Argentina 14 October 1993 Appellate Court (Inta v. Officina Meccanica) [case digest]
[Cite as: http://cisgw3.law.pace.edu/cases/931014a1.html]
Primary source(s) for case presentation: Case text
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 45.626
CASE HISTORY: 1st instance Juzgado Nacional (Buenos Aires) 1 April 1993 [affirmed]
SELLER'S COUNTRY: Italy (defendant)
BUYER'S COUNTRY: Argentina (plaintiff)
GOODS INVOLVED: Machinery
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ARGENTINA: Cámara Nacional de Apelaciones en lo Comercial
Inta S.A. v. MCS Officina Mecánica S.p.A., 14 October 1993
Case law on UNCITRAL texts (CLOUT) abstract no. 700
Reproduced with permission of UNCITRAL
This case deals with whether a choice of forum clause included on an invoice provided by the seller should be considered to be part of the contract between the buyer and the seller.
The Argentine buyer purchased goods from the Italian seller. The invoice provided by the seller included a choice of forum clause in favour of an Italian forum. Later on the buyer brought action in front of an Argentinean court claiming lack of conformity of the goods. The lower court declined its jurisdiction.
On appeal, the buyer disputed the applicability of the choice of forum clause, arguing that it had not signed the invoice. Therefore, it was argued, the invoice did not display the explicit manifestation of the buyer's decision to submit to the competence of a foreign judge, as required by Argentinean law.
The Court noted that, pursuant to article 4 CISG, the Convention was not applicable to "the determination of jurisdictional questions". Thus the issue was to be resolved according to Argentinean law as the applicable law. However the Court decided to refer also to the CISG in its reasoning, since the Convention would provide further support to the conclusion that the forum selection clause was enforceable.
The Court first noted that in this instance, the invoice had been sent prior to the conclusion of the contract, and that it had not been disputed by the buyer, save for an issue relating to the size of part of the object sold. Therefore, the buyer should have disputed the issue of the choice of forum clause prior to the conclusion of the agreement, rather than simply maintaining mental reservations about it.
Furthermore, the Court, referring to CISG Article 18(3), noted that assent to an offer may occur through committing an act such as sending the merchandise or paying the price, and that acceptance takes place the moment in which the act of acceptance is made.
The Court noted that the buyer signed the invoice in order to obtain credit to pay for the merchandise, and considered this to be tacit acceptance of the conditions of the offer.
Consequently, the choice of law clause was to be considered binding upon the buyer, and Italy was the appropriate forum for the dispute. Similar conclusion was to be reached pursuant to the application of Argentine jurisdictional rules.Go to Case Table of Contents
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code numbers:
8C4 [Intent (interpretation in light of surrounding
circumstances): conduct subsequent to agreement];
18A ; 18A3 ; 18C [Criteria for acceptance; Silence or inactivity
insufficient; Assent by performing an
8C4 [Intent (interpretation in light of surrounding circumstances): conduct subsequent to agreement];
18A ; 18A3 ; 18C [Criteria for acceptance; Silence or inactivity insufficient; Assent by performing an act]
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Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.295
"Two cases from Argentina upheld forum selection clauses in standard forms, but the rationale employed by the courts regarding the CISG is not clear. In one case, an Argentine buyer maintained that a forum selection clause was invalid because it was written in a foreign language on the back of the seller's invoice. See Cámara Nacional de Apelaciones en lo Comercial [Second Instance Court of Appeal] [CN], Division C, 44.786, Mar. 15, 1991 (Arg.), available at <http://cisgw3.law.pace.edu/cases/910315a1.html>. The trial court found that the clause was part of the agreement. On appeal, the buyer argued that Argentine law required express written acceptance of such provisions. The appellate court, however, stated that forum selection clauses are valid even if contained in a standard form, under the law of Argentina, unless there is a disparity of bargaining power between the parties. Id. A subsequent case in Argentina reached the same result. In that case, however, a Procurator noted that Article 4 of the CISG excludes questions of validity and decided the validity of the case according to the lex fori, referring to the CISG only for further support that the clause was enforceable. See Cámara Nacional de Apelaciones en lo Comercial [Second Instance Court of Appeal], Div. E., 45.626, Oct. 14, 1993, ... According to one commentator, Article 4, which states that validity issues are beyond the scope of the Convention, and Article 81(1), which "provides a clause for the settlement of disputes with a certain degree of autonomy vis-à-vis the other contractual terms," should have steered the Argentine tribunals away from considering the CISG in these cases. See Garro, Recent Developments, supra note 120, at 236 (maintaining that neither the Quilmes nor the Inta decision addressed whether a contract was validly concluded under Article 19 of the CISG as the forum selection clause was a material alteration of the offer)."Go to Case Table of Contents
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=45&step=Abstract>
Italian: Diritto del Commercio Internazionale (1995) 228 No. 46
Spanish: CISG-Spain and Latin America database at http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sargen6.htm
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America database at http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rargen6.htm; El Derecho 32 (1994) No. 8483, 25 April 1994, 3-7 = 157 (1994) 129-130, 131-137; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=45&step=FullText>
Translation: Unavailable; case digest presented below
CITATIONS TO COMMENTS ON DECISION
English: Ferrari, International Legal Forum (4/1998) 138-225 [226 n.798 (scope of CISG: validity of a forum selection clause)]; Gillette/Walt, Sales Law Domestic and International (Foundation Press 1999) 164 n.107 [validity of forum selection clause]; Garro, 17 Journal of Law & Commerce (1998) 219-244 [the analysis of Inta v. Meccanica is presented at pages 235-238 of this commentary];  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 8 paras. 36, 54, 56 Art. 18 para. 7 Art. 78 para. 38
Finnish: Huber/Sundström, Defensor Legis (1997) 747 [750 n.14]
French: Garro, in: Emptio-Venditio Internationales, Neumayer ed. (Basel 1997) 219-220; Zuppi, in: Sebastien Bettschart ed., Les ventes internationales (CDICAC 1998) Vol. 36, 23 [29-31]
German: Schlechtriem, Internationales UN-Kaufrecht (1996) 52 n.29
Spanish: Martorell, El Derecho (25 April 1994) 3-4Go to Case Table of Contents
EDITOR: Albert H. Kritzer
CISG issues ruled upon:
Scope of Convention/Jurisdiction and venue. The opinion of the Prosecutor (Fiscal de Cámara ) which was adopted by the Court of Appeals states:
"[T]he [CISG] is not directly applicable to the determination of jurisdictional questions. It is clear that Article 4 of the Convention states that the Convention regulates only the formation of an international contract for the sale of goods and the rights and obligations of the seller and buyer that flow from the contract. The Convention does not govern: a) the validity of the contract nor that of any of its terms or usages; b) the effects that the contract may have on the property in the goods sold."
Acceptance, criteria for/Silence or inactivity as assent/Standard terms and conditions/Battle of the forms/Intent, conduct subsequent to agreement/Jurisdiction and venue. Although concluding that the CISG "is not directly applicable to the determination of jurisdictional questions" (Article 4), the opinion of the Prosecutor (Fiscal de Cámara) which was adopted by the Court of Appeals states:
"[The buyer] claims that there was no voluntary agreement concerning choice of forum since the choice-of-forum clause was printed by the seller on its forms without warning to the buyer and was not signed by the buyer. [Buyer] claims that an agreement regarding choice of forum must be manifested explicitly and unequivocally by the parties. The [buyer] notes that the [CISG], applicable to this case, provides that silence or inactivity, by itself, does not constitute acceptance (Art. 18 of the Convention. . . ."
Citing support for choice-of-forum clauses under a bilateral treaty on Judicial Assistance and Recognition and Enforcement of Judgements in civil matters entered into between Argentina and Italy that "recognizes the possibility of an express agreement on choice of forum" and support also under internal Argentina law in the case of an international commercial contract such as this, the opinion states:
"With this background, we may analyze the validity of the choice-of-forum clause inserted in the pro forma invoice sent from the [seller] to the [buyer] in this case. The [buyer] alleges that, inasmuch as the clause was not signed and was stamped 'unilaterally by the seller', it does not display the explicit manifestation of the [buyer's] decision to submit to the competence of the [foreign] judge as is required by [Argentine law]. The buyer stresses that silence does not equal assent when there exists no obligation to speak and that, in this case, there would not have been an express acceptance of this stipulation by the buyer.
"It ought to be observed that the insertion of choice-of-forum clauses in invoices is unsuitable, since the invoice is not a contractual instrument, and the form in which the clause is presented would certainly merit objections. Moreover, the other party would not be considered to have given a tacit acceptance inasmuch as the law does not impose the obligation to express disagreement.
"However, we ought to distinguish a case in which the invoice relates to a contract previously concluded between the sender and the receiver, from a case in which the invoice is sent before the conclusion of the contract ('pro forma') or when the invoice serves as an offer [citing Argentine law]. In such a case, the confirmation of the party to whom the goods are being sent -- whether express or tacit -- is necessary for the conclusion of the contract. In this matter, no one questions that the conditions of the obligations assumed were 'debated' in invoices. Those conditions could have been modified by the buyer inasmuch as the buyer did not approve of the specifications in the offer made.
"Upon having accepted the documentation, without making objection to anything except for the size of part of the object sold, we must accept the conclusion that the buyer accepted the other conditions proposed. If not, the buyer should have manifested his disagreement. The contrary conclusion would encourage parties to allege mental reservations. This is especially true, I repeat, in a case such as this where we are not dealing with the unilateral insertion of a choice-of-forum clause after the conclusion of the contract, but with a condition inserted in the very same instruments of which the contract is composed.
"It ought to be remembered that, in conformance with the [CISG] (Article 18) 'a statement made by or other conduct of the offeree indicating assent to an offer is an acceptance' (sub-section 1). This includes the acceptance of verbal offers (although such acceptance must be immediate) (sub-section 2). The Convention also establishes that the addressee may indicate his acceptance by executing an act such as sending the merchandise or paying the price, without communicating with the offeror, if that is provided for by the offer, by prior practice of the parties or by custom, and that the acceptance takes place the moment in which the act of acceptance is made (sub-section 3).
"I observe that, in the present case, the [buyer] has signed the invoice to present it to BANADE in order to obtain credit to pay for the merchandise and this may be considered a tacit acceptance of the conditions of the offer from the contractual point of view. [Note: Although not cited in the opinion, CISG Article 8(3) states: "In determining the intent of a party . . . due consideration is to be given to all relevant circumstances of the case including . . . any subsequent conduct of the parties.]
"Furthermore, it is certain that in this framework the Convention provides that silence or inactivity in itself will not constitute acceptance, but in this case there were repeated acts that were taken to conclude the contract and, by the standards discussed above, I believe that the validity of the choice-of-forum agreement ought to be accepted. This is especially so where there was no disagreement with the clause and, even less, abuse of a dominant position by one party over the other.
"Although I am inclined to admit the validity of the choice-of-forum clause entered into by the parties, I believe it would be useful to judge the issue from the point of view of our local jurisdictional rules as well."
From the point of view of Argentine jurisdictional rules ("place of performance"), the opinion also concludes that Italy, not Argentina, is the appropriate forum.Go to Case Table of Contents