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CISG CASE PRESENTATION

France 22 April 1992 Appellate Court Paris (Fauba v. Fujitsu)
[Cite as: http://cisgw3.law.pace.edu/cases/920422f1.html]

Primary source(s) of information for case presentation: Michael R. Will; UNCITRAL abstract


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Case identification

DATE OF DECISION: 19920422 (22 April 1992)

JURISDICTION: France

TRIBUNAL: CA Paris [CA = Cour d'appel = Appeal Court]

JUDGE(S): Fouillade, président; Duclaud and Neher-Tannenbaum, conseillers; Morin, greffier

CASE NUMBER/DOCKET NUMBER: 92-000 863

CASE NAME: Fauba France FDIS GC Electronique v. Fujitsu Microelectronik GmbH

CASE HISTORY: 1st instance Trib. com. Paris (No. 31859) 6 November 1991 [CISG overlooked]; 3rd instance CASS. (Supreme Court) 4 January 1995 [affirmed]

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: Electronic components


Case abstract

FRANCE: Paris Court of Appeal 22 April 1992

Case law on UNCITRAL texts (CLOUT) abstract no. 158

Reproduced with permission from UNCITRAL

The plaintiff, a French buyer, had ordered on 22 March 1990 several batches of electronic components from the defendant, a German seller, through the defendant's liaison office in France. The buyer had accepted the price previously stated by the supplier but had requested its reduction in accordance with the drop in prices on the market. In its acceptance of the order, the seller had replied that the prices could be adjusted upwards or downwards, as agreed, in accordance with the market, but that various specific items could not be delivered. A telephone conversation took place between the parties on 26 March, and the German seller sent his partner a telex on the same day recording the latter's agreement to amend one item of the order. By telex of 13 April, the French buyer changed his order once again, a change which the German seller stated that it could not accept for short-term deliveries.

Before the Paris Court of Appeal, the [seller] maintained that the contract had not been formed because of alteration of the initial order which had led to disagreement between the parties, and invoked for that purpose article 19 CISG. The [seller] further ruled that, under article 4 of that instrument, there were grounds for taking account of French common law with regard to the purchase price.

The Court of Appeal held that the seller's liaison office based in France did not have due legal personality and that the contract was therefore an international sales contract concluded between a French company and a German company. It found that CISG (art. 1(1)(b)) was applicable in the case in point.

Regarding the formation of the contract, the Court of Appeal held that the contract had been validly formed by virtue of the consent of the parties to the object at issue and the price and that it had become effective on receipt by the buyer of the seller's acceptance of the order in accordance with article 23 CISG. In addition, since the buyer had argued that the seller had delivered surplus goods, the Court of Appeal held that if the quantity of goods delivered did not correspond to the quantity specified in the order, it was the responsibility of the buyer to return the surplus goods immediately. Finally, regarding the price, the court held that the parties' agreement regarding the adjustment of the price in accordance with the market had not rendered the price indeterminable; it did not, however, state the legal principles whereby it considered the price to be determinable.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 10 ; 14(1) ; 19(2) [Also cited: Articles 4 ; 23 ]

Classification of issues using UNCITRAL classification code numbers:

10A [What constitutes place of business: liaison office];

14A12 [Criteria for an offer (basic criterion: intention to be bound in case of acceptance): definiteness of key conditions, determination of quantity and price];

19B [Acceptance with immaterial modifications]

Descriptors: Business, place of ; Offers ; Acceptance of offer ; Price

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 292-293

CITATIONS TO TEXT OF DECISION

Original language (French): CISG - France ("http://Witz.jura.uni-sb.de/CISG/decisions/220492v.htm"); Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris: 1995) 135-139; Banque de Données Juridiques Française (Juris-Data) No. 024410 (1992); Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=142&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [158 n.177 (liaison office not "place of business")]; Honnold, Uniform Law for International Sales (1999) 33 [Arts. 1(1), 10 (place of business)], 185 [Art. 19 (materiality of answer that deviates from offer)], 357 [Art. 55]; Bonell/Liguori, Uniform Law Review (1996-1) 147 [163 n. 75, n. 76]; Curran, 15 Journal of Law and Commerce (1995) 175-199 [179-180 and 187-192] [summary translation of comments on this case and related cases by Witz in Les premières applications, cited below]; Lookofsky, Understanding the CISG in Scandinavia (1996) 12 n.1; Bernstein/Lookofsky, CISG/Europe (1997) 10 n.1; Schlechtriem in Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (Oxford 1998) [Art. 14] 108 n. 24; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.7; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) [the place of business criterion 65-67 (this case at 67), buyer's performance: paying the price 110-113 (this case at 112-113)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) §: 2-2 n.1; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.197 ("term specifying revision of price according to market trends was sufficiently definte")

Finnish: Huber/Sundström, Defensor Legis 91997) 747 [758 n.55]

French: Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris: 1995) 12 n.29, 26-29, 59 n.21, 61 n.23, 62-70; Witz, Dalloz Sirey (1995) 143 [144 n.16, 145 n.30]; Witz, Emptio-Venditio Internationales, Neumayer ed. (Basel 1997) 431, 440-442

Greek: Witz/Kapnopoulou, Ellenike epitheorese europaikou dicaiou (1995) 561 [567-568 n.23-24, 572 n.41, 576 n.54]

Italian: Liguori, Foro italiano (1996-IV) 145 [165 n. 96, n. 97]

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Pace Law School Institute of International Commercial Law - Last updated September 27, 2004
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