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Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199

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The Parties' Identity

Even the identity of parties has been the subject of controversy, as in a German case in which A, an individual, made a sizable order for clothing from an Italian seller, giving the seller his card, on which his name appeared above that of "AMG Import-Export. [LG Hamburg 26 September 1990]." [28] While no such business existed, a similarly denominated one did ("AMG GmbH"). A later declared that he had been ordering on behalf of the latter, although he did not reveal this at the time of the sale. A offered the seller a letter of exchange drawn on AMG GmbH, which the seller accepted. The seller later sued A when payment was not made on the letter (pp. 51-52). The court had to decide if the Italian seller's contract was with A, or with the company on whose behalf A now claimed to have contracted. The judges applied the CISG, relying on Article 8, and reasoned that the dispositive issue was what the seller believed, rather than whether A in fact was legally able to bind AMG GmbH (p. 52).[29] The judges concluded that national law was applicable to the issue of deciding to what extent A's representations bound the company(ies), but that the CISG applied to the determination of the extent to which A had bound himself (p. 53). Similarly, in a 1992 arbitration case, the arbitrator decided that the questions of whether the representative of an Austrian seller had the right to conclude the contract should be adjudicated under Austrian national law (p. 53) [ICC Arbitration No. 7197 of 1992]. [30]

In a German decision in which a German company claimed that it intended to contract with one company, but concluded a contract with another due to a misunderstanding, the German plaintiff contested the existence of a contract due to error about the identity of the other party. Witz signals that this case involved not merely a questions of lack of consent, but also of the very existence of a contract, and criticizes the judges for not applying Article 8 before deciding that a contract had been formed, since contract formation is governed by the CISG (pp. 53-54).

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FOOTNOTES

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28. LG Hamburg, 26-09-1990, p. 1015 et seq.; IPRax 1991, p. 400 et seq.; CLOUT, 17-05-1993, p. 4.

29. The relevant portions of Article 8 are as follows: "For the purposes of this Convention statements made by and other conduct by a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was," and "[i]f the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances." (Emphasis added).

30. Arbitral ruling 1992, 7197, cited by Witz, p. 53 n.7.

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