CISG CASE PRESENTATION

Canada 6 October 2005 Canadian International Trade Tribunal (Cherry Stix Ltd. v. President of the Canada Borders Services Agency)
[Cite as: http://cisgw3.law.pace.edu/cases/051006c4.html]

Case Table of Contents

• Case identification
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries

• Guide to links contained in case presentations

Case identification

DATE OF DECISION: 20051006 (6 October 2005)

JURISDICTION: Canada

TRIBUNAL: Canadian International Trade Tribunal

JUDGE(S): Ellen Fry (Presiding Member), Patricia M. Close, Zdenek Kvarda (Members)

CASE NUMBER/DOCKET NUMBER: AP-2004-009

CASE NAME: Cherry Stix Ltd. v. President of the Canada Borders Services Agency

CASE HISTORY: Unavailable

SELLER'S COUNTRY: People's Republic of China, among other countries

BUYER'S COUNTRY: United States

GOODS INVOLVED: Women's and children's garments

Classification of issues present

APPLICATION OF CISG: This is a Canadian customs law case. The U.S. purchaser of goods from the PRC, among other countries, imported the goods for sale in Canada. A relevant issue was, when did the U.S. purchaser purchase the goods. Provisions of the CISG were cited in this context.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 14 ; 18 ; 23

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

Editorial remarks

References to the CISG are in a section of the opinion entitled "When Did [the U.S. Purchaser of the Goods] Cherry Stix 'Purchase' the Goods?" that reads as follows:

24. The Tribunal must determine when Cherry Stix "purchased the goods from its overseas suppliers. Although the term "purchase" is not defined in the [Canadian Customs] Act or the Regulations, subsection 48(1) of the Act, which provides the context for subparagraph 2.1(c) of the Regulations, contemplates a sale of goods for export to Canada. The [Canada Borders Service Agency (CBSA)] and Cherry Stix both agreed that a "purchase of goods is part of a sale of goods, but could not agree on the point in a sale at which a "purchase" occurs. Cherry Ttix argued that it occurs when the buyer takes physical possession of the goods. The CBSA argued that it depends on the intention of the seller and the buyer.

25. Resolution of this issue necessitates the consideration of general contract law. For a contract to arise, one person must make an offer and another person must accept it. In common law, an offer is a definite promise to be legally bound once its terms are accepted. Likewise the United Nations Convention on Contracts for the International Sale of Goods, 1980, [3] which accords with generally accepted contract principles, [4] provides that an offer is defined as "[a] proposal for concluding a contract addressed to one or more specific persons ...[that] is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance." [5] According to the CISG, a proposal is sufficiently definite if "... it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price." In common law, an acceptance is valid if the person who receives the offer actually communicates, to the person who made the offer, that he accepts all the terms of the offer. Under the CISG, the acceptance of an offer generally becomes effective at the moment when it reaches the person who made the offer. [6] A contract for the international sale of goods is formed "... at the moment when an acceptance of an offer becomes effective ..."

[...]

3. 1980, U.N. Doc. A/Conf. 97/18 (1980); 19 Int'l Legal Material 668 (1980 [CISG]. The CISG generally applies to contracts of sale of goods between parties whose places of business are in different countries. Both the United State, in which Cherry Stix had a place of business, and the People's Republic of China, which was the place of business of at least one of the overseas suppliers, were parties to the CISG. As for the other purchases by Cherry Stix involving suppliers in Chinese Taipei, which is not a party to the CISG, the provisions of the CISG on the formation of contracts sufficiently accord with generally accepted contract principles to be nevertheless of guidance.

4. H. Gabriel, Contracts for the sale of goods: a comparison of domestic and international law (Oceana, New York, 2004) at 66.

Article 14 of the CISG.

According to Articles 18(2) and (3) of the CISG.

Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1081&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): CISG-Canada website <http://www.yorku.ca/osgoode/cisg/documents/CherryStixLtd.v.PresidentoftheCanadaBordersServicesAgency.CITT.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1081&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable