Date: 05.04.2005
Country: Switzerland
Number: 4C.474/2004
Court: Schweizerisches Bundesgericht
Parties: --
Two companies, one from Switzerland, the other from Germany, had a business relationship over a period of 11 years. In January 2002, the Swiss company made an offer to sell a product called Triethylen Tetramin to the German company. When the latter entered into a contract with a final customer for the sale of that product, the Swiss company failed to supply the goods due to non-delivery by the producer. As a result, the final customer bought goods in replacement and obtained damages from the German company. The latter brought a legal action against the Swiss company, requesting reimbursement of the damages paid to the final customer. The Swiss company contested the claim, stating that a contract had never been concluded between the parties.

Both the first instance Court and the Appellate Court dismissed the claim, on the ground that the parties had not entered into a valid contract. The Supreme Court reversed the decision.

The Court firstly found that CISG was applicable, as the two parties were situated in different Contracting States (Art. 1(1)(a)).

Furthermore, the Court addressed the question of the formation of the contract, taking into account all the various documents and statements that the parties had exchanged during their relationship. It held that under Art. 14 CISG a proposal to enter a contract constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. As the offer from the Swiss company did not expressly fix a price nor a way to determine it, it could not be deemed an offer under Art. 14 CISG.

Even if the offer were to be considered complete, the letter sent by the German company purporting to confirm that offer actually materially diverged from the allegedly original offer, since it changed among other things the quantity and the way to determine the price (Art. 19 (3) CISG). Such a letter could then be considered as a counter-offer capable of being accepted (Art. 19 CISG).

The Court then focused on the question as to whether such a counter-offer was accepted by the Swiss company. In so doing, it held that under Art. 18 CISG, any statement or other conduct which expresses consent amounts to an acceptance of the offer. If the actual intent of the parties cannot be detected, the good faith principle requires an examination as to whether the other party knew or could not have been unaware of what the intent was (Art. 8(1) CISG). In determining the intent of a party, due consideration is to be given to all relevant circumstances of the case, including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties (Art. 8 (3) CISG). Taking into account all of this, the Court came to the conclusion that the Swiss company, by its conduct, had accepted the offer. The contract was therefore to be considered validly concluded.