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| Abstract | ||||||||||||||||||
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| A French buyer ordered electronic components from a German seller through the seller's liaison office ('bureau de liason') in France. The order specified that the final purchase price, previously indicated by the seller, would have to be revised taking into account a possible decrease in market prices, and that the goods would be delivered at certain dates, upon confirmation by the seller. The seller replied, specifying that the purchase price would have to be revised according to both the increase and decrease in market prices. In its statement, the seller also declared that it was not yet able to confirm the order with regards to some components ('item 5' of the order). Shortly after the parties agreed to modify the 'item 5' of the order, specifying the price and dates of delivery. Later, the buyer cancelled the order involving some other components. The seller objected to such partial cancellation, alleging that it had already dispatched the goods concerned for delivery. Upon delivery the buyer rejected the goods in excess and requested the seller to take back the said goods. The seller refused to take back the goods rejected by the buyer and demanded payment.
Before the appellate Court (Cour d'Appel de Paris, 22-04-1992) the seller argued that the contract was not governed by CISG as it was concluded between the French buyer and the seller's 'bureau de liason' in France, and that therefore both parties had their places of business in France. The appellate Court rejected the argument, stating that the seller's 'bureau de liason' was not an autonomous legal entity but rather a branch of the German seller in France. Therefore, the contract was to be considered an international sales contract governed by CISG as the parties had their places of business in different States and the French rules of private international law led to the application of the law of France, a Contracting State (Art. 1(1)(b) CISG). The appellate Court also held that the first reply by the seller to the buyer's offer did not materially alter the terms of such offer and therefore constituted an acceptance pursuant to Art. 19(2) CISG. As to the buyer's argument that the offer was not sufficiently definite (Art. 14(1) CISG), the appellate Court held that the revision of price according to the market trends indicated in the buyer's original offer did make the price determinable. As regards the goods in excess rejected by the buyer, the appellate Court held that the buyer should have redispatched the excessive goods to the seller immediately, instead of asking the seller to take them back. The Court therefore rejected the buyer's demand to condemn the seller to take back the excessive goods and ordered to the buyer to pay the price for all the goods received. Upon the buyer's appeal, the Supreme Court confirmed the appellate Court decision. In particular, with respect to the buyer's right to reject the excessive goods delivered by the seller, the Court observed that under Art. 86(1) CISG, if the buyer has received the goods and intends to exercise the right to reject them, it is entitled to retain them until it has been reimbursed by the seller of the reasonable expenses incurred to preserve the goods. In the case at hand, since the buyer had not given evidence of any expense incurred to preserve the goods delivered in excess, the Court rejected its pleading for expenses. |