreed-upon provisions supplemented by UCC defaults. In England and Wales, the Unfair Contract Terms Act 1977 further shapes outcomes by subjecting exclusion or limitation clauses in standard forms to a reasonableness test, potentially invalidating unfair terms incorporated via the last shot or other rules, though courts may also apply a "knockout rule" to exclude mutually inconsistent provisions and imply terms from statute or conduct.^[46] This problem commonly arises in international trade disputes involving standard forms, where parties from different legal traditions exchange documents with variances in warranties, liability limits, or governing law; courts then prioritize evidence of mutual intent and performance over exact mirroring, as seen in cases under frameworks like the UN Convention on Contracts for the International Sale of Goods, which similarly adapts to form exchanges by treating minor deviations as non-material unless expressly conditional. For example, a U.S. exporter's acknowledgment form adding an arbitration clause to a European buyer's purchase order might result in a contract formed on core agreed terms, with the added clause assessed for materiality or reasonableness.^[47] The battle of the forms gained prominence as a doctrinal challenge in the mid-20th century, evolving significantly post-1970s with the expansion of global commerce and standardized documentation, which rendered the pure mirror image rule impractical for over 99% of routine transactions. Rather than rejecting the rule outright, legal systems adapted through statutory reforms like UCC § 2-207 (refined in commentary and cases during this period) and judicial shifts toward intent-based analysis, balancing certainty with commercial efficiency while preserving the rule's core emphasis on unequivocal assent.^[48]^[12]

Approaches in Other Legal Systems

In civil law systems, contract formation prioritizes the convergence of wills and adherence to good faith principles, diverging from the common law's rigid mirror image requirement. In France, the Civil Code stipulates that a contract is formed upon the offeror's receipt of the offeree's acceptance, which manifests the will to be bound by the offer (Article 1118). However, the mandatory duty of good faith in negotiation, formation, and performance (Article 1104) permits minor clarifications or non-material variations in the acceptance without automatically creating a counteroffer, as long as they do not contradict the offer's essential terms or the parties' shared intent. This approach fosters flexibility, emphasizing objective manifestations of agreement over verbatim replication.^[49]^[50] Germany's Bürgerliches Gesetzbuch (BGB) adopts a stricter stance akin to common law, mandating that acceptance precisely match the offer; any additions, limitations, or modifications render it a rejection and a new counteroffer (Section 150(2)). Yet, the broad principle of good faith (Treu und Glauben, Section 242) permeates contract interpretation and performance, allowing courts to mitigate harsh outcomes from minor deviations by considering the parties' reasonable expectations and commercial context. This integration of good faith provides interpretive leeway absent in pure mirror image doctrines, though the baseline rule remains formalistic.^[51] In international contexts, the United Nations Convention on Contracts for the International Sale of Goods (CISG) exemplifies a hybrid flexibility tailored to cross-border commerce. Article 19(1) treats a purported acceptance with material additions, limitations, or modifications as a counteroffer and rejection of the original offer. However, Article 19(2) deems replies with immaterial changes—such as those benefiting the offeror or not affecting price, quantity, or core obligations—as valid acceptances, unless the offeror promptly objects in writing or orally. Article 19(3) clarifies that additions addressing liability without explicit objection are presumed material. This framework contrasts sharply with common law strictness by accommodating minor variances to avoid failed deals in global trade, while preserving certainty through the materiality threshold.^[52] Post-colonial hybrid jurisdictions like India and Pakistan largely preserve the common law mirror image rule, inherited via the British-era Contract Act, 1872, but incorporate statutory nuances reflecting local equity considerations. In both countries, Section 7 demands that acceptance be "absolute and unqualified," exactly mirroring the proposal to form a binding promise; any qualification or variance transforms it into a counter-proposal. Judicial application, however, sometimes invokes implied good faith or reasonableness under related statutes like the Sale of Goods Act, 1930, allowing limited tweaks for commercial practicality without fully departing from the core rule. This retention underscores colonial legacies, tempered by evolving case law to address ambiguities in modern transactions.^[53]^[54] Critiques of these civil and international approaches highlight a trade-off between reduced formality and heightened risk of ambiguity. By subordinating exact mirroring to good faith or materiality assessments, civil systems like France's streamline agreements and align with relational dynamics, avoiding the common law's potential for inadvertent deal failures over trivial discrepancies. Yet, this flexibility can engender disputes over what qualifies as "immaterial" or faithful to intent, eroding predictability in high-stakes commerce where parties prefer clear boundaries. Unlike the common law's unequivocal mirror image doctrine, civil law equivalents—rooted in consensual harmony rather than formal symmetry—lack a singular rigid mechanism, prompting scholars to argue they better suit cooperative dealings but demand robust evidentiary standards to curb interpretive vagueness.^[55]^[56]

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It is not a federal law, but a uniformly adopted state law. Uniformity of law is essential in this area for the interstate transaction of business.UCC Article 2, Sales · UCC Article 1, General... · UCC Article 3, Negotiable...
[47]
2-201. Formal Requirements; Statute of Frauds. - Law.Cornell.Edu
A contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to ...
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Battle of forms in England and Wales - Contract law | CMS
Apr 24, 2018 · Under the laws of England and Wales, either the Last-Shot Rule or the Knock-Out Rule applies. Traditionally, the Last-Shot Rule applies.
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[PDF] CISG: THE “BATTLE OF THE FORMS”
➢ Disadvantages: A rigid “mirror-image” rule induces bad faith conduct by the parties, particularly in the context of highly volatile markets, e.g. should the ...
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[PDF] ESCAPE FROM THE BATTLE OF THE FORMS: KEEP IT SIMPLE ...
The sole virtue of the mirror image rule and the last shot rule, if there is one, is certainty.22 Since a contract was formed only when the parties' forms.
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French Civil Code 2016 | Trans-Lex.org
– Legislation or the contract may provide for a period for reflection, which is a period within which the offeree cannot give his acceptance, or a period for ...Missing: mirror | Show results with:mirror
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Reform of the French Civil Code on contract law and the general ...
Oct 1, 2016 · New article 1104 provides that contracts must be negotiated, concluded and performed in good faith (previously the implied obligation of good ...
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German Civil Code BGB - Gesetze im Internet
An offer expires if a refusal is made to the offeror, or if no acceptance is made to the offeror in good time in accordance with sections 147 to 149. table of ...
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Art. 19 CISG | CISG-online.org
(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and ...
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The Contract Act, 1872 | 7. Acceptance must be absolute
7. Acceptance must be absolute | Whereas it is expedient to define and amend certain parts of the law relating to contracts; It is enacted as follows:-
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[PDF] flexibility and certainty as competing - contract values: a civil ...
The civil law has avoided many of the problems encountered by the common law because the civil law has more flexible and less stringent requirements regarding.Missing: critiques | Show results with:critiques
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[PDF] The Formation of Contracts & the Principles of European Contract Law
The differences between common-law and civil law61 approaches prevented a unanimous solution. The conse- quence of the compromise will most likely be ...