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CISG CASE PRESENTATION

Switzerland 11 October 2004 Canton Court Freiburg (Chemical product case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/041011s1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20041011 (11 October 2004)

JURISDICTION: Switzerland

TRIBUNAL: Kantonsgericht [Canton Court] Freiburg

JUDGE(S): Kaeser (Präsident); Urwyler, Chanez (Kantonsrichter); Wohlhauser (Gerichtsschreiber)

CASE NUMBER/DOCKET NUMBER: A1-2003-70

CASE NAME: Unavailable

CASE HISTORY: 1st instance Zivilgerichts Seebezirks 6 June 2003; 3d instance Bundesgericht 5 April 2005

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Chemical product (triethylen tetramin)


Case headnote

Reproduced from Internationales Handelsrecht (2/2005) 72

"1. A proposal for concluding a contract that does not include the sales price does not fulfil the requirements of Art. 14 CISG.

"2. On the acceptance of a proposal by conduct that implies consent.

"3. Within the scope of the CISG, an undisputed commercial order confirmation is only to be considered as consent if this is in accordance with the existing practice between the parties or international custom of the trade."

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 8 ; 9 ; 11 ; 14 ; 15 ; 18 ; 19 ; 23 ; 55

Classification of issues using UNCITRAL classification code numbers:

8A ; 8B ; 8C [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct; Interpretation based on objective standards; Interpretation in light of surrounding circumstances];

9C [Practices established by the parties];

11B [Formal requirements: proof of contract by any means, including witnesses];

14A1 [Criteria for an offer (basic criterion: intention to be bound in case of acceptance): definiteness of key conditions (price)];

15A [When offer becomes effective: effective on reaching offeree];

18A [Criteria for acceptance of offer];

19A1 [Reply purporting to accept but containing additions or modifications: in general, constitutes rejection and counter-offer];

55A [Open-price contracts: enforceability of agreements that do not make provision for the price]

Descriptors: Intent ; Usages and practices ; Formal requirements ; Formation of contract ; Offers ; Acceptance of offer ; Commercial letters of confirmation ; Burden of proof ; Open-price contracts

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/964.pdf>; Internationales Handelsrecht (2/2005) 72-76

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

French: Claude Witz, Recueil Dalloz (22 February 2007) 535

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Case text (English translation)

Queen Mary Case Translation Programme

Cantonal Court (Kantonsgericht) Freiburg
1st Court of Appeal (I. Appellationshof)

11 October 2004 [A1 2003-70]

Translation [*] by dr. Andrea Vincze [**]

Edited by Mariel Dimsey [***]

FACTS OF THE CASE

Plaintiff "G" Chemiehandelsgesellschaft GmbH [*] [Buyer] is a limited liability company under German law, having its seat in Germany and trading in chemical raw materials. Defendant "R" AG [*] [Seller] deals in chemical and pharmaceutical products and industrial and petrochemical mineral oils, having its seat in "M", Switzerland. The parties have been engaged in a regular business relationship for more than eleven years and they are members of the German Alliance of Chemicals for Wholesale and Foreign Trade (hereinafter: VCH) and apply VCH's General Conditions of Sale.

On 8 or 9 January 2002, [Seller] was informed by a third party that Company "A-N" in Italy was offering approximately 70 tons of Triethylene Tetramine (hereinafter: TETA) for sale, upon which [Seller] passed this information on to several of its clients including [Buyer]. On 10 January 2002, [Seller] sent a fax titled "Offer" to [Buyer] with the following content:

"We would like to offer you the following product: Triethylene Tetramine 99.5 percent
Amount: approx. 70 tons
Packaging: in 10,000 litre containers
Manufacturer: DELAMIN
Looking forward to your prompt reply."

Several phone calls took place subsequently, but the exact content and time of the calls is disputed. However, they generally addressed the amount to be delivered, the price, conditions and timing of delivery. On 22 January 2002, [Buyer] sent the following Confirmation of Purchase No. 222028 (available only in German) to [Seller]:

"... Based on our General Conditions of Sale, we confirm that we have purchased from you:

Product: Triethylene Tetramine min. 99.5 percent from Manufacturer
DELAMIN, immaculate quality + specification
Hazardous material GGVS/ADR: KL 8 para 53b, UN 2259
Amount: Approx. 60 tons net
Price: EURO 1,482.70 per ton net, joint sale
Conditions of delivery:      DDP Hamburg, exact address shall be provided later
Packaging: 1,000 litre containers
Labelling: As required by legal provisions and trade usages
Date of delivery: First instalment: Thursday, 31 January
Second instalment: Thursday, 28 February
Third instalment: Thursday, 28 March
Payment: Within 30 days, net price, in cash
Notes: Please send us the specification and the respective
EU safety data sheet by fax."

The safety data sheets were provided by [Seller] in a fax on 24 January 2002, while the specification analysis and the supplier's declaration were sent on 28 January 2002. On 21 January 2002, [Buyer] had resold the goods to "Chemie GmbH" in Germany for EURO 1,536.50 per ton net price. Delivery dates concerning this resale were also 31 January 2002, 28 February 2002 and 28 March 2002, in three installments of 20 tons each. Subsequently, problems arose because [Seller]'s Italian supplier, Company "A-N", failed to release the goods. The first delivery was at first postponed, then cancelled altogether. Although [Seller] even sent a freight train to the Italian manufacturer, the Italian manufacturer refused to load it and gave no reasons for not doing so. [Buyer]'s customer "Chemie GmbH" demanded that subsequent deliveries take place on time, [Buyer] was given a "Nachfrist" notice, in which an additional period of time for performance was set, and since the goods were not delivered within the additional period either, cover purchases were carried out, the costs of which were charged to [Buyer]. A dispute then arose between [Buyer] and [Seller] concerning who was liable for compensation of the latter damages, with [Seller] contending that no contract had ever been concluded.

JUDGMENT OF THE COURT OF FIRST INSTANCE

On 27 July 2002, [Buyer] filed a claim with the Civil Court of the Lake District [Zivilgericht des Seebezirks] concerning compensation for damages deriving from the sales contract and requested the Court to order [Seller] to pay CHF [*] 25,913.55 and 5 percent interest, and to pay the costs of proceedings and compensation for all damages. Response to [Buyer]'s claim was filed on 13 November 2002, in which [Seller] requested the Court to dismiss the claim in its entirety with costs and damages.

In its judgment of 6 June 2003, the Civil Court of the Lake District rejected the [Buyer]'s claim and found [Buyer] liable to pay all costs of proceedings. The Civil Court applied the CISG and came to the conclusion that no contract was concluded between the parties. In summary, the Court found that:

   -    The offer of 10 January 2002 did not qualify as an offer as required by Art. 14 CISG because the purchase price was neither determined nor determinable. Nor did [Buyer] rely on a binding offer at this point of time; it even rang [Seller] two or three days later to inquire whether the goods were still available.
 
   -    Even if [Seller]'s fax was to be considered as an offer to [Buyer], the result would be the same. The results of the evidentiary proceedings showed that at first, [Buyer] had rejected [Seller]'s offer of 10 January 2002 and thereupon no contract was concluded. Acceptance of a possible offer by [Buyer] is also contested by the fact that, on 10 January 2002, approx. 70 tons of TETA was offered, but just two or three days later only 60 tons were available.
 
   -    The Civil Court also examined whether the sales contract was concluded during subsequent negotiations between the parties and found that it was not. The Court found clear evidence that about one week after the fax of 10 January 2002 was sent, the parties restarted negotiations concerning conclusion of a contract, after [Buyer] had found a potential buyer (i.e., "Chemie" GmbH) and [Seller] had confirmed availability of approx. 60 tons of TETA. However, it was not proven that during a telephone conversation, which took place between R.H, General Manager of [Buyer] and M.R., Sales Manager of [Seller] on 17/18 January 2002, a contract concerning the respective TETA was concluded, which [Buyer] apparently then confirmed in a fax on 22 January 2002. The Civil Court based its respective contentions on M.R.'s statements that [Buyer] had dispatched confirmation of the order without having agreed on the phone. Therefore, the communication of 17/18 January 2002 does not qualify as an offer of [Seller] and therefore, no contract was concluded.
 
   -    Considering the lack of a previous offer and without having concluded a contract beforehand, the confirmation of purchase sent by [Buyer] on 22 January 2002 shall not be considered as acceptance, but rather as a new offer to [Seller]. The latter offer was never accepted expressly.
 
   -    Finally, the Civil Court examined whether the contract was concluded by conduct of the [Seller] indicating assent to the offer (Art. 18(1) CISG). The Court found that subsequent to the offer dated 22 January 2002, [Seller] indeed sent [Buyer] the safety data sheets, the specification analysis and the supplier's declaration, yet this was the usual course of business. These documents merely proved that the parties had conducted negotiations, but not that [Seller] had implicitly accepted conclusion of the contract or that [Buyer] could have inferred that [Seller] had consequently accepted the contract. In addition, [Seller] sent a lorry [translator's note: previously the word 'freight train' was used] to Italy in order to stress that the goods had to be loaded. The Court of First Instance found it comprehensible that [Seller] and Witness M.R. clearly expressed that by sending a lorry to Italy they had tried to put pressure on the initial seller and save the business deal. In its negotiations with [Buyer], [Seller]'s conduct had been very cautious, and they did not even send a confirmation of sale because they were obviously not sure whether they could really obtain the goods from the Italian manufacturer. Legally, such behavior of [Seller] cannot give rise to any accusations. In addition, Witness M.R. stated that [Buyer] was notified that the initial seller had not yet conclusively agreed to the sale. Thus, sending a lorry to Italy does not, by itself, constitute "other conduct" of the offeree that could prove that the offer had been accepted since, in the instant case, such an acceptance could only be substantiated if the lorry had actually been loaded. Until that point of time, one has to assume that the whole contract was still pending.
 
   -    For the remainder, this is evidence of a certain carelessness on behalf of [Buyer], who concluded an unconditional contract with a third company before the contract between [Buyer] and [Seller] had been concluded.

APPEAL

On 15 September 2003, [Buyer] filed its appeal. It requested the Court to reverse the judgment of the Civil Court of the Lake District of 6 June 2003 with costs and requested that [Seller] be found liable to pay CHF 23,582 and 5 percent interest. [Buyer] objected to the judgment for alleged inappropriate application of law and evidence and infringement of the right to be heard. Basically, [Buyer] stated that the offer of 10 January 2002 qualified as a valid offer as provided by Art. 14 CISG. The fact that the purchase price was missing did not matter because the parties had agreed that profit deriving from the respective business was to be divided equally between them. In addition, the price was determinable as the market price. [Buyer] was able to understand the offer as such, since the 'reasonable person' theory applies in the CISG, too (Art. 8(2) CISG). Moreover, even if the written offer of 10 January 2002 had not qualified as a valid offer, the contract was concluded at the latest during the telephone conversation of 21 January 2002 and confirmed in writing a day later. In addition, [Seller] undisputedly arranged for performance, meaning that at least the Confirmation of Purchase of 22 January 2002 qualified as an offer which was accepted by [Seller] by its subsequent conduct. [Buyer] was provided with the safety data sheets, the specification analysis and the supplier's declaration, it was also notified about the delay in delivery and [Seller] sent a lorry to Italy. In [Buyer]'s opinion, the reasoning by the Court of First Instance which assumed that the contract was pending cannot be followed. [Buyer] repeated its contentions concerning calculation of damages and requested witness testimony of Michael H.

In its Response to the Appeal on 23 November 2003, [Seller] asked the Court to dismiss the [Buyer]'s appeal, confirm the first-instance judgment, and order [Buyer] to pay all costs of the proceedings.

The legal representative of [Buyer] appeared at the session of the Court of Appeal held on 9 September 2004. The evidentiary proceedings were concluded and Attorney Mathias Ammann presented his party's case.

REASONING OF THE COURT OF APPEAL

1.  a) The subject-matter jurisdiction of the Cantonal Court arises out of Art. 291 ZPO [*] in conjunction with Art. 143 GOG [*]. The period to appeal is 30 days. The judgment was received by [Buyer] on 15 August 2003, thereby the Appeal sent on 15 September 2003 was received by the Court on time (Art. 40 ZPO).

      b) Pursuant to Art. 2 of the Lugano Convention [*] (SR [*] 0.275.11), persons having their residence in the territory of a Contracting State can be sued before the courts of that State regardless of their nationality. Since Germany and Switzerland are both Contracting States, the Lugano Convention shall be applied. Territorial jurisdiction of the Cantonal Court is therefore present.

      c) The CISG (SR 0.221.211.1) shall be applied to contracts for sale of goods between parties whose places of business are in different States when the States are Contracting States; or when the rules of private international law lead to the application of the law of a Contracting State (Art. 1 CISG). Since Switzerland and Germany are both Contracting States, the CISG shall be applied.

      d) [Seller] raises objection for lack of the "authorization to act", stating that B.B. has left the company of [Buyer], both as General Manager and as partner. Thereupon, authorization to represent the company by the remaining General Manager, R.H., shall be re-examined.

It is not evident why the legal capacity of [Buyer] should be restricted because of changes in its organization and ownership issues. To the extent that [Seller] is referring to the special authorization of 31 January 2003, its objection fails because such authorization applies only to proceeding ZG 02 29 before the Civil Court of the Lake District. Furthermore, Attorney Ammann was duly authorized by [Buyer] on 17 June 2002 to represent the company in this case and "to carry out all necessary measures on behalf of the company, even those which require a special authorization at law".

The objection concerning lack of "authorization to act" is thus dismissed.

2. It is disputed whether a contract was concluded between the parties and therefore, it is also disputed whether the parties had intended to create a mutual agreement through a meeting of the minds on the necessary consensual elements of the contract.

      a) The CISG shall be applicable to the contract. The CISG provides for "Conclusion of the Contract" in Arts. 14-24, which do not establish any general rules on consent, but rather set forth principles on "offer" and "acceptance".

      b) First, it must be proved whether, as stated by [Buyer], consent was established in personal negotiations or between absent parties (i.e., by telephone). This makes it unnecessary to answer the second question, i.e., what the essential elements of an offer are. An oral offer must be accepted immediately unless the circumstances indicate otherwise (Art. 18(2) sentence three CISG). Such a different deadline is present when the accepting party, upon a specific agreement with the other party, is entitled to respond to an oral offer within a period which was specifically agreed upon by the parties or within a reasonable period, which was not determined exactly. Such an agreement can be made expressly, implicitly, or on the basis of trade usages or practices set between the parties. Pursuant to Art. 8 CISG, in determining such a deadline, regard shall be had to the understanding of a reasonable person and all relevant circumstances of the respective case.[1]

A contract for the sale of goods does not have to be concluded or confirmed in writing and there are no specific requirements concerning form of the contract either. Existence of a contract can be proved in any way, even by witness testimonies (Art. 11 CISG). The burden of proof concerning conclusion of the contract lies on the party which relies on that fact.[2]

      c) The evidence indicates that M.A., Sales Manager of [Seller] contacted R.H., General Manager of [Buyer], by phone on 17 or 18 January 2002. The parties' statements are contrary concerning the crucial point of whether [Seller] expressed its intention to be bound in the phone conversation of 2 January 2002 and, thereby, whether the contract was validly concluded at that point in time. There is no information concerning whether M.R. or R.H. are more or less credible. Both of them are in close connection with the parties, R.H. as Sales Manager of [Buyer] and M.R. as employee of [Seller] and wife of the General Manager. Thereby, whether the contract was orally concluded on 21 January 2002 remains unproven. This would not be any different even if M.H. testified, because he was not present at the negotiations between the parties.

The Court of Appeal, therefore, comes to the same conclusion as the Court of First Instance did and dismisses this part of the appeal.

3.  a) [Buyer] also criticizes the finding of the Court of First Instance that the offer of 10 January 2002 does not qualify as an offer under Art. 14 CISG because the purchase price was neither determined nor determinable. [Buyer] contends in this respect that since the profit was to be shared between the parties, there was an open billing and the price was therefore determinable anytime. [Buyer] alleges that lack of determination of the price is not problematic either because Art. 55 CISG provides for this event.

      b) Art. 14(1) CISG deals with conditions of a valid offer by providing that:

"A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price."

Art. 55, contained in the "Payment of the Purchase Price" section, provides that:

"Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned."

[Buyer] refers to the widely acknowledged controversy between Arts. 14 and 55 CISG, stating that scholarly writings suggest many different points of view.[3] Most scholarly opinions are in favor of giving preference to Art. 14 CISG.

      c) The Court of First Instance correctly ruled that the offer of 10 January 2002 did not fulfill the requirements of an offer set out in Art. 14 CISG because it did not include the purchase price. Not even a subsequent agreement on sharing the profit or applying an open billing affects the fact that, at the time of making the offer, no legally valid offer was made which could have resulted in concluding the contract with a simple declaration of acceptance. The [Buyer]'s appeal is also dismissed on this point.

4. a) The Court of First Instance correctly found that if the confirmation of purchase of 22 January 2002 does not qualify as acceptance of the offer, it shall be regarded as a new offer to [Seller]. This was not disputed by the parties either. [Buyer] contends that the Civil Court drew wrong conclusions in this regard and that [Seller]'s subsequent arrangements concerning performance were not given appropriate weight. [Buyer] contends that sending a lorry shall be interpreted as "other conduct" in the sense of Art. 18 CISG and therefore, the contract was validly concluded.

      b) 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 constitutes a counter-offer. (Art. 19(1) CISG). The counter-offer shall be governed by general provisions on offers.[4] Art. 18 states:

"(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.

"(2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.

"(3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph."

Acceptance of an offer can be communicated orally or indicated by conduct expressing that intent. Whether certain conduct amounts to acceptance shall be determined by interpretation of that conduct. Relevant principles that are commonly surmised in this country under the concept of "reliance" are also included in the CISG, pursuant to Art. 8:

"(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.

"(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.

"(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."

The burden of proof concerning receipt of the acceptance rests on the party which relies on the conclusion of a contract. If the acceptance does not need to be received, the offeror's burden of proof takes the form of an evidentiary obligation to objectively show that the action took place. The offeree must present evidence in order to weaken that consequence.[5]

      c) In the present case, no express acceptance or rejection of the offer, i.e., the Confirmation of Purchase of 22 January 2002, could be substantiated. Sales Manager M.R. alleges that she notified by phone that she had not confirmed the sale. According to R.H., [Buyer]'s General Manager, [Seller] did not notify them before 8 February 2002 that it did not consider itself to be bound by the offer. However, the latter was not just behaving passively, since in the period before 8 February 2002, it undisputedly was acting as if a business deal had arisen. Therefore, it must be proven whether [Seller]'s conduct amounted to acceptance of the offer of 22 January 2002.

            aa) As it had been proven during the evidentiary proceedings, [Seller], according to information provided by it, wanted to carry out the sale "by all means"; in this regard, the parties were in contact for close to a month. After receipt of the Confirmation of Purchase of 22 January 2002, several discussions followed, the contents of which are disputed by the parties. It is, however, undisputed that on 21 January 2002, [Seller] faxed the safety data sheets that had been requested in the Confirmation of Purchase to [Buyer]. In the covering letter, the following statement was included, among others:

"The specification analyses shall be sent you later. The goods shall be delivered in 1,000-litre containers of the size 1 x 1.20 m (IBCs). Total amount: approx. 62 tons."

On 28 January 2002, [Seller] sent "Analysis data of Triethylene Tetramine RA 0193" on its own stationery and referred to the fact that: "This is a technical product. This circumstance has also been considered when calculating the price (...)". The covering letter included in the reference line: "Triethylene Tetramine RA 0193 / Your order number 222028". On the same day but in a separate fax, [Seller] sent a "Supplier's Declaration under EU Regulation 1207/2001" on its own stationery, in which it is stated that they regularly deliver TETA from Italy to [Buyer] and that such TETA corresponds with the provisions on origin applied generally in commerce with regard to 32 (expressly named) States.

The evidentiary proceedings did not substantiate when precisely [Seller] became aware of the delivery difficulties. From the files, we can surmise that [Buyer] was notified about the delivery delay already before delivery of the first installment, as included in its confirmation of 30 January 2002. The new deadline to deliver was confirmed as 7 February 2002. On 6 February 2002 at the latest, it was communicated to the [Buyer] that not even this second deadline could be complied with. On 8 February 2002, [Seller] was aware that this business could not be carried out because Company "C" sent [Seller] a copy of a fax from the supplier, Company "A-N" dated 11 July 2001, in which it is evident that the TETA was not available for sale. It is also undisputed that [Seller] sent a lorry to Italy in order to load the goods.

            bb) In the instant case, there was no business practice upon which a document of confirmation, which is not objected to, has a legally binding effect, since both parties state that they usually confirm concluded agreements in writing. Such a provision is also included in the General Conditions of Sale of the VCH, on which both parties rely.

Under the CISG, differently from Swiss law, a document of confirmation which is not objected to shall be considered as acceptance only if it corresponds with international trade practices or usages between the parties. None of these circumstances are present in the instant case, with the consequence that [Buyer] is not entitled to base its contentions on them.

            cc) Even in the case of behavior that expresses acceptance, the declaration contained therein must generally be received by the other party. Art. 18(2) CISG clarifies this by providing that the "indication of assent" does not become effective until it reaches the offeror. Therefore, delivery of the goods can indeed qualify as acceptance of an offer (order), but the contract shall be considered concluded only upon receipt of the goods.[6] As examples of such "declaratory behavior", scholarly writings cite the following: dispatch of the goods, partial delivery, payment, opening of a letter of credit for the purchase price of the goods, receipt of payment at a bank,[7] receipt of and/or processing the goods, preparation for performance through cover transactions or starting production, dispatching invoices, cashing in a check sent along with the offer.[8]

In the instant case, the documents received by [Buyer] (safety data sheets and supplier's declaration) cannot be interpreted as acceptance. According to undisputed information presented by M.R., that was just a routine procedure because those documents were sometimes even sent along with the offer. The latter conclusion shall be upheld even though on 15 April 2004, new evidence aimed at proving that the contract was concluded without written confirmation was submitted. In addition, it was submitted too late and it did not include why it was submitted only after conclusion of the written procedure of the second instance proceedings although the document was already in existence before the appeal (cf. Art. 130(2) and 299a(3) ZPO.[*]

The fact that [Seller] sent a lorry to its own supplier, Company "A-N", in order to "put pressure on it", cannot mean acceptance either by itself or in connection with the documents previously sent. Such conduct did not indicate its intent to be bound, but merely showed that it did everything to carry out that business deal. Therefore, the question of whether the lorry actually arrived or was stopped beforehand can remain open; it is, however, certain that delivery of the goods was not commenced. In addition, [Buyer] was informed about that only in connection with postponing delivery; therefore, it could not have reasonably considered these acts as acceptance of the deadlines included in its Confirmation of Purchase.

The conclusion of the Court of First Instance that no contract was concluded between the parties shall be confirmed and the [Buyer]'s appeal shall be dismissed.

5. a) In accordance with outcome of the proceedings, costs of the appeal proceedings consisting of a fee of CHF 2,500 (Art. 9 ZivKT [*]) and expenses of CHF 132 shall be borne by [Buyer].

      b) In calculating attorneys' fees forming part of the costs of proceedings, the Court takes into special consideration the time usually necessary for conducting such procedure and the respective interests at stake (Art. 2(3) PKT). Fees shall be calculated at CHF 200 per hour (Art. 4 PKT). Based on the files and the list of costs submitted by Attorney Waeber, approximately 30 hours (at CHF 200) seems reasonable. With regard to discussions with the client's representative, legal documents drafted (Response to the Claim: 9 pages, Response to the Appeal: 7 pages), participation in and preparation for trial and usual costs, the costs incurred by [Seller] amount to CHF 6,463.80 (Attorneys' fee: CHF 6,000, correspondence: CHF 200, expenditures: CHF 263.80) plus 7.6 percent VAT of CHF 491.25.

HOLDING

Based on Art. 92(1)(a) GOG [*] and Art. 21 of the Regulation of the Cantonal Court, the Court hereby declares that

I.       The [Buyer]'s appeal is dismissed and judgment of the Civil Court of the Lake District dated 6 June 2003 is confirmed.
 
II. Costs of the appeal proceedings shall be borne by [Buyer].

Costs of proceedings are calculated as follows: altogether CHF 2,632 (judicial costs: CHF 2,500, expenses: CHF 132) and concerning advance payment, which was shared equally between the parties, [Buyer] shall reimburse the sum paid by [Seller].

Attorneys' fees of [Seller] shall be CHF 6,955.05 (including CHF 491.25 VAT).

Freiburg, 11 October 2004.


FOOTNOTES

Footnotes of the Court

1. Schnyder/Straub, in: Kommentar zum UN-Kaufrecht, Berlin 1997, para 51 on Art. 18 CISG.

2. Schnyder/Straub, op.cit., para 68 on Art. 14 CISG.

3. E.g. Caemmerer/Schlechtriem, Kommentar zum einheitlichen UN-Kaufrecht, München 1990, para 11 et seq. On Art. 14 CISG; Honsell, Kommentar zum UN-Kaufrecht, Berlin Heidelberg New York 1997, para 50 et seq. On Art. 14 CISG; Neumayer/Ming, Commentaire sur la Convention de Vienne sur les contrats de vente internationale de marchandises, Lausanne 1993, para 10 on Art. 14 CISG; Bucher, Preisvereinbarung als Voraussetzung der Vertragsgültigkeit beim Kauf, zum angeblichen Widerspruch zwischen Art. 14 und Art. 55 des Wiener Kaufrechts, in: Wiener Kaufrecht, BTJP 1990, Bern 1991, p. 53 et seq.

4. Schnyder/Straub, op.cit. on Art 19 CISG

5. Schnyder/Straub, op.cit. para 18 on Art. 19 CISG.

6. From materials cited by Caemmerer/Schlechtriem, op.cit., para 22 on Art. 18 CISG.

7. Schlechtriem, Internationales UN-Kaufrecht, Tübingen 1996, para 84 on Art. 18 CISG.

8. Caemmerer/Schlechtriem, op.cit., para 7 on Art. 18 CISG.

Translator's footnotes

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the German Plaintiff, "G" Chemiehandelsgesellschaft GmbH, is referred to as [Buyer], while the Swiss Defendant, "R" AG is referred to as [Seller]. Amounts in the currency of Switzerland (Swiss francs) are referred to as [CHF] and European currency is referred to as [EURO].

Translator's note on abbreviations: AG = Aktiengesellschaft [incorporated]; GmbH = Gesellschaft mit beschränker Haftung [limited liability company]; GOG = Geschaftsordnungsgesetz [Swiss Federal Act on Rules of Procedure]; Lugano Convention [EC EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters - Lugano, 16 September 1988]; SR = Systematische Sammlung des Bundesrechts [Systematical Collection of Swiss Federal Law]; ZivKT = Zivilkostentarif; ZPO = Zivilprozessordnung [Swiss Code of Civil Procedure].

** Andrea Vincze is a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She received her law degree from the University of Miskolc, Hungary, in 2002. Currently, she is a Ph.D. candidate at that university, working on her research project on international commercial arbitration and ICSID arbitration.

*** Mariel Dimsey, LL.M. is a Research Assistant and Teaching Assistant at the University of Basel, Switzerland.

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Pace Law School Institute of International Commercial Law - Last updated May 9, 2007
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