Russia 3 March 1995 Arbitration proceeding 309/1993 (Implicit agreement on price case)
[Cite as: http://cisgw3.law.pace.edu/cases/950303r1.html]
Primary source(s) for case presentation: Michael R. Will; UNCITRAL abstract
DATE OF DECISION:
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CASE NUMBER/DOCKET NUMBER: 309/1993
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CASE HISTORY: Unavailable
SELLER'S COUNTRY: Ukraine (respondent)
BUYER'S COUNTRY: Austria (claimant)
GOODS INVOLVED: [-]
Case law on UNCITRAL texts (CLOUT) abstract no. 139 Reproduced with permission from UNCITRAL An Austrian [buyer] brought a claim against a Ukrainian [seller] for damages resulting from the [seller's] refusal to deliver a certain quantity of goods. The [seller] denied liability on the grounds that no such agreement had been reached between itself and the [buyer]. In settling this dispute, the tribunal noted that, under article 14 CISG, a proposal for concluding a contract should be sufficiently definite. It was considered to be such if it indicated the goods and expressly or implicitly fixed or made provision for determining their quantity and price. A telex communication from the [seller] regarding the delivery of the goods within a specified period indicated the nature of the goods and their quantity. However, it omitted to indicate the price of the goods or any means of determining their price. The indication in the telex that the price of the goods in question would be agreed ten days prior to the beginning of the new year could not be interpreted as making provision for determining the price of the goods, but was merely an expression of consent to determine the price of the goods at a future date by agreement between the parties. The [buyer], who confirmed the contents of the telex communication, thus expressed its consent to the price of the goods being made subject to further agreement between the parties. The tribunal also noted that in this particular instance article 55 CISG, allowing the price of goods to be determined where it was not expressly or implicitly fixed in a contract or where a contract made no provision for determining it, was not applicable since the parties had implicitly indicated the need to reach agreement on the price in future. Agreement on the price had not subsequently been reached by the parties. The [seller] indicated to the [buyer] that it was not possible to conclude a contract for the specified quantity of goods. Finding that no contract had been concluded between the parties, the tribunal dismissed the claim. APPLICATION OF CISG: Yes APPLICABLE CISG PROVISIONS AND ISSUES Key CISG provisions at issue: Articles Classification of issues using UNCITRAL classification code numbers: 14A12 [Criteria for an offer (basic criterion - intention to be bound in case of acceptance): definiteness of key conditions (determination of price)]; 55A [Enforceability of agreements that do not make provision for the price] Descriptors: Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 342
"[T]he Russian Tribunal of International Commercial Arbitration rejected the gap-filling role of Article 55 where the parties agreed to fix a price ‘ten days prior to the beginning of the new year’ but were unable to do so. The subsequent failure of the parties to reach an agreement with respect to price went to the heart of the transaction and specifically defeated the formation of a contract."
English: Unilex database [CLOUT abstract]
Italian: Diritto del Commercio Internazionale (1997) 731-732 No. 143
Polish: Hermanowski/Jastrzebski, [1997] Narodódow Zjednoczonych o umowach miedzynarodowej sprzedazy towarów. Konwencja wiedenska. Komentarz [CISG commentary], Warszawa: ABC 279-280
CITATIONS TO TEXT OF DECISION Original language (Russian): Unavailable Translation: Unavailable CITATIONS TO COMMENTS ON DECISION
English: Honnold, Uniform Law for International Sales (1999) 156 [Art. 14: definiteness and price (prior to delivery and acceptance)]; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) [formation of the sales contract: the price 110-114 (this case at 113-114)]; Gabuardi, Open price contracts (June 2001); Pilar Perales Viscasillas in Ferrari, Flechtner & Brand ed., The Draft UNCITRAL Digest and Beyond, Sellier / Sweet & Maxwell (2004) 277-279 [Art. 55 issues]; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 129Case abstract
RUSSIAN FEDERATION: Arbitration at Russian Federation Chamber of Commerce and Industry [No. 309/1993 of 3 March 1995]Classification of issues present
Editorial remarks
Citations to other abstracts, case texts and commentaries
CITATIONS TO OTHER ABSTRACTS OF DECISION
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