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CISG CASE PRESENTATION

Mexico 10 March 2005 Primer Tribunal Colegiado en Materia Civil del Primer Circuito [Appellate Court] (Kolmar Petrochemicals Americas, Inc. v. Idesa Petroquímica S.A. de C.V.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050310m1.html]

Primary source(s) of information for case presentation: CISG-Spain and Latin America database

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Case identification

DATE OF DECISION: 20050310 (10 March 2005)

JURISDICTION: Mexico

TRIBUNAL: Primer Tribunal Colegiado en Materia Civil del Primer Circuito [Appellate Court]

JUDGE(S): Sra. Mª del Carmen Arroyo Moreno

CASE NUMBER/DOCKET NUMBER: 127/2005

CASE NAME: Kolmar Petrochemicals Americas, Inc. v. Idesa Petroquímica Sociedad Anónima de Capital Variable

CASE HISTORY: 1st instance Juicio ordinario mercantil (núm. 868/2003) 5 October 2004; 2d instance Sala Civil del Tribunal Superior de Justicia del Distrito Federal (núm. 2700/2004) 18 January 2005

SELLER'S COUNTRY: Mexico (defendant)

BUYER'S COUNTRY: United States (plaintiff)

GOODS INVOLVED: Mono Ethylene Glycol fiber


UNCITRAL case abstract

Mexico: Primer Tribunal Colegiado en Materia Civil del Primer Circuito [Appellate Court] 10 March 2005 (Kolmar Petrochemicals Americas, Inc. v. Idesa Petroquímica S.A. de C.V)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/123]
CLOUT abstract no. 1193

Reproduced with permission of UNCITRAL

Abstract prepared by Andrey A. Panov

The Mexican seller and the US buyer initiated negotiation of a FOB sales contract of Mono Ethylene Glycol fibre by telephone. Afterwards, the buyer e-mailed the seller recapitulating the terms the parties had agreed upon. The seller acknowledged the order by e-mail, but mentioned that it was still awaiting confirmation as to the availability of the terminal to load. The seller further promised to give “final confirmation” later on. In response to this e-mail, the buyer wrote that the comment regarding the terminal was not very clear and asked the seller to call back to further discuss the matter. Apparently, no telephone call or e-mail from the seller ensued.

After more than two weeks, the buyer wrote again to the seller notifying the designation of the ship to carry the goods and asked the seller to send back an acceptance of the designation. However, an acceptance did not come forth. Eventually, the seller wrote an e-mail to the buyer notifying that the transaction could not be concluded on the agreed terms. The seller suggested an increase of the sale price to avoid losing money in the transaction. It also noted that it was fully aware that they were not upholding the original agreement, but that seemed to be the only quick and direct solution to the problem.

In court, the buyer claimed performance of the obligations under the contract as well as damages, including loss of profit. The first instance court found in favour of the seller. The court concluded from the facts that no sales contract had been concluded, as the parties never agreed on the date and place of delivery. It further considered that the buyer’s notification of ship designation showed that the buyer knew that no agreement regarding the date and place of delivery had been reached. The Superior Court for the Federal District (second instance court), to which the buyer appealed, upheld the decision of the first instance court.

The buyer filed an appeal against both decisions with the First Circuit Appellate Court (the “Appellate Court”) arguing that the facts showed that a contract had been concluded. Furthermore, the seller in its correspondence acknowledged that the contract had been breached. The finding that a ship designation demonstrated that the buyer knew there was no agreement regarding the time and place of delivery contradicted widespread usages of international trade regarding carriage of goods by sea. The interpretation of the CISG given by the Superior Court for the Federal District promoted bad faith, as it allowed the seller to walk away from its obligations under the contract.

The Appellate Court dismissed the appeal and upheld the decisions of the lower courts. The Court agreed with the reasoning of the lower courts that had found Art. 19(3) CISG applicable. The Appellate Court stated that the seller had not accepted essential elements such as the date and place of delivery, as it had pointed out that it would give a “final confirmation” regarding these elements. Those elements were crucial for the purposes of the CISG, and, therefore, the buyer’s offer had not been accepted and a contract had not been concluded.

The Appellate Court agreed with the Superior Court for the Federal District which stated that the principle of good faith (Art. 7(1) CISG) had not been violated, for the contract was never concluded and there were only unfinished negotiations. The Court reached the same conclusion with respect to the parties’ intent (Art. 8 CISG): with no doubts the parties intended to negotiate the purchase of goods at a specific price, but the negotiations were not finalized due to the lack of agreement on the key elements of the contract. Incomplete negotiations between the parties resulted in the non-existence of a contract.

As to the buyer’s argument that the lower courts misunderstood the notion of widespread trade usages (Art. 9 CISG) when interpreting the buyer’s communication regarding ship designation, the Appellate Court agreed with the reasoning of those courts. Such a communication was found to demonstrate the buyer’s awareness that the parties did not agree upon the date and place of delivery.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(1) ; 8 ; 9 ; 19(3)

Classification of issues using UNCITRAL classification code numbers:

7A3 [Principles of interpretation: observance of good faith];

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];

9A [International usages];

19C [Acceptance of offer with modifications: modifications that are material]

Descriptors: Intent ; Good faith ; Usages and practices ; Acceptance of offer

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1118&step=Abstract>

Spanish: CISG-Spain and Latin America database <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/mexic5.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): Go to Spanish presentation of case text; also available at CISG-Spain and Latin America database <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/smexi5.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

(English): Alejandro Osuna, Kolmar Petrochemicals v. Grupo Idesa: Contract Formation, Interpretation of Parties’ Intent, and Interpretation of the CISG (July 2006)

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Mexico City, Federal District
First Appellate Court on Civil Matters of the First Circuit

Kolmar Petrochemicals Americas, Inc. v.
Idesa Petroquímica Sociedad Anónima de Capital Variable

10 March 2005

Translation [*] by Adrián Cisneros Aguilar [**]

Judge: María del Carmen Arroyo Moreno

Secretary: Marco Antonio Peña Sanabria

Mexico City, Federal District. Decision of the First Appellate Court on Civil Matters of the First Circuit, corresponding to 10 March 10 2005.

Having seen, in order to solve, the writs of direct amparo civil trial number 127/2005, raised by Kolmar Petrochemicals Americas, Inc. [Buyer], through its attorney Miguel Bernal Trani, against the acts performed by the Eighth Civil Division of the Superior Justice Court and the Fiftieth Civil Judge, both from the Federal District, that he deemed violating of the Individual Guarantees established in the Constitution articles 14 and 16 and that he makes consisting of:

"a) From the Eighth Civil Division of the Superior Justice Court, the decision dated 18 January 2005, held in trial number 2700/2004, concerning the appeal raised by [Buyer] against the definitive decision dated 5 October 2004, held within the ordinary commercial trial, file 868/03, raised before the Fiftieth Civil Court."

b) From the Fiftieth Civil Judge of this City, the enforcement of the decision held in trial number 2700/2004 by the "Eighth Civil Division of the Superior Justice Court, dated 18 January 2005"

c) It is also pointed out as the act claimed from the authorities liable, all the effects, consequences and judicial proceedings that could be derived from the appeal decision indicated as the contested act. (the previous transcription is literal).

RESULTING:

FIRST.- By written motion presented on 23 October 2003, before the Civil-Family Motions Reception Office of the Superior Justice Court of the Federal District, [Buyer], through its attorney Miguel Bernal Trani, claimed from Grupo Idesa Petroquímica Sociedad Anónima de Capital Variable [Seller], in the ordinary commercial proceeding, the following performances:

A) "The performance of its obligations under the contract dated 29 November 2002, regarding the acquisition of 3,000 metric tons of Mono ethylene glycol fiber grade at a price of US $392.50 (three hundred and ninety-two dollars and fifty cents, American currency) per ton."

B) "The damages and lost profit caused to my client for an amount not less than US $724,500.00 (seven hundred and twenty-four thousand dollars, American currency)."

C) "The coverage of all the expenses generated in the trial at hand." (The previous transcription is literal).

SECOND.- The Fiftieth Civil Judge of the Federal District, to whom by turn it corresponded to know of the lawsuit, by writ dated 7 November 2003, and previous injunction executed on 27 October 2003, admitted such writ, ordering to open the relating file and notify the [Seller].

THIRD.- [Seller], through its attorneys Roberto Martínez Franco and J. Jesús Martínez Franco, by written motion presented on 10 December 2003, answered the claim settled against it, and enforced the exceptions and defenses it deemed convenient; in the same written motion, the petitioners also presented themselves as attorneys for Comercializadora Reter Sociedad Anónima de Capital Variable.

FOURTH.- In writ dated 11 December 2003, the judge who knew of the case acknowledged the petitioners as attorneys for [Seller], and the claim settled against the named corporation as answered, also acknowledging as valid the exceptions and defenses enforced, and determined to have Comercializadora Reter Sociedad Anónima de Capital Variable without a representative, as it was not a party in the case at hand.

FIFTH.- Having pursued the trial throughout its diverse procedural stages, the judge handed down a decision on 5 October 2004, in the writs of the ordinary commercial trial number 868/2003 and concluded with the following resolution:

"FIRST.- The ordinary commercial recourse is viable, in which the [Buyer] did not prove its action and, in consequence, the [Seller] ascertained its exceptions and defenses.

SECOND.- The [Seller] is excused from performing each of the obligations claimed by [Buyer].

THIRD.- No special tax for costs is made.

FOURTH.- It is ordered to file to the decisions dossier of this Court, an authorized copy of the present decision.

FIFTH.- Notify it [of this decision]". - (The previous transcription is literal).

SIXTH.- Not satisfied with the decision of this judge, [Buyer], through its attorney Miguel Bernal Trani, filed an appeal. The Eighth Civil Division of the Superior Justice Court that considered the case in trial number 2700/2004, handed down a decision on 18 January 2005, which concluded:

"FIRST.- The appeal filed by the [Buyer] is declared unfounded.

SECOND.- The decision dated 5 October 2004, emitted by the Hon. Fiftieth Civil Judge of the Federal District, and contained in the writs of the trial identified in the title of the present decision, is confirmed.

THIRD.- The [Buyer] is taxed for costs in both instances.

FOURTH.- Notify this. With the testimony of this resolution, make it known to the court from which the case has been sent. Return the main writs, as well as the documents in which the action is based to the judge and, at the earliest convenience, file the trial as a concluded matter". (The previous transcription is literal).

SEVENTH.- Against this decision and its execution, [Buyer], through its attorney Miguel Bernal Trani, filed the current guarantees appeal, by written motion presented before the Motions Reception Office for the Divisions of the Superior Justice Court of the Federal District on 8 February 2005.

The file was received by this Appellate Court on 17 February 2005, and by writ from the Presidency [of this Court], the claim against the act performed by the Eighth Civil Division of the Superior Justice Court, which consists in the definitive decision handed down on 18 January 2005 in trial number 2700/2004, and whose execution it was attributed to the Fiftieth Civil Judge of the Federal District, was accepted.

The Representative for the Federation Public Ministry did not express any legal request in the case at hand and by a court order dated 24 February 2005, notified by list to the parties on the following business day, the writs were sent to the Justice draftsman, for her study. The file was received for arguments on 25 February 2005.

CONSIDERING:

FIRST.- This Court is competent to know and decide on the present guarantees appeal, pursuant to articles 158 of the Amparo Act and 37, subsection I, subparagraph c) of the Federal Judiciary Power Organization Act, given that a decision that does not admit any recourse is being claimed.

SECOND.- The existence of the act claimed from the Eighth Civil Division of the Superior Justice Court of the Federal District, is proved with the justification report rendered by such Court by written communication number 1497, alongside the original writs of the file 868/2004.

On the other hand, having been contested, the decision dated 8 February 2005, the trial was initiated in time, as the mentioned decision was notified to the [Buyer] by means of the Judicial Bulletin number 13, of 19 January 2005. Therefore, the notification became effective on the 20th, and the fifteen days to which article 21 of the Amparo Act makes reference ran from 21 January to 10 February of the mentioned year; from the aforesaid calculation the days 22, 23, 29 and 30 January 2005, as well as 5 and 6 February are discounted, as they are non-working days.

THIRD.- The considerations in which the Eighth Civil Division of the Superior Justice Court of the Federal District relied upon, in order to decide in the way it did, are the following:

I.- The [Buyer] expressed as the grounds for its appeal those established in its written motion dated 19 October 2004, which, in order to avoid repetitions are deemed to be reproduced here, forming an integral part of this decision.

[THE FIRST GROUND FOR APPEAL PRESENTED BY BUYER]

II.- The first ground for appeal presented by the [Buyer] is considered unfounded so as to lead to the revocation of the definitive decision claimed, in regards to the legal reasoning exposed as follows:

[Buyer's position]

The [Buyer] basically alleges that from the evidence submitted, a telephone conversation can be noted in which the contracting parties agreed on the terms of the operation, an agreement that the [Buyer] alleges was confirmed by the parties, and [Buyer] is shown to have taken all the requisite measures to provide the transport ship in time according to what was agreed. However, [Seller] subsequently decided not to comply with the contract. It is also important to stress that [Buyer] alleges that the [Seller]'s considerations have to do with the price of the goods. It is the [Buyer]'s view that once once the [Seller] discovered the that it had sold its product rather cheap, the [Seller] concluded that this sale was not beneficial for it.

The [Buyer] also allegues that [Seller] did not argue on 29 November 2002 that there was a discrepancy between the partie regarding the terms of the contract. The discrepancies the [Seller] makes reference to now are the ones that appeared during the negotiations subsequent to the non-compliance when [Buyer] tried to cope with [Seller]'s requirements, in an effort to show good faith so as to save the operation and avoid the trial.

In assessing the communications between the parties, the [Buyer] allegues that the lower court did not properly follow articles 7(1) and 8 of the United Nations Convention on the International Sale of Goods. [Buyer] stresses the importance of the principle of good faith in international trade and the importance of applying the principle of the interpretation most favorable for the contract to generate its effects, which is consistent with article 1853 of the Commerce Code.

The [Buyer] also argues that article 8 of the said Convention establishes rules for the interpretation of the statements made by the parties and that this article in its first paragraph indicates that, for the purposes of the Convention, the statements and other conduct of a party have to be interpreted according to its intention when the other party knew or could not have been unaware of such intention -- a provision that is closely linked with the principle of good faith to which the [Buyer] makes reference. Consequently, according to the communications between the parties, [Seller] made known to [Buyer] its consent to the contract, and it is contrary to the principle of good faith and the intention manifested by [Seller] at the moment of entering the contract, to interpret its confirmation as an acceptance with reservations.

The [Buyer] also argues in its appeal that paragraphs (2) and (3) of article 8 of the CISG should be invoked, and that the only interpretation that could be deduced from [Seller]'s conduct when signing the contract was that the [Seller] gave its consent. This is confirmed by the absence of objections during the negotiations between late December 2002 and January 2003, regarding the non-existence of consent in relation to the place and time of delivery, as well as the objections relating to the prejudices that would arise for the [Seller] by complying with the contracted price.

The [Buyer] argues as well that the contested decision causes it prejudice in that it considers that the fact that [Buyer] had notified [Seller] on 19 December 2002 of the name of the ship that would transport the goods, and that it had asked for a confirmation of such notification, demonstrates that [Buyer] knew that there was no agreement regarding the time and place of delivery. [Buyer] alleges that such consideration does not recognize a widely spread trade practice in operations that involve carriage of goods by sea: As the contracting party, the [Seller] in this case is the one that shall hire the carriers to be used, and the reason why it notifies of the carrier is to give the other party the opportunity to have the goods available in the appropriate dock or warehouse, to know whether the port of destination will be able to receive the carrier, if it has adequate facilities and capacity, and if the seller finds out that the carrier is not suitable, or cannot deliver the goods on the agreed day, the seller can reject the confirmation or propose a modification and that can only be done when the contract has been signed.

Therefore -- argues the [Buyer] -- if the Superior Justice Court did not properly consider the trade practice, this is contrary to article 9 of the Convention, it also leading to an inadequate application of article 19 of the CISG.

To acquire a better understanding of the operation, it becomes necessary to provide a brief summary of the case; to do so, it is imperative to point out that the [Buyer] in its written complaint alleged the following obligations on the part of the [Seller]:

-    A) Compliance with the contract dated 29 November 2002, regarding the acquisition of 3,000 metric tons of Mono ethylene glycol fiber grade at a price of US $392.50 per ton;
 
-    B) Damages and lost profit caused in an amount not less than US $724,500.00;
 
-    C) Payment of interest in arrears in respect to the amount claimed, derived from the damages and lost profit cited in the previous paragraph.

The [Buyer] is a corporation devoted to the trade of chemical products in international markets, with its main office in the United States. The [Seller] manufactures and sells Mono ethylene glycol fiber grade (MEG), and its main offices are located in the Mexican Republic. This is the reason why, as the parties to this trial sustain, as well as the Superior Justice Court in the contested decision, the United Nations Convention on the International Sale of Goods is applicable. This Convention, which prevails over State and Federal laws, has been adopted by both Mexico and the United States, and was signed by the representative of the Federal Executive Power and ratified by the Senate. In that order of things, from the study of the facts that comprise the written claim, it can be seen that there were negotiations between the parties towards the signing of a sales contract for MEG and that [Seller] did not comply with that contract, thus causing the [Buyer] severe damages and losses.

[Seller's position]

The [Seller], by written motion presented on 10 December 2003, answered the claim, opposed the [Buyer]'s exceptions and denied the viability of the [Buyer]'s appeal.

[Seller] alleges that, according to what is established in article 1294 of the Commerce Code, the facts and the law support the decision of the Superior Justice Court since, contrary to what has been argued by the [Buyer], that court correctly gave probative value to the e-mails provided as evidence by the [Buyer], from which it cannot be derived that the parties had agreed upon the price and its payment, the quality and quantity of the goods and the place and date of delivery, thus not fulfilling the premise contained in article 19(3) of the United Nations Convention for the International Sale of Goods (Vienna, 1980).

Therefore, it is [Seller]'s position that we cannot talk about the existence of a contract. In fact, from the e-mails supplied as evidence by the [Buyer] itself, the judge could not have arrived at the conclusion that the parties had concluded a contract, but that there were only attempts of negotiation in order to purchase MEG, as can be demonstrated from the transcription of the e-mails that state:

"Dear Manuel. - This is to confirm our phone conversation a few minutes ago. [Buyer] agrees to purchase [from Seller] MEG as follows: Product: Mono ethylene glycol, fiber grade.-

"Quantity: 3,000 MT+/5%, [Buyer]'s choice. Quality: according to the specifications guaranteed by [Seller] as they have already been proposed by [Seller].- Price: $392.50/mt FOB.- Delivery: from [Seller]'s terminal in Coatzacoalcos (details will be given by [Seller]).- Time: to ship in January, [Buyer]'s option.- Terms of payment: 30 days net after knowledge of shipment".

This proposal was answered by Manuel Asalí also by e-mail to Rick Jones of [Buyer] on 29 November 2002, from whose translation the following can be derived:

"Rick, we acknowledge your order with the details indicated therewith. I am only awaiting news in respect to the tank terminal in Coatzacoalcos to load in January (so far I have only been confirmed as of December 31st). I will communicate with you on Monday to give you the final confirmation."

In turn, answering [Buyer] wrote to [Seller]'s Manuel Asalí, on 2 December 2002, an e-mail whose translation to Spanish, in the relevant part states:

"... your comment regarding the terminal is not very clear for me, so call me or, in any case, call South (sic) to explain them further."

On 19 December 2002, the [Buyer] made known to [Seller]'s Manuel Asalí, by e-mail, the following:

"Manuel, attached you will find our carrier designation [to transport] the 3,000 metric tons of MEG fiber grade that [Buyer] has purchased from [Seller]. I have attached [such designation] in Microsoft Word and Word Perfect format. If you have any problem opening the file contact me immediately.- If you have any questions regarding the nomination, do not hesitate to contact me at 203-354-1152.- Please, send me your acceptance to the attached carrier designation at 16:00 hours, New York's time, of today, 19 December 2002 at most."

In response to the aforesaid, [Seller]'s Manuel Asalí in an e-mail dated 10 January 2003, made known to Rick Jones of [Buyer], the following:

"Rick, the internal situation has become confusing again and I am struggling to conclude this operation ... As things are right now, we are below our limits, which means that this sale will cost us money. If that happens and we cannot fix things, I will see myself obliged to cancel the entire operation, though I know that is not the best thing for any of the parties (and the final costs could be higher later, I know). Due to that fact, I am looking for a way to solve the problem and I can propose you two alternatives.

-    1.- If we depart from Coatzacoalcos, it will be then necessary for me to raise the sale price from US $392.50 per ton to US $400. It can seem ridiculous, but this difference allows me to at least justify the transaction from our side. However, Coatzacoalcos still bears the disadvantage that the tanks could or could not be available; we will have an answer in that respect by Tuesday next week at most.
 
-    2.- (sic) If we load in Altamira, then our logistics costs would raise the sale price to US $415 per ton. The advantage Altamira offers is that we have tanks available immediately and we can move the product quickly in order to load at any time.-

"I am fully aware that I am not upholding our original agreement, but I am afraid that at this moment this would be the only quick and direct solution to the problem. I do not know what your final sale price for your client in Asia will be, but considering the recent price reports, there could be a chance for us to place ourselves above the price levels, that also allows me not to fail you or your client.- This is the situation and my proposal. Please, tell me what you think. Right now I am in the office and we could discuss this at any time of the day."

From the transcription above, and contrary to the [Buyer]'s affirmation in that the parties did not agree upon the terms of the operation, in fact we find fulfilled the premise established in article 19(3) of the United Nations Convention for the International Sale of Goods, which provides:

"Article 19

(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 constitutes a counter-offer

(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

(3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially".

In that sense, the elements purporting to deal with the price and place of delivery of the goods failed to be made concrete, thus the reason assists the judge when sustaining that according to the aforementioned article 19, any limitation to the offer will be considered a rejection of such offer, especially if we take into account that it is an essential element of the offer that was rejected, such as the place and date of delivery, since the [Seller] never accepted that the delivery take place on [Seller]'s terminal in Coatzacoalcos, Veracruz in January, 2003. Also, we have to take into account that [Seller]'s Manuel Asalí pointed out that he would give the [Buyer] the final confirmation, which had it taken place would have accepted [Buyer]'s offer. In this respect, it must be said that it is incorrect for the [Buyer] to pretends not to recognize that some of the elements of the contract were missing, since by e-mail dated 2 December 2002, [Buyer] manifested to [Seller] that the latter's commentary regarding the terminal where the delivery was going to be made remained unclear, and that for that reason it asked the [Seller] to call [Sue] in order to explain the matter to her more thoroughly. These are circumstances that reveal that the [Buyer] had knowledge that the [Seller] had not accepted the contract relative to the place and date of delivery. This is something that was confirmed in an e-mail dated 19 December 2002, in which the [Buyer] asked it's the [Seller]'s negotiator Manuel Asalí to send the [Seller]'s acceptance to the carrier's nomination. This makes clear that the [Buyer] knew of the offer made on 29 November 2002.

The net result is that we cannot be certain about the price of the transaction, given that, if the delivery took place in Coatzacoalcos, it would be necessary to raise the sale price from US $392.50 per ton to US $400 per ton, and if delivery were made in Altamira the logistics costs would be increased, since the price would be raised up to US $415 per ton. The advantage was that in the last port there was an immediate availability [of the tanks] and that [such tanks] would be able to move more easily to load. From all of this, it can be concluded that there was no certainty regarding the place and date of delivery and the price, since the price of the Mono ethyl glycol fiber grade (MEG) would increase, depending on the place in which the [Seller] would have to make the delivery. [Buyer]'s allegation that, by a phone call, the parties agreed upon the terms of the operation is not supported by the facts. Because of the aforesaid, it cannot be said either that the principles of good faith that ought to prevail in sales contracts according to article 7 [of the CISG] had been violated, causing the [Buyer] prejudice, given that, as there was not a final consensus regarding the price and place and date of delivery, we cannot talk about the conclusion of a contract, and thus it is incorrect that the [Buyer] pretends to enforce a contract that did not come to existence legally speaking, for there were only non-final negotiations.

With respect to [Buyer]'s allegation that article 8 [of the CISG] establishes rules for the interpretation of the declarations made by the parties and that, because of that, [its declarations] must be interpreted according to its own [the Buyer's] intention, it must be said that it is true that, at first, the parties tried to negotiate the purchase of MEG at US $292.50 per metric ton. It is also true that the operation in the end was not finalized because of the parties' disagreement when it was not determined when the delivery of the product was to be made, neither it was indicated in which port such delivery was going to take place, and therefore, the price differed, depending on the place of delivery. Since no element exists in the evidence presented that provides certain data regarding where and when the delivery was going to be made, the facts support the Superior Justice Court's determination that no contract existed, given that the premise established in article 19(3) [of the CISG], already mentioned, was fulfilled.

The intent of the parties evidenced the lack of final negotiation between them and thus the non-existence of a sales contract; therefore, it is incorrect for [Buyer] to now expect the enforcement of such a contract. It is incorrect as well that the [Buyer] argues that subparagraph (3) of article 19 is not applicable, and that the only conclusion to be derived from [Seller]'s conduct is that it [intended to conclude] the contract, without making any objections during the negotiations that took place between late December 2002 and January 2003, as to the date and place of delivery, since, as it had been made clear, [Seller]'s offer was to deliver the good either in Coatzacoalcos or in Altamira, with a difference in the price of the product, depending on the place the delivery was accepted, and without presenting any evidence regarding the port where delivery of MEG was supposed to be made.

Regarding the notification of the designation of the carrier to pick up the MEG, suggested by [Buyer], that only reveals the [Buyer]'s intent to designate the transport in which the goods were going to be carried, but in no way does it evidence the acceptance on the part of the [Seller] of the ship anchored in Coatzacoalcos or in Altamira for the delivery of the MEG. In that order of ideas, what is expressed by the [Buyer] as the basis for appel is unfounded.-

[THE SECOND GROUND FOR APPEAL PRESENTED BY BUYER]

III.- The [Buyer]'s second ground for appeal is similarly unfounded. The [Buyer] argues that [the Court] compensated the deficiency of the [Seller]'s claim, given that in no part of the Written Answer to the Claim did [Seller] argue that the contract was not finalized because of a lack of consensus regarding the date and place of delivery of MEG. The [Seller], on the other hand, in its written answer presented an Exception of Price Modification, as follows:

"V.- PRICE MODIFICATION. Article 19(3) of the United Nations Convention on the International Sale of Goods, that the [Buyer] invokes as the core of its Written Claim, and which states that: 'Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered TO ALTER THE TERMS OF THE OFFER MATERIALLY,.' And under the interpretative methods for determining the parties' intention as established in article 8 of this Convention, it is derived that the statements and other conduct of a party are to be interpreted according to his intent, and that in order to determine the intent of a party according to the understanding that a reasonable person would have had, all the relevant circumstances of the case must be duly taken into account, particularly the negotiations, any practices that the parties had established between themselves, (sic) usages and customs and the subsequent conduct of the parties."

Therefore, as your Honor can conclude by from the written testimony of MR. SAÚL TAMAYO CANTÓN, where it literally states that "finally on 10 January 2003, Manuel comes back with a proposal in which he is trying to negotiate the agreed price asking for US $8.00 [per metric ton] more if the product is in Coatzacoalcos or US $15 [per metric ton] if the product is in Altamira and discards Houston, a thing with which [Buyer] AGREES AS TO THE NEW PRICE IN COATZACOALCOS," there exists a modification to an essential element of the contract; there is a new offer and therefore a proposal for a new contract".

Likewise, from the Written Answer to the Claim, it can be noted that the [Seller] argued that there was not really a consensus as to the date and place of delivery, and it was not proved for the record that the parties had reached a final agreement. By virtue of the aforesaid, it cannot be sustained that the Superior Justice Court had compensated the deficiency of the [Seller]'s claim, since, and we insist, when replying to the [Buyer]'s claim the [Seller] made evident the lack of agreement regarding the place and date of delivery. Therefore, the ground for appeal under analysis is unfounded.

[THE THIRD GROUND FOR APPEAL PRESENTED BY BUYER]

IV.- The third ground for appeal presented by the [Buyer] is also unfounded. The [Buyer] alleges that the [contested] decision proceeds from the wrong hypothesis - i.e., that there was not a contract -- given that [the Court] rejected all the evidence presented by [Buyer] that is relevant to demonstrate both the entering into such contract and the existence of damages and losses caused by [Seller] as a result of its non-compliance. The aforesaid translates into a violation of article 1077 of the Commerce Code, as there is a lack ofevidence provided by [Buyer] that could lead to a demonstration [of the conclusion of a contract], such as an accounting expert opinion, evidence of a legal instrument, as well as an undue evaluation of the statement of facts of Messrs. SAÚL TAMAYO CANTÓN, RICK JONES AND RAF AVINER (sic), contained in the documents indicated in paragraphs seven, eight and nine of the Evidence Offering Written Motion.

All of this is said to have provoked the judge to restrain from deciding for the damages and losses claimed. Thus, the [Buyer] points out that it is worth noting that the references to the testimonies of ALEJANDRO OGARRIO RAMÍREZ ESPAÑA AND BERNARDO CERTUCHA (sic) -- which the judge states do not benefit the [Buyer] -- mean nothing, since they were witnesses for the [Seller], and the [Buyer] did not sustain its claim nor its evidence in such testimonials. As can be appreciated from the statements pointed out, the [Buyer] complains of an improper assessment of the evidence. However, the [Buyer] does not present what the evidence would have been had it had been duly assessed by the [Superior Justice Court] judge, so the arguments expressed in relation to that should be rejected. In the case at hand, the following definitive case law of binding observation is applicable:

"OFFENSES IN AN APPEAL. WHEN AN IMPROPER ASSESSMENT OF EVIDENCE IS CLAIMED, ITS PROBATIVE REACH MUST BE IDENTIFIED.

When in an appeal, the improper assessment of evidence is claimed, the grounds for appeal must express legal reasoning that makes manifest the violation of legal provisions by the judge [whose decision is appealed] when appreciating the arguments presented before him, also specifying the probative reach of such evidence, as well as the way in which such evidence affects the decision, as otherwise it is evident that such allegatopms become inoperative for being insufficient".- SIXTH APPELLATE COURT ON CIVIL MATTERS OF THE SIXTH CIRCUIT.- VI. 2o J/185. - Direct amparo 351/96. Juan Ramírez García. 28 August 1996. Unanimity of votes. Opining Judge: Clementina Ramírez Moguel Goyzueta. Secretary: Gonzalo Carrera Molina.- Direct amparo 231/98. Maderas Cocoyotla, S.A. de C. V. and other. 11 June 1998. Unanimity of votes. Opining Judge: Antonio Meza Alarcón. Secretary: Enrique Baigts Muñoz.- Direct amparo 195/99. Primo Rosas. 24 June 1999. Unanimity of votes. Opining Judge: José Mario Machorro Castillo, Court's Secretary authorized by the Federal Judiciary Council in Full Attendance to occupy the Justice post. Secretary: Miguel Ángel Ramos Pérez.- Direct amparo 671/99. Urbano Chocolatl Cielo. 7 October 1999. Unanimity of votes. Opining Judge: Gustavo Calvillos Rangel. Secretary: José Mario Machorro Castillo.- Direct amparo 98/2000. Dolores Nogales Caballero. 27 April 2000. Unanimity of votes. Opining Judge: Enrique Baigts Muñoz. - Instance: Appellate Courts. - Source: Federation's Judicial Bulletin and its Gazette, Ninth Époque, Volume XI, May 2000. Page 783. Single Decision.-

Given the legal reasoning expressed above, the recourse submitted by the [Buyer] must be declared unfounded and the contested decision confirmed.

III.- According to the normative premise to which article 1084, subsection four, of the Commerce Code is refers, the Appellant is sentenced to pay the Respondent's legal expenses in both instances, as this is about a confirmation of [a previous] decision. For this matter, it is applicable the case-law that states literally:

EXPENSES. IT IS AN OBLIGATION OF THE APPELLANT TO COVER THEM TO THE RESPONDENT WHEN THE APPELLANT DOES NOT PROVE IN BOTH INSTANCES THE VIABILITY OF THE ACTION AND, ON THE OTHER HAND, REQUIRES THE RESPONDENT, WHO DOES NOT HAVE ANOTHER CHOICE, TO EXERCISE HIS RIGHT TO DEFEND HIMSELF.

In strict observation of article 140, subsection IV, of the Civil Procedure Code for the Federal District, there is the irrenounceable obligation of the Appellant, to cover all the expenses incurred by the Respondent, for it is unquestionable that the fact that the Appellant does not prove in both instances the grounds on which the action is based, inciting the jurisdictional organism to call the Respondent, who, on the other hand, sees himself forced to exercise his right to defend himself, causes the Respondent problems, annoyances, contradictions and losses that are translated in expenses that hamper his patrimony. Therefore, this attitude on the part of the Appellant is sanctioned by an express provision contained in the aforementioned Code, sentencing the Appellant to the coverage of all expenses in both instances." SIXTH APPELLATE COURT ON CIVIL MATTERS OF THE FIRST CIRCUIT.- I. 6th C. 190 C. - Direct Amparo 4236/99. Irma Flores Moreno. 13 September 1999. Unanimity of votes. Opining Judge: Adalid Ambriz Landa. Secretary: Raúl González González.- Instance: Appellate Courts.- Source: Federation's Judicial Bulletin and its Gazette. Ninth époque. Volume: X. December, 1999. Page 702.- Single decision (The previous transcription was literal).

FOURTH.- The following violations were claimed:

FIRST.- Violation of articles 1077, 1325 and 1328 of the Commerce Code. Article 1853 of the Federal Civil Code. Also, violation of articles 7, 8, 9 and 19 of the United Nations Convention for the International Sale of Goods, (hereinafter, the Sales Convention), published in the Federation's Official Journal on 17 March 1988, all of which results in violations to the guarantees of legality and legal security of my client, that protect articles 14 and 16 of the Constitution.

CONTRACT OF 29 NOVEMBER 2002 [BUYER'S POSITION]

I.1. The Superior Justice Court for the Federal District erred when deciding that it is not true that, on 29 November 2002, [Buyer] and [Seller] concluded a sales contract whose enforcement was claimed by the [Buyer] before the Hon. Judge of the first instance [the Fiftieth Civil Judge]. The court in its considerations failed, on the one hand, to consider important facts, and on the other, made wrong considerations with respect to other facts.-

I.2. On 29 November 2002, as a result of previous negotiations between the parties, Mr. Rick Jones, on behalf of [Buyer], and Mr. Manuel Asalí, on behalf of [Seller], had a phone conference in which they agreed upon the signing of the CONTRACT.

I.3. Thereafter, on the same day, Rick Jones sent Manuel Asalí an e-mail, confirming the phone conference and stipulating, by writing, the terms of the contract they had convened upon. Rick Jones' e-mail says:

"Dear Manuel.- This is to confirm our phone conversation a few minutes ago.- [Buyer] agrees to purchase [from Seller] MEG as follows: Product: Mono ethylene glycol, fiber grade.-

"Quantity: 3,000 MT+/5%, [Buyer]'s choice.- Quality: According to the specifications guaranteed by [Seller] as they have already been proposed by [Seller].- Price: [US $] $392.50/mt FOB.- Delivery. From [Seller]'s terminal in Coatzacoalcos (details will be given by [Seller]).- Time: To ship in January, [Buyer]'s option.- Terms of payment: 30 days net after knowledge of shipment.

I.4. Moments later, by e-mail, Manuel Asalí replied to Rick Jones:

"We acknowledge your order with the details indicated therewith. I am only awaiting your news regarding the tank terminal in Coatzacoalcos in order to load in January (so far you have only confirmed me as to 31 December). I will contact you to give you the final confirmation".- (Emphasis added).

I.5. From the e-mails reproduced above, the parties agreed in: (I) the quality and quantity of the goods that [Seller] was selling to [Buyer], (II) the price, the means and time of payment, and (III) the date and place of delivery.-

I.6. It is worth noting that Manuel Asalí's reply on behalf of the [Seller] does not introduce new terms [to the proposal], nor does it make any objections to it; he does not say, for example, that he disagrees in that the delivery takes place in Coatzacoalcos. Manuel Asalí simply manifested that he was lacking information regarding a detail, that is, to specify the tank terminal in Coatzacoalcos, from which he did not have a confirmation until 31 December 2002. That was not a fundamental aspect of the contract, but a mere operational detail. This reply is congruent with the original message from [Buyer], in which it is stated: "Details to be provided by [Seller]".

I.7. The CONTRACT DATED 29 NOVEMBER 2002 was concluded in the manner described in the previous paragraphs.

I.8. On 19 December 2002, in accordance with a widespread practice regarding international carriage of goods, [Buyer] notified [Seller] of the name of the carrier that would transport the merchandise and asked for an acceptance.

I.9. According to this usage, having agreed to the sale, the party in charge of the transport, hires the carriers to be used; in the case at hand it only needed one. Since the sale was FOB, the maritime carriage was up to [Buyer]. When [Buyer] had chosen the carrier, its characteristics and the dates of arrival to port, [Buyer] notified [Seller] for its acceptance. The latter should have confirmed, except if it had good reasons not to.

b) The recognition, and breach of the CONTRACT DATED 29 NOVEMBER 2002. [Seller]'s PROPOSAL OF 10 JANUARY 2003.

I.10. On January 10, 2003, by e-mail, Manuel Asalí, on behalf of the [Seller], notified [Buyer] that it would not comply with THE CONTRACT OF 29 NOVEMBER 2002. [Seller] expressly recognized that it was breaching the contract. As a matter of fact, Manuel Asalí's e-mail states: "I am fully aware that I am not upholding our original agreement ..."

I.11. It is worth noting that Manuel Asalí, in his e-mail dated 10 January 2002, did not state that THE CONTRACT OF 19 (sic) NOVEMBER 2002 had not been concluded, nor that there had been any discrepancy between the parties as to the place of delivery and the price of the goods.-

I.12. In the same e-mail dated 10 January 2003, Manuel Asalí proposed to the [Buyer] a new operation to substitute for the one he was not complying with. In that proposal, (THE PROPOSAL OF 10 JANUARY 2003), [Seller] suggested different prices and different delivery places.

I.13. Hoping to partially save the economical value of the operation [Seller] was breaching, [Buyer] held negotiations with [Seller], regarding THE PROPOSAL OF 10 JANUARY 2003. This often occurs in trade [relations], when one party does not comply and tries to mitigate the damages caused by the non-compliance. Especially if, as in the case at hand, the buyer has the goods compromised with third parties. -

I.14. The negotiation relating to THE PROPOSAL OF 10 JANUARY 2003 did not succeed. The parties did not reach an agreement and [Buyer] has sought to enforce its rights in respect to THE CONTRACT OF 29 NOVEMBER 2002, filing its written claim before the Hon. Fiftieth Civil Judge of the Federal District, in an Ordinary Commercial Proceeding.-

g). The disregard of the CONTRACT DATED 29 NOVEMBER 2002

I.15. Notwithstanding the aforesaid, the Superior Justice Court for the Federal District has ruled that THE CONTRACT OF 29 NOVEMBER 2002 was not concluded. In the Considerations of this contested decision, the court held that the parties did not reach an agreement regarding the place of delivery, as in the Manuel Asalí's e-mail, dated 29 November 2002, he manifested to be "awaiting...news regarding the tank terminal in Coatzacoalcos in order to load in January" expressing as well that he would contact Rick Jones, to give him the final confirmation.

I.16. Likewise, the Superior Court for the Federal District considered that the circumstance that [Buyer] had notified the designation of the carrier for the transport of goods and asked [Seller] for its confirmation, shows that [Buyer] was aware that the parties had not reached an agreement regarding the date and place of delivery.

I.17. In order to conclude that there was no agreement regarding the price, the Superior Court for the Federal District took the position that during the negotiations in respect to THE PROPOSAL OF 10 JANUARY 2003, the parties did not reach any agreement regarding the price.

d) Omission of the recognition on the part of [Seller]

I.18. The first error committed by the Superior Justice Court for the Federal District was when it omitted any consideration with respect to [Seller]'s admission that it had breached THE CONTRACT OF 29 NOVEMBER 2002. As mentioned above, Manuel Asalí stated in his e-mail dated 10 January 2003, that: "I am fully aware that I am not upholding our original agreement..."

I.19. Manuel Asalí not only recognized the existence OF THE CONTRACT DATED 29 NOVEMBER 2002 (the original agreement), but he recognized as well that he was not complying with it. It is impossible to breach a contract that does not exist.

Omission of the transport use

I.20. The second error committed by the Superior Justice Court for the Federal District was when it omitted any consideration with respect to the transport's use, as well as regarding the notification of the carrier designated to request the confirmation.

I.21. There is a widespread usage in international trade regarding carriage of goods by sea. Among other reasons, it is common to notify the carrier in order to give the seller the opportunity to have the goods available at the appropriate dock or warehouse on the agreed date, in order to find out whether the port will be apt to receive the carrier, and whether the carrier will have the facilities and capacity [for the operation]. [The notification] is also made so that the seller consults with the Port's Naval Command. If the seller considers that the carrier is not suitable or that it cannot deliver on the agreed date, it can reject the confirmation or propose modifications; for example, if during the proposed days the seller will not have the goods available, the carrier does not have the capacity or cannot enter the dock on those days, etc.

I.22. The Superior Justice Court for the Federal District did not consider that [Buyer], when it notified the carrier, did not express any doubt regarding the place and date of delivery. Neither it requested a confirmation of the delivery of the goods; it only asked for a conformation of the carrier. The responsible [authority's] conclusion lacks of basis, pursuant to article 8 of the Sales Convention.

f) Enumeration of the errors

I.23. In conclusion, there were the following errors: (I) improper applications of articles 7(1), 8, 9, and 19(3) of the Sales Convention. Likewise, article 1853 of the Federal Civil Code.- (II) To articles 1077, 1325 and 1328 of the Commerce Code. -

I.24. The improper application of article 7(1) of the Sales Convention consists in the violation of the principle of good faith in international trade, to which the mentioned article makes reference.

"7.1. In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

The interpretation the Superior Justice Court for the Federal District has made of this article favors bad faith, as it allows [Seller] to not comply with its obligations derived from THE CONTRACT OF 29 NOVEMBER 2002, excusing itself on circumstantial details used during the negotiations between the parties, as well as on the statements made in relation to [Seller]'s PROPOSAL OF 10 JANUARY 2003.

I.25. The good faith [principle] in international trade prescribes that negotiations should be given the interpretation most favorable for the business to have effects. The principle of the Major Efficiency of the Legal Acts prescribes this as well, in article 1853 of the Federal Civil Code, which provides that:

"If a clause within the contract admits two interpretations, the interpretation most adequate for the contract to produce effects ought to be chosen."

Instead, the interpretation the Superior Justice Court for the Federal District made privileges the principle of the Lesser Efficiency of the Parties Statements. -

I.26. The interpretation made by the Superior Justice Court for the Federal District, is contrary to article 8 of the Sales Convention, as the understanding it attributes to [Seller]'s statements does not correspond to its intentions, the way it was known by [Buyer]. Much less does it correspond to the understanding a reasonable person, in the same situation as [Buyer], would have given to it. [Buyer], as any other international operator would have done, understood that THE CONTRACT OF 19 (sic) NOVEMBER 2002, had been concluded

I.27. The Superior Justice Court for the Federal District's interpretation is contrary to article 8 of the Sales Convention, as it attributes to both the carrier designation made by [Buyer] and the request for confirmation, an intention that does not correspond with that [Seller] which knows as an operator in the international market. Much less does it correspond to the understanding a reasonable person, in the same situation as [Buyer], would have given to it, that is, that [Buyer] understood that the CONTRACT OF 29 NOVEMBER 2002 WAS CONCLUDED AND THAT [Buyer] was beginning [to comply with that contract].-

I.28. The Superior Justice Court for the Federal District's interpretation is also contrary to article 9 of the Sales Convention, as it ignores and violates a widespread usage in the international carriage [of goods]. -

I.29. The interpretation made by the Superior Justice Court for the Federal District is in addition contrary to article 19(3) of the Sales Convention, as it considers that THE PROPOSAL OF 10 JANUARY 2003, constitutes a modified response to the confirmation messages of the CONTRACT OF 29 NOVEMBER 2002.

I.30. Pursuant to that which is stated herein, there is in the contested decision an omission as to the consideration given to important facts, apart from mistaken considerations of such facts, all of which entail violations to articles 1077, 1325 and 1328 of the Commerce Code by the Eighth Civil Division [of the Superior Justice Court], given the lack of congruence, clarity, and precision in its decision.

SECOND. Violation of articles 1007, 1324, 1325, 1328 and 1329 of the Commerce Code, which results in violations of [Constitutional] guarantees of legality and legal security of my client, protected by articles 14 and 16 of the Constitution.

II. 1. The contested decision limits itself to repeat, with other words, the decision pronounced in the first instance. In that aspect, the contested decision leaves without analysis the following considerations that were presented by the [Buyer] as injuries or errors:

That [Seller] recognized that it had breached [the contract]. That recognition of 10 January 2003, to which it has been repeatedly made reference to above.

That neither in the letter dated 10 January 2003, nor before or after, did the [Seller] indicate that its breach OF THE CONTRACT DATED 29 NOVEMBER 2002, was due to the fact that there was no agreement as to the price and place of delivery.

That, when answering the claim, [Seller] did not take the position that there was not agreement as to the price and place of delivery in the CONTRACT OF 29 NOVEMBER 2002. Instead, [Seller]'s defenses were:

  1. That the [Seller]'s name did not match with the name of the party that negotiated with the [Buyer], according to the e-mails sent between the parties.
  2. That Manuel Asalí was not empowered to bind [Seller].
  3. That [Seller]'s internal procedures [to enter contracts] were not followed.
  4. That no written contract was signed in accordance with the format used by [Seller] on its sales.
  5. That, during the negotiations regarding [Seller]'s PROPOSAL OF 10 JANUARY 2003, there was no agreement in respect to the price and place of delivery.-

That the present conduct of the parties, shows what their intention was. [Seller]'s conduct, to which paragraphs (I) to (III) above make reference, shows that [Seller] did not base its breach on the non-existence of the CONTRACT OF 29 NOVEMBER 2002. [Buyer]'s conduct, demanding compliance with that contract, designating the carrier for the transport and requesting [Seller] its confirmation [of the carrier's designation], demonstrates that [Buyer] understood that the contract had been concretized.

The carrier's designation for the carriage of the goods and the request for confirmation show that [Buyer] was certain that there had been an agreement as to the date and place of delivery. [To argue otherwise] is to violate a widespread trade usage.

II. 2. By virtue of the aforesaid, the Eighth Civil Division [of the Superior Justice Court for the Federal District] violated articles 1077, 1324, 1325, 1328 and 1329 of the Commerce Code, given that in the contested decision there is a lack of consideration of the errors made; [that decision] is neither coherent, nor clear or specific.-

THIRD. Violation of articles 1077 and 1327 of the Commerce Code result in violations to the [Constitutional] guarantees of legality and legal security of my client, protected by articles 14 and 16 of the Constitution. -

III. 1. In the Injuries Brief, [Buyer] argued that the decision of the Judge of the first instance violated the conformity principle, as [Seller] did not enforce the exception consisting in that the CONTRACT OF 29 NOVEMBER 2002 has not been signed due to a lack of agreement about the place of delivery.-

III. 2. In the contested decision, the injury was rejected, on the grounds of the quotation of the Exception to the Claim number V, named "Price Modification". On that exception [Seller] enforced: a) The text of paragraph (3) of article 19 of the Sales Convention. b) The text of article 8 of the Sales Convention.- c) The statements made by witness Saúl Tamayo, regarding to Manuel Asalí's proposal of 10 January 2003 to renegotiate the price, along with the details of such negotiations. -

III. 3. The exception of "Price Modification", lacks of connection to the considerations made in his turn by the Hon. Fiftieth Civil Judge, as well as with those [made by] the Superior Justice Court for the Federal District in the contested decision, so as to deny the existence of the CONTRACT OF 29 NOVEMBER 2002. -

III. 4. The Superior Justice Court for the Federal District also stated:

"Likewise, from the answer to the facts [in the Written Claim], it can be noted that the [Seller] argued that there was no real consensus as to the place and date of delivery, nor as to the means of payment of the price, for we insist, it was made evident that if delivery was made in Altamira or in Coatzacoalcos, there would be a variation in the price, and it was not proved for the files that the parties had reached a final agreement."

III. 5. This is a question of general affirmations, without specifying the facts and the place of answer to the claim (sic) in which those [facts] claimed by the [Seller] took place.

III. 6. Besides, the reference to the negotiations regarding the differences in the delivery [depending on whether it was made] in Coatzacoalcos or in Altamira, are circumstances related to the negotiations about [Seller]'s PROPOSAL regarding the CONTRACT OF 29 NOVEMBER 2002.-

III. 7. Because of the aforesaid, the Superior Justice Court for the Federal District violated the conformity principle protected by article 1077 of the Commerce Code, since in the contested decision it did not duly analyze the injuries argued by [Buyer], jointly with the fact that, having absolved the third party based on defenses not adduced by this third party, as in turn did the first instance judge, it violates as well article 1327 [of the Commerce Code] by compensating the deficiency in the [Buyer]'s claim". (The previous transcription is literal).

[RULING OF THE APPELLATE COURT]

FIFTH.- The grounds for appeal presented by the [Buyer] are unfounded. As can be derived from the records, the Superior Justice Court for the Federal District sent as support for its Justification Report, consisting of the writs of dossier 868/2003 and file 2700/2004, which are granted full probative value, pursuant to articles 129 and 202 of the Federal Civil Procedure Code, of supplementary application to the Amparo Act.

For illustrative purposes, the grounds for appeal presented by the [Buyer] are analyzed in an order different from that raised by the [Buyer].

[ANALYSIS OF THE SECOND GROUND FOR APPEAL PRESENTED BY BUYER]

In its second ground for appeal, the [Buyer] argues that the Eighth Civil Division [of the Superior Justice Court for the Federal District] left without analysis several arguments raised [by the Buyer].

The [Buyer] argues that:

   -   In the communication dated 10 January 2003, the [Seller] admitted that it had entered the contract dated 29 November 2002;
 
   -   Neither in such communication, nor before, Nor after, had the [Seller] manifested that the breach of contract was due to the fact that there was no agreement as to the price and place of delivery;
 
   -   When answering the claim, the [Seller] did not raise the issue that in the contract of 29 November 2002 there was no agreement as to the price and place of delivery - instead, it presented other defenses;
 
   -   The parties' conduct showed their intention: the [Seller]'s conduct showed that it did not base its breach of contract on the non-existence of the contract, and the [Buyer]'s conduct when demanding compliance [with the contract], designating the carrier for the transport of the goods and requesting the [Seller] for its confirmation, showed that the [Buyer] understood that the contract had been concluded;
 
   -   Moreover, the carrier designation and the request for confirmation corresponded to a widespread usage and [the Division Court] acted contrary to that usage by ruling by considering that when [Buyer] made this request it was proven that the [Buyer] was not certain about whether there had been an agreement as to the date and place of delivery.

The [Buyer] concludes that the Eighth Civil Division [of the Superior Justice Court for the Federal District] failed to decide in respect to those arguments, thus its decision is not coherent, clear or specific.

However, contrary to what the [Buyer] alleges, from the text of the contested decision it can be noted that the Superior Justice Court for the Federal District did make reference to the arguments specified [by the Buyer], as it pointed out that, from the e-mails presented by the [Buyer] as evidence, that is, the e-mails dated 29 November and 2 December 2002, as well as the e-mail dated 10 January 2003, one could not be conclude that the parties had reached an agreement as to the price, the means of payment, quality and quantity of the goods and the place and date of delivery, thus that fulfilled the hypothesis contained in article 19(3) of the United Nations Convention on the International Sale of Goods, signed in Vienna, Austria, on 11 April 1980.

The Eighth Civil Division [of the Superior Justice Court for the Federal District] pointed out that the parties failed to make concrete the elements pertaining the price and the place of delivery, that this led the [Fiftieth Civil] judge to decide the way he did, and that, pursuant to the aforementioned article 19, any material limitation [to the original offer] would be deemed to be a rejection of it. Therefore, if essential elements such as the date and place of delivery were not accepted -- as the [Seller] did not accept the delivery to take place in [Seller]'s terminal in Coatzacoalcos, Veracruz on January, 2003 (Manuel Asalí pointed out that he would give [the other party] the final confirmation) -- the offer was not accepted.

The Superior Justice Court for the Federal District also specified that:

   -    By the e-mail dated 2 December 2002, the [Buyer] expressed to its counterpart that it remained unclear as to the [Seller]'s comments regarding the terminal in which the delivery of the merchandise was supposed to be made, and that therefore it asked the [Seller] to call Sue to explain this her further;
 
   -    That circumstance revealed that the [Buyer] had knowledge that everything related to the place and date of delivery had not been accepted, which was confirmed by the e-mail dated 19 December 2002, in which the [Buyer] asked its counterpart's negotiator to send the acceptance to the carrier's designation, all of which makes evident that the [Buyer] knew about the offer made on 29 November 2002.

The Superior Justice Court for the Federal District noted as well that:

   -    It could not be stated that the good faith principle that ought to exist in every sales contract had been violated, given that if there was no consensus as to the price of the merchandise and the date and place of delivery, one could not talk either about the conclusion of a contract, for in any case everything was a mere unfinalized negotiation;
 
   -    Regarding the parties' intention, it should be said that although it was true that the parties intended to negotiate the purchase of the merchandise at US $392.50 per metric ton, it was also true that in the end the operation was not finalized given the discrepancy between the parties when it was not determined when the delivery was going to be made, and it was not indicated either to which port such delivery [was headed]. The price would therefore differ depending on the place of delivery. Hence the parties' intention evidenced the lack of negotiations between them and as a result the non-existence of the sales contract;
 
   -    As for the fact that the [Seller] did not make any objections during the negotiations [that took place] between late December 2002 and January 2003 in respect to the date and place of delivery, the Superior Justice Court for the Federal District stated that the [Seller]'s offer was to make the delivery either in Coatzacoalcos or in Altamira, with a difference in the price of the product depending on the price of the place [of delivery], without any evidence being presented regarding the specification of the port where such delivery was going to be made.

Regarding the argument that the [Seller] did not claim that the contract was not concluded because of a lack of consensus in respect to the place and date of delivery, the Superior Justice Court for the Federal District noted that, contrary to what is alleged by the [Buyer], the [Seller] made this point in the Written Answer to the Claim; and it could also be concluded from the written answer [to the facts] that there was no consensus as to the place and date of delivery, nor as to the price, thus it cannot be said that the [Superior Justice Court] ignored this argument.

All of the aforesaid makes evident, contrarily to what the [Buyer] argues, that the Eighth Civil Division [of the Superior Justice Court for the Federal District] did issue a decision regarding the arguments specified by the [Buyer], since the court expressed why it reached the conclusion that there had not been a full acceptance of the offer because it was subject to a final confirmation; also pointing out that what was evidenced by the parties' intention was the lack of negotiations between them, and therefore the non-existence of the contract. Moreover, the reasons why the action was deemed not viable, were pointed out by the [Seller] when answering the claim.

It is therefore appropriate to declare this ground for appeal unfounded.

The [Buyer] further alleges that the designation it made of the carrier to transport the good, and the request of a confirmation it made to the [Seller] is in accordance with a widespread usage; and that, if the Eighth Civil Division [of the Superior Justice Court for the Federal District] considered that such request only revealed that the [Buyer] was not certain that it had agreed something as to the place and date of delivery, then [the Eighth Civil Division] misunderstood that widespread usage.

   -    That argument is unfounded, since what the Superior Justice Court for the Federal District considered for that matter, was that by e-mail dated 2 December 2002, the [Buyer] expressed to the [Seller] that the latter's comment remained unclear to it, regarding the terminal where delivery of the goods was supposed to be made, and that, because of that, it asked the [Seller] to call Sue to explain the matter to her more thoroughly;
 
   -    In the opinion of the Superior Justice Court for the Federal District, this revealed that the [Buyer] had knowledge that the [Seller] had not accepted the place and date of delivery. This fact was also supported with the e-mail dated 19 December 2002 in which the [Buyer] requested the [Seller] to send its acceptance to the carrier designation.

The aforesaid makes evident that this ground for appeal presented by the [Buyer] is not supported. In order to say that the [Buyer] had knowledge that the [Seller] had not accepted that related to the place and date of delivery, the [Buyer] based its argument primarily on the content of the e-mail dated 2 December 2002, which -- it claimed -- was supported by an e-mail dated 19 December of the same year, that is, the one in which the [Buyer] made the carrier designation, but without making any reference in its arguments to the content of the e-mail dated 2 December 2002.

[ANALYSIS OF OTHER GROUNDS FOR APPEAL PRESENTED BY BUYER]

When presenting its third ground for appeal, the [Buyer] argues that the Superior Justice Court violated the Conformity Principle, since the [Seller] did not present any exception based on the fact that the contract was not signed because of a lack of agreement as to the place of delivery.

The [Buyer] also claims that in the contested decision the Superior Justice Court for the Federal District valued such argument, by considering that the [Seller] opposed a fifth exception, which it called "Price Modification", but that in fact such exception lacks of relation to what the [Fiftieth Civil Judge] and the Superior Justice Court itself considered in order to deny the existence of the sales contract of 29 November 2002, since in that exception addressed different issues.

The [Buyer] argues as well that the Superior Justice Court for the Federal District pointed out that everything related to the argument that there was no consensus as to the place and date of delivery was enforced by the [Seller] when answering the facts of the claim; but they are just general statements, for the Division did not specify the facts nor the place in the Written Answer to the Claim in which the [Seller] addressed such issues. The [Buyer] argues too that the negotiations regarding the differences in the place of delivery derive from the [Seller]'s proposal of 10 January 2003, and lack of relation to the contract of 29 November 2002. Therefore, the [Buyer] concludes that the [Seller] was exempted based on defenses not opposed by it.

What the [Buyer] argues is unfounded, since, as was correctly pointed out by the Superior Justice Court for the Federal District, from the Written Answer to the Claim it can be noted that the [Seller] denied the existence of the contract of 29 November 2002, when manifesting that the e-mail of that date did not amount to any [purchase] order, much less to an offer of purchase, for the truth was that such purchase was subject to a final confirmation.

As a matter of fact, when answering fact number seven of the Written Claim, the [Seller] stated the following:

"7. - The seventh fact is false the way it is narrated by the [Buyer], since, although it is true (and it is so derived from the appendix 4 of the Written Claim) that [Buyer] confirmed a phone conversation with Manuel Asalí, it is also true that the e-mail sent by [Buyer], dated 29 November 2002, to Mr. Manuel Asalí, does not constitute any [purchase] order, much less an offer of purchase, for it appears to be an acceptance to the offer. However, even if it is [an order or an offer], why then did the [Buyer] request a confirmation from its counterpart? In other words, first [Buyer] agrees to purchase MEG from [Seller] (29 November 2002 10:19 17 PM) and later Manuel Asalí supposedly confirms the purchase of MEG by [Buyer], dated 30 November at 18:04 hours, but subject to a final confirmation, which indicates that there was no offer on the part of "[Seller]" to [Buyer], that there was no purchase order either [sent] by [Buyer] to "[Seller]" and that from the e-mails it can only be concluded a confirmation of [subsequent] conversations and it is so confirmed in the following points: - a) Manuel Asalí's communication expressly states that: "He would contact [his counterpart] on Monday for the definitive confirmation". That sole paragraph is sufficient to prove that there was no acceptance to the said offer of purchase [made by] the [Buyer] ..."

In its exception number two, named "Lack of Action", the [Seller] argued that no contract with the [Buyer] had ever been concluded on 29 November 2002, nor at any other date, much less in respect to the purchase of three hundred metric tons of Mono ethylen glycol fiber grade at a price of US $392.50 per to. Calling this so-called contract a contract was only a mere unilateral manifestation in bad faith on the part of the [Buyer], which was proved when giving an answer to the facts.

 In its fifth exception, termed "Price Modification", the [Seller] expressed the following:

"Article 19(3) of the United Nations Convention for the International Sale of Goods, which the [Buyer] invokes as its core argument in its Written Claim, and which provides that "Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to ALTER THE TERMS OF THE OFFER MATERIALLY" and under the parties' intention interpretation methods regulated by article 8 of the said Convention it can be derived that statements made by and other conduct of a party are to be interpreted according to his intent and that 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, and, as your Honor can attest from the written testimony of MR. SAÚL TAMAYO CANTÓN, where he literally states that finally on 10 January 2003, Manuel comes back with a proposal in which he is trying to negotiate the agreed price asking for US $8.00 per metric ton if the product is in Coatzacoalcos or US $15 per metric ton if the product is in Altamira and discards Houston, to which [Buyer] AGREES TO THE NEW PRICE IN COATZACOALCOS. Therefore, as a modification to an essential element of the contract took place, there is a new offer, and thus the beginning of a new contract."

The aforesaid demonstrates that, contrary to what the [Buyer] argues, the Superior Justice Court for the Federal District acted lawfully, by considering that the first instance judge did not compensate the deficiency in the claim in favor of the [Seller], for the truth is that the latter, in its Written Answer did oppose defenses and exceptions related to the fact that the sales contract to which the [Buyer] made reference had not been finalized, as [the [Seller]] expressly pointed out that the e-mail dated the same day did not constitute an order, much less an offer of purchase, since [such order or offer] was left subject to a final confirmation, also pointing out to the [Seller] that it was negotiating the price of the goods, depending on whether they were shipped from Coatzacoalcos or from Altamira.

It is worth noting that, precisely in the e-mail Manuel Asalí sent the [Buyer] on 29 November 2002 in response to the e-mail sent by the latter on the same date in which the [Buyer] made its offer of purchase, the [Seller] stated that it acknowledged the [Buyer]'s order with the details indicated therewith, that is, that the [Seller] was awaiting news regarding the tank terminal in Coatzacoalcos in order to load in January, since so far the [Seller] had only been confirmed as of 31 December, thus it would contact the [Buyer] to give it the final confirmation.

The aforesaid makes evident, as was pointed out by the Superior Justice Court for the Federal District, that from such e-mails it cannot be concluded that the sales contract had been finalized, that was precisely the defense and exception opposed by the [Seller], in that [the contract] was subject to a final confirmation, what was corroborated with the exception opposed by the [Seller] related to the price modification, in which the [Seller] stated that the [Buyer] had negotiated a [certain] price, asking for a difference depending on whether the goods were shipped from Coatzacoalcos or from Altamira. In other words, there was no consensus regarding the place of delivery and consequently the price. Therefore, the argument consisting in that [the Division] acquitted the [Seller] based on exceptions never opposed by the latter is unfounded, for the truth is that from the Written Answer to the Claim it can be concluded that the judge was given enough grounds to issue a decision in those aspects.

On the other hand, contrarily to what the [Buyer] repeatedly argues in its ground for appeal, this Appellate Court deems lawful the Superior Justice Court for the Federal District's consideration, in that the Sales Contract of 29 November 2002, to which the [Buyer] makes reference, was not finalized, as from the contents of the e-mails dated the same day on which the [Buyer] bases itself, it cannot be concluded that there had been full consensus regarding all the elements enumerated by the [Buyer], consisting of the quality and quantity of the merchandise, the price, the time and means of payment, and the place and date of delivery.

As a matter of fact, on the e-mail sent by the [Buyer] to Manuel Asalí- [Seller], on 29 November 2002, the [Buyer] expressed the following:

"Dear Manuel.- This is to confirm our phone conversation a few minutes ago.- [Buyer]agrees in buying [Seller] MEG as follows: Product: Monoethylene glycol, fiber grade.-

"Quantity: 3,000 MT+/5%, [Buyer]'s choice.- Quality: According to the specifications guaranteed by [Seller] as they have already been proposed by [Seller].- Price: [US] $392.50/mt FOB.- Delivery. From [Seller]'s terminal in Coatzacoalcos (details to be given by [Seller]).- Time: to ship in January, [Buyer]'s option.- Terms of payment: 30 days net after knowledge of shipment.

"Manuel, thanks for the opportunity. We are happy to be able to make this work for both of us. - Please, confirm by e-mail on behalf of [Seller] at your earliest convenience.- Kind regards, Rick."

In response to that e-mail, Manuel Asalí sent the [Buyer] another one dated on the same day, in which he stated the following:

"Rick, we acknowledge your order with the details indicated therewith. I am only awaiting news in respect to the tank terminal in Coatzacoalcos to load in January (so far I have only been confirmed as of December 31st). I will communicate with you on Monday to give you the final confirmation. Thanks for the business."

By e-mail dated 2 December 2002, the [Buyer], in response to the e-mail sent by Manuel Asalí on 29 November 2002, stated the following:

"Manuel, thanks for your confirmation on behalf of [Seller]. Here you have some contacts within [Buyer]: Finance: Rafael Ramos.- Operations: Sue Voorhis.- You can contact any of them at 203-354-1150 or by e-mail at <functiontrading.ct@Kolmarpetro.com>.- Me, I will be on vacations starting this Wednesday. However, tomorrow (Monday) I will be at home till noon and afterwards available on my cell phone until Wednesday. If you cannot reach me, feel free to contact Sue Voorhis. She will help you getting in touch with the right person. – it is not very clear for me your comment regarding the terminal, so call me or, in any case, call Sue to explain to her further."

On 10 November 2002, the [Buyer] sent another e-mail to Manuel Asalí, as follows:

"Manuel, attached you will find our carrier designation [to transport] the 3,000 metric tons of MEG fiber grade that [Buyer] has purchased from [Seller]. I have attached [such designation] in Microsoft Word and Word Perfect format. If you have any problem opening the file contact me immediately.- If you have any questions regarding the nomination, do not hesitate to contact me at 203-354-1152.- Please, send me your acceptance to the attached carrier designation at 16:00 hours, New York’s time, of today, 19 December 2002 at most."

In response to that e-mail, Manuel Asalí sent another on 10 January 2003, where he stated the following:

"Rick, the internal situation has become confusing again and I am struggling to conclude this operation.- We have at least insured already the 3,000 tons, but now I bear a lot of internal pressure to guarantee that we do not lose money with this operation. As things are right now, we are below our limits, which means that this sale will cost us money. If that happens and we cannot fix things, I will see myself obliged to cancel the entire operation, though I know that is not the best thing for any of the parties (and the final costs could be higher later, I know). Due to that fact, I am looking for a way to solve the problem and I can propose you two alternatives. – 2.- If we depart from Coatzacoalcos, it will be then necessary for me to raise the sale price from US $392.50 per ton to US $400. It can seem ridiculous, but this difference allows me to at least justify the transaction from our side. However, Coatzacoalcos still bears the disadvantage that the tanks could or could not be available; we will have an answer in that respect by Tuesday next week at most. 2.- (sic) If we load in Altamira, then our logistics costs would raise the sale price to US $415 per ton. The advantage Altamira offers is that we have tanks available immediately and we can move the product quickly in order to load at any time.- I am fully aware that I am not upholding our original agreement, but I am afraid that at this moment this would be the only quick and direct solution to the problem. I do not know what your final sale price for your client in Asia will be, but considering the recent price reports, there could be a chance for us to place ourselves above the price levels, that also allows me not to fail you or your client.- This is the situation and my proposal. Please, tell me what you think. Right now I am in the office and we could discuss this at any time of the day."

From the aforesaid it can be concluded that, contrary to what the [Buyer] claims, no sales contract was finalized on 29 November 2002, but that there were only several negotiations between the parties in order to reach an agreement regarding the purchase of the mentioned good, and especially regarding the place and date of delivery, and consequently the price of the merchandise.

It is not true that in the e-mail dated 29 November 2002, Manuel Asalí only kept for himself a detail regarding the specification of the tank terminal in Coatzacoalcos, since, what is for sure, is that he pointed out that he was expecting news with respect to the tank terminal in Coatzacoalcos in order to load in January, given that, by then, he had only been confirmed up to 31 December. Therefore, he would contact the [Buyer] [the Monday after] to give it the final confirmation.

The contents of that e-mail reveal that there was not a full acceptance in respect to the goods, as in any case that was subject to a final confirmation regarding the tank terminal in Coatzacoalcos to load in January. Hence it is incorrect that this was a mere operations detail and not an essential element of the contract. By all means, if the tank terminal in Coatzacoalcos was not confirmed, that evidences that there was not an acceptance to the offer as to the date and place of delivery, notwithstanding that, on the mentioned e-mail, Manuel Asalí had not expressly manifested that he disagreed with the delivery being made in Coatzacoalcos, as from we can derive that from the [lack of confirmation], to which the tank terminal was subject.

   -    The aforesaid is confirmed with the content of the e-mail dated 2 December 2002, sent to Manuel Asalí by the [Buyer], in which the later expressed that Asalí’s comment with respect to the terminal remained unclear to him, and therefore the [Buyer] asked Asalí to contact him or Sue in order to explain that further. In other words, that also reveals that there was no prior confirmation or acceptance as to the place and date of delivery.
 
   -    This is also confirmed with the content of the e-mail dated 10 January 2003, sent by Manuel Asalí to the [Buyer], and in which Asalí expressed that the price [of the goods] would vary depending on whether the product World be shipped from Coatzacoalcos or from Altamira, that is, with this [e-mail] it is confirmed that there was no consensus regarding the place of delivery and consequently the price, since from the beginning the tank terminal to load in January was subject to a final confirmation.

Therefore, the [Buyer] is not benefited by the fact that in this e-mail, Manuel Asalí had stated: "I am fully aware that I am not upholding our original agreement"; for the truth is, as it was pointed out above, that from the e-mails of 29 November 2002, from which the [Buyer] seeks to base its argument, it cannot be noticed that the offer had been fully accepted with respect to the place and date of delivery, as this was subject to a final confirmation, which [on the other hand] cannot be concluded from the records that it had been given by the [Seller].

As a result, it is incorrect to say that the e-mail of 10 January 2003 constitutes a new operation that was expected to substitute for the one made on 29 November 2002, given that, as we conclude, the contract to which the [Buyer] makes reference was not finalized on this latter date, as there was no acceptance regarding the place and date of delivery. Therefore, in any case, the only thing the above-mentioned e-mails reveal is the existence of negotiations between the parties in order to reach an agreement, but not that there was a sales contract for which was to be substituted a new contract.

The [Buyer] argues that the designation of the carrier to transport the goods, as well as the request for conformation it made to the [Seller] follows a widespread usage; and therefore, if it notified the [Seller] the nomination of the carrier, that fact does not entail that the [Buyer] had doubts as to the place and date of delivery, nor that it asked for a confirmation of the delivery of the merchandise, but only a confirmation of the carrier itself, thus the [Buyer] asserts, the conclusion reached by the Superior Justice Court for the Federal District conclusion is in error.

   -    That argument is unfounded, for what the Superior Justice Court for the Federal District considered in that matter, was that by an e-mail dated 2 December 2002, the [Buyer] expressed the [Seller] that it remained unclear to the [Buyer] the [Seller]’s comment regarding the terminal where the delivery of the good was going to be made, and that therefore it requested the [Seller] to call Sue and explain her more thoroughly. The Eighth Civil Division considered as well that such a circumstance revealed that the [Buyer] had knowledge that the [Seller] had not accepted the points relative to the place and date of delivery, a fact that was also supported by an e-mail dated 19 December 2002, in which the [Buyer] requested the [Seller] to send its acceptance to the carrier’s designation.
 
   -    The aforesaid makes evident that the ground for appeal alleged by the [Buyer] is unfounded, since what [Buyer] primarily based its argument on, in order to assert that the [Buyer] had knowledge that there was not an acceptance as to the place and date of delivery, was the content of the e-mail dated 2 December 2002, where such statement was made, also arguing that this was confirmed with the document dated 19 December of the same year, that is, the one to which the [Buyer] makes reference, the one in which it made the designation of the carrier and asked the [Seller] to send its acceptance to the designation, without noticing from the statements adduced that the [Buyer] contests the contents of the e-mail dated 2 December 2002.
 
   -    Therefore, it cannot be successfully argued either that the Superior Justice Court for the Federal District had not heeded article 8 of the United Nations Convention for the International Sale of Goods, in respect to the intention of the parties during the negotiations, as from what has been expressed above it can be noted that there was not a full acceptance to the purchase offer that the [Buyer] made the [Seller] on 29 November 2002, as that was subject to the final confirmation regarding the tank terminal in Coatzacoalcos to load in January, and without being able to notice from the records such confirmation. It is thus incorrect that the good faith principle had been violated.

Consequently, the decision issued by the responsible authority was according to the Law, in that the existence of a sales contract dated 20 November 2002 was not proved, thus fulfilling the hypothesis established by article 19(3) of the aforementioned Convention, which provides that additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.

Because of this, it must be concluded, that if the tank terminal in Coatzacoalcos to load in January was subject to a final confirmation, and from the records it cannot be concluded that such confirmation was made, but only a series of negotiations between the parties, then the contract was not finalized, as there was no full acceptance regarding the place and date of delivery.

In these circumstances, having concluded that [Buyer]’s grounds for appeal are unfounded, the decision of this Court is to deny the [Buyer] the amparo, denial that is made extensive to the enforcement acts [for the decision to be made effective] claimed from the Fiftieth Civil Judge of the Federal District, as the [Buyer] does not contest such enforcement because of procedural errors [of such Judge].

It is applicable to support the aforesaid, the case-law number 91, visible in page 72 of the Federal Judicial Bulletin 1917-2000 Appendix, Volume VI, General Matters, which states:

"EXECUTIVE AUTHORITIES. DENIAL OF AMPARO AGAINST ORDERING AUTHORITIES.

– If amparo is denied against the authorities that order the execution of the act that is deemed to be violating of [Constitutional] guarantees, it must also be denied in respect to those authorities that only executed the contested act because of their hierarchy".

Because of what has been exposed and sustained, and based as well in articles 103 and 107 of the Constitution, and articles 76 thru 79 of the Amparo Act it is decided:

ONE: The Justice of the Union does not cover nor protect Appellant [Buyer], against the acts claimed from the Eight Civil Division and the Fiftieth Civil Judge, both from the Superior Justice Court of the Federal District, consisting in the definitive decision dated 18 January 2005, held in the trial 2700/2004, and its enforcement.

Notify this. Enforce this. With a copy of this decision the writs and records are sent back to its place of origin and, at its time, file this dossier as a case fully concluded.

IN THIS WAY, the case was decided by the First Appellate Court on Civil Matters of the First Circuit, by the unanimous votes of the Justices, President María del Carmen Arroyo Moreno, Luz María Perdomo Juvera and Víctor Francisco Mota Cienfuegos, acting as Opining Judge the first of the aforenamed, all of whom, pursuant to article 41, subsection V, of the Federal Judiciary Power Organization Act, sign jointly with the Secretary of Arrangements, who authorizes and certifies thereat.

JUSTICE PRESIDENT
MARÍA DEL CARMEN ARROYO MORENO
SECRETARY OF ARRANGEMENTS
ENEYDA MARLENE ZEPEDA LIÉVANO

In Mexico City, Federal District, 10 March 2005, the Secretary of Arrangements of the First Appellate Court on Civil Matters of the First Circuit.

C E R T I F I E S: That the present page belongs to the number one hundred and twelve, of the decision that on the mentioned date was given in the direct amparo civil trial registered with the number 127/2005, that was initiated by [Buyer], against the act claimed from the Eight Civil Division and the Fiftieth Civil Judge, both from the Superior Justice Court of the Federal District, consisting in the decision dated 18 January 2005. All of which is entered in the record for all the legal effects that might take place.

I so certify.

SECRETARY OF ARRANGEMENTS
ENEYDA MARLENE ZEPEDA LIÉVANO


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant of the United States is referred to as [Buyer] and the Defendant-Respondent of Mexico is referred to as [Seller].

** Adrián Cisneros Aguilar recently graduated from Universidad Panamericana Faculty of Law in Mexico City. In 2001 he was a Universidad Panamericana Faculty of Law's Academic Contest scholarship recipient. During 2002-2003, he was a research fellow under Dr. Salvador Cárdenas, one of the leading scholars in Mexico in Law History. In 2003, Mr. Cisneros was a law clerk at the Notary Public No. 138 of Mexico City, and in 2004, he was selected to study at McGill University Faculty of Law, in Montreal, Canada, under the North American Consortium on Legal Education academic exchange program. Mr. Cisneros has also worked as an assistant researcher under Lic. Pablo Avilés, translating books, ancient and recent documents from French and English to Spanish, as well as acting as assistant Professor in courses taught to national and foreign students. He was also a member of the Editorial Staff of Diké, the Law Faculty's student journal. Since 2005, Mr. Cisneros has been collaborating in the law firm Fonseca, Lozano y Treviño and is currently working on his Law degree thesis.

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