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| Abstract | ||||||||||||||||||
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| An Austrian company sent a Swiss company a letter of confirmation in relation to the sale of textiles, and thereafter issued the corresponding invoices. The last of the invoices remained unpaid however, leading the Austrian company to commence an action against the Swiss company. The latter denied that a sales contract had ever been concluded between the parties.
The Court found that the question was governed by CISG, as the Swiss private international law rules led to the application of the law of Austria, a contracting State (Art. 1(1)(b) CISG). The Court held that the sales contract had been validly concluded through the letter of confirmation sent by the Austrian seller to the Swiss company. According to the Court this was a rule recognized under both Austrian and Swiss domestic law and it could therefore be assumed that the parties had implicitly made the same usage applicable to the formation of their contract (Art. 9(2) CISG). Moreover, considering the exchange of correspondence between the parties the Court held that the conclusion of a contract through a letter of confirmation constituted also a practice established between the parties under Art. 9(1) CISG. The seller was awarded the contract price plus interest. In order to determine the interest rate, the Court referred to domestic Austrian law, being the law applicable in the absence of CISG, and awarded the rate of interest to which the parties had contractually agreed upon (3,5 % over the Austrian national discount rate). |