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CISG CASE PRESENTATION

European Court of Justice 20 February 1997 (Mainschiffahrts-Genossenschaft eb (MSG) v. Les Gravihres Rhinanes SARL)
[Cite as: http://cisgw3.law.pace.edu/cases/970220eu.html]

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

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Case identification

DATE OF DECISIONS: 19970220 (20 February 1997)

JURISDICTION: European Court of Justice

TRIBUNAL: European Court of Justice

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: C-106/95

CASE NAME: Mainschiffahrts-Genossenschaft eb (MSG) v. Les Gravihres Rhinanes SARL

CASE HISTORY: Referred to European Court by order of BGH (Germany) dated 6 March 1995

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: France (defendant)

GOODS INVOLVED: Not a contract for sale of goods (a contract for time charter of a vessel)


Classification of issues present

APPLICATION OF CISG: No (case contains dicta references to the CISG)

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issues: Articles 9(2) ; 18(1)

Classification of issues using UNCITRAL classification code numbers:

9D2 [International usages; practices established by the parties: usages impliedly made applicable to contract);

18A [Criteria for acceptance]

Descriptors: Usages and practices ; Acceptance of offer ; Commercial letters of confirmation

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Editorial remarks

Editor: Albert H. Kritzer

Case involves an interpretation of Article 17 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, and the binding effect of a statement of jurisdiction set out in a Commercial letter of confirmation. The opinion of Advocate General Tesauro contains several dicta references to the CISG.

Citing CISG Article 9(2) by analogy and assessments of related provisions, he states that "it is not enough for a jurisdiction clause to have been concluded in a form which accords with a usage in the particular trade or commerce concerned of which the parties were or ought to have been aware; the usage must have been -- 'on the one hand, widely known in international trade or commerce, and, on the other, regularly observed by parties to contracts of the type involved in . . . the particular trade or commerce concerned.'"

CISG Article 18(1) -- "A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance" -- is also quoted in a line of reasoning that concludes: "In the final analysis, in order to establish whether the silence of one party in relating to a Commercial letter of confirmation constitutes a manner of acceptance and hence means that a jurisdiction clause has validly been concluded, it is necessary to prove the existence of such a usage on the basis of the criteria set out above."

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstracts: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (English): [1997] European Community Reports I-911-946 [I-927 n.34]; [1997] 1 All ER (EC) 385, [1997] 3 WLR 172; also reported in Lexis

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.110; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 9 paras. 16, 20, 22, 24, 25

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Pace Law School Institute of International Commercial Law - Last updated August 8, 2005
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