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CISG CASE PRESENTATION

United States 19 February 1998 Federal District Court [North Dakota] (PrimeWood, Inc. v. Roxan GmbH)
[Cite as: http://cisgw3.law.pace.edu/cases/980219u1.html]

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

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Case identification

DATE OF DECISION: 19980219 (19 February 1998)

JURISDICTION: United States [federal court]

TRIBUNAL: U.S. District Court, Southern District of New York [federal court of 1st instance]

JUDGE(S): Webb

CASE NUMBER/DOCKET NUMBER: A3-97-28

CASE NAME: PrimeWood, Inc. v. Roxan GmbH & Co Veredelungen et al.

CASE HISTORY: Subsequent proceeding same court 27 May 1999 [CISG not at issue]

SELLER'S COUNTRY: Germany (defendant)

BUYER'S COUNTRY: United States (plaintiff)

GOODS INVOLVED: Plastic foil


Case abstract

UNITED STATES: [Federal] District Court for North Dakota, 19 February 1998
(Primewood, Inc. v. Roxan GmbH & Co. Veredelungen)

Case law on UNCITRAL texts (CLOUT) abstract no. 610

Reproduced with permission of UNCITRAL

Abstract prepared by Peter Winship, National Correspondent

The issue before the court was whether the case should be dismissed before trial because a contract term designated another forum to hear disputes between the parties.

A corporation with its place of business in the United States purchased plastic foil manufactured by a company with its place of business in Germany. The buyer used the plastic foils as a finish for cabinet doors. When the buyer's customers complained that the doors were yellowing, the buyer notified the seller. The seller denied responsibility. The buyer brought claims for breach of contract and tort. The seller moved to dismiss because the court lacked jurisdiction.

The court declined to dismiss the buyer's suit. Without describing how the parties concluded their contracts, the court stated that under domestic law a proposed forum selection term was a material alteration and therefore does not become part of the parties' contract unless they expressly agree to it. The court noted that there would be the same result if the CISG governed so that it was unnecessary to determine whether the Convention or national law governed.

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Classification of issues present

APPLICATION OF CISG: Court did not resolve this issue ruling that the same conclusion is reached whether the contract is governed by the UCC or CISG

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 19

Classification of issues using UNCITRAL classification code numbers:

19C [Modifications that are material]

Descriptors: Acceptance of offer

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Editorial remarks

EDITOR: Albert H. Kritzer

The sole reference to the CISG is:

"Under U.C.C. 2-207, codified in North Dakota at North Dakota Century Code section 41-02-14, where there is no express intent to agree to additional proposed terms, such terms become part of a contract between merchants unless they materially alter the contract. A forum selection clause is considered material, thus requires the express consent of the parties to become a term of the Contract. See One Step Up, Ltd. v. K Mart Corp., No. 97 CIV. 1469, 1997 WL 391117, at *2 (S.D.N.Y. July 11, 1997). Therefore, the forum selection clause only becomes part of the contract if expressly agreed to by PrimeWood and this has not been established by the Roxan defendants. The same conclusion is reached under application of the United Nations Convention on Contract for the International Sale of Goods (CISG), see e.g., Pl.'s Br. Opp'n Roxan Defs.' Mot. Dismiss at 32-34, thus a choice of law analysis is unnecessary."

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (English): 1998 WL 1777501 (D.N.D.)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.294-295; Keith A. Rowley, "The Convention on the International Sale of Goods", in: Hunter ed., Modern Law of Contracts, Thomson/West (03/2007) § 23:16

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Pace Law School Institute of International Commercial Law - Last updated January 9, 2008
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