Counterproposals – when overseas deals become complicated

I recently wrote about the elements of law and practice of international trade which together bring about a binding deal. In clear terms, the elements of a valid offer, and those of a valid acceptance according to CISG (the UN Convention on the International Sales of Goods, our legal reference for the subject). See previous articles.

In short, the offer must be specific in respect to the addressee and the goods it refers to. It does not require immediate attention to quantity and price, but a reference for their determination. The valid acceptance takes place with clear assent of the terms of the offer, within its deadline.

But what if the addressee does not agree in full to the content of the received offer? What to do in practical terms, what consequences to draw from any such response, and on top of this, any hint on rules of international trade that apply?

Based upon valid CISG terms, the addressee’s suggestion of deviation from what has been proposed, if in respect to: pricing, payment terms, quality, quantity, place/time for delivery, liability, or dispute resolution will be deemed as a counterproposal, and consequently will cause the formal rejection of the prior offer, even if done unwillingly.

Such elements are indeed classified as material by CISG, and their modification is forcibly interpreted as a new proposal. Then, the only remedy for such rejection is to rely on the offeror’s unequivocal acceptance of the counterproposal, otherwise the deal is broken.

As a way of exception, the addressee’s reply on terms that may deviate from or add to the prior offer without however touching the material elements above, (a) is effectively deemed as an acceptance to the offer, if the offeror does not so object to them in due time (see here a lighter standard), and (b) the terms of the prior offer will be deemed complemented by the addressee’s new terms, forming a contract.

My take: often a negligent response to an offer will cause unexpected results. A reply to an offer must be purposedly crafted to avoid them. The addressee must review each point of the offer and check his willingness to accept them as proposed, or take the risk to repropose them (a) on grounds that may add or change non-material points to the offer, causing its full acceptance but including the new terms, or (b) on grounds that may add or change material points to the offer, causing its rejection and replacement by the addressee’s counterproposal, with all consequences it may entail.