An Offer for Concluding Contract According to the CISG and Especially the Legal Nature of Public Offers
In our study, by discussing the provisions of the Convention in order to accept the proposal which subject to the international sale of goods in according to the CISG, it has been tried to shed light, in which cases it will be considered invitation to treat or public offer in accordance with the provision of Article 14 (2) of the Convention. In this context, it has been emphasized the bounds of possibilities, when proposals stated to unspecific addressee will be considered as an invitation to treat and in contrary, when there will be expressly stating intention according to the provision of Article 14 (2). This situation necessitated looking at the legal nature of the offer which stated to the public, and in a different way to the provisions and results of the offers which stated especially in the IT sphere. In this context, it is debated whether the Convention apply to international sales of goods through auction in the context of e-commerce.
CISG Uyarınca Sözleşmenin Kurulmasında İcap ve Özellikle Kamuya Yöneltilen İcapların Hukuki Niteliği
Çalışmamızda, milletlerarası mal satımını konu edinen bir satım teklifinin CISG uyarınca icap olarak kabul edilebilmesi için Antlaşmanın öngördüğü düzenlemelere değinilmek suretiyle, Antlaşmanın madde 14 (2) hükmü uyarınca, hangi hallerde icaba davet veya aleni icabın söz konusu olacağına ışık tutulmaya çalışılmıştır. Bu doğrultuda, madde 14 (2)’nin belirsiz olmayan kişilere yöneltilen tekliflerin icaba davet olarak kabul göreceğine ilişkin hükmü ve bahsi geçen durumun aksinin açıkça belirtilmesinin hangi ihtimalleri kapsadığının üzerinde durulmuştur. Ortaya çıkan bu durum, kamuya yöneltilen icapların hukuki niteliğine, özellikle bilişim ortamında yapılan icapların hüküm ve sonuçlarına farklı bir açıdan bakmayı gerektirmiştir. Bu bağlamda, e-ticaret kapsamında açık artırma yoluyla milletlerarası mal satımını amaçlayan icapların söz konusu olduğu hallerde, Antlaşmanın uygulama alanı bulup bulamayacağı irdelenmiştir.
CISG ascertains, whether the nature of the proposal is attributable to the offeror, in other words, whether the proposal is an invitation to treat or offer statement, by specificity of addressee. The Convention, as a rule, prescribes that the proposal is an offer when the addressee is specific, otherwise it will be considered as an invitation to treat. Nonspecificity of adressee means that the proposal stated to public. For that reason, proposals which stated to public, as a rule, will be considered as an invitation to treat. The Convention, however, allows to make an offer to public by expressly stating that the offeror is to be bound with his own proposal, even if the addressee is unspecific. Offeror can defiened the nature of a proposal by stating “public offer” related clauses. On the contrary, if there is no explicit declaration of intent in proposals which stated to public, its imperative to determine offerors intention. It is cruical to state that, proposals which stated to public may occur as price lists, circular notes, advertisements, brochures, call for tender or window displays. Furthermore, proposals which are stated to public, constitutes in sales which concluded within the context of e-commerce transactions, which became fixture of our daily life. In such a case, by proposals which consists display by countdown, limitation by stocks or indicate that the goods are sales by discounts, we can estimate that offeror is stated intention which will be bound with own proposal and finally it is constitute that it is public stated proposal. Intention as this way, ordinarily limited by stocks or date ranges or countdowns which stating in small or inapprehensible fonts by prima facie. There will be numerus clauses addressee when offeror limits intention. It is cruical to state that, identification and nature of addressee is insignificant for offeror. For that reason, it is admissible that addressee is specific even if it is relative. Specificity of addressee is means that the proposal is in public offer nature. If we consider that sales contracts which are within the context of electronical commerce are not concluded only inborders of one state, but its assembly buyer and sellers in global scope, it is no doubt that the Convention does apply to sales of goods in this sphere. However, it is uncertainty that if we despite Art. 2, is it possible that Convention does apply to sales which are made through auctions via internet sites. It is admissible, if we consider that electronic commerce was not reputable yet when the Convention concluded. Nowadays its possible that the Convention does apply to auctions related sales. In this work, by consider Art. 2 of the Convention, it has been discussed within comparison with Turkish Law; the legal nature of an offer which is made in the context of international sales contract, how to act within the bounds of possibilities if we confront public offer or auction sales.
