letter of confirmation

noun · kaufmännisches Bestätigungsschreiben

Among merchants a letter confirming the content of negotiations has an effect no English lawyer expects: if the recipient does not object at once, the contract counts as concluded with the content of the letter, even where that differs from what was actually agreed. The rule is customary law rather than a statutory provision, and silence is what binds.

Which translation, when

Schweigen als Zustimmungthe mechanism: where merchants have negotiated and one side sends a letter setting out the result, the recipient must object without undue delay if the letter does not match what was agreed; if he stays silent the contract is treated as having the content of the letter, an exception to the general rule that silence means nothing, and it rests on commercial custom rather than on a paragraph of the Code.

Grenzenwhere it stops: the sender must have acted honestly, so a letter deliberately deviating from the agreement or containing terms so far removed that the sender could not expect assent does not bind; the parties must both be merchants or at least participate in commercial dealings in a comparable way, and the letter must follow negotiations rather than start them.

Auftragsbestätigungthe neighbour it is confused with: an order confirmation answering an offer is an ordinary declaration, acceptance where it matches and a counteroffer where it does not, so it works under the general rules; only the letter that records concluded negotiations among merchants carries the silence effect, and the status question itself belongs to the merchant entry.

Why

Letter of confirmation is the closest English label for the kaufmännisches Bestätigungsschreiben, and the institute deserves the warning it gets here, because it reverses an assumption English contract law treats as fundamental. German law agrees with the common law that silence is normally not acceptance. Among merchants it makes an exception. Where the parties have negotiated a contract and one of them then sends a letter recording what was agreed, the recipient must object without undue delay if the letter does not correspond to the agreement; if he does not object, the contract is treated as concluded with the content of the letter. A merchant who files an incoming confirmation without reading it can therefore find himself bound by terms he never accepted, and the effect rests not on a provision of the Commercial Code but on commercial custom recognised by the courts, which is why a translator will search the statute for it in vain. Limits exist and they matter. The sender must have acted in good faith, so a letter that deliberately departs from what was agreed, or that adds terms so remote that assent could not be expected, has no effect. Both sides must be merchants or at least take part in commercial dealings in a comparable way. And the letter must follow negotiations rather than open them, which is the line to the Auftragsbestätigung, an order confirmation answering an offer, which is judged by the ordinary rules on acceptance and counteroffer. The status question that decides whether the rule applies at all is held by the merchant entry.

Typical mistakes

Silence on a commercial letter of confirmation binds the recipient to its content, so treating it as a courtesy document misjudges the risk entirely.
The effect rests on commercial custom rather than on a statutory provision, so searching the Commercial Code for the rule produces nothing.
An Auftragsbestätigung answering an offer follows the ordinary rules on acceptance, so the silence effect does not apply to it.

What matters

Handling incoming German commercial correspondence: the routine should identify any Bestätigungsschreiben, compare it against what was actually agreed, and object in writing at once where it deviates, since doing nothing settles the terms.

Authority

§ 346 HGB

What the machine misses

Machine output for letter of confirmation gives Bestätigungsbrief or treats it as an Auftragsbestätigung, and the institute is the kaufmännisches Bestätigungsschreiben, whose silence effect among merchants fixes the contract with the content of the letter; the loose rendering hides both the customary-law basis and the need to object at once.

See what the machine does with this clause →

Examples

a commercial letter of confirmation	ein kaufmännisches Bestätigungsschreiben
the recipient must object without undue delay	der Empfänger muss unverzüglich widersprechen
an order confirmation	eine Auftragsbestätigung
silence is treated as assent	Schweigen gilt als Zustimmung