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| The dispute arose between a German company and a Belgian company, both in the trade of fruit and vegetables (hereinafter, “the buyer” and “the seller” respectively). After oral negotiations, in June 2003 the seller sent a letter to the buyer purporting to confirm the buyer's purchase of 400,000 jars of pitted sour cherries at a price “to be fixed during the season”. After a first purchase of 50,000 jars of cherries at a price of € 0,95 per jar, in October 2003 the seller sent another letter to the buyer confirming the buyer's previous purchase of 400,000 jars fixing the price at € 0,90 per jar and inviting the buyer to send back a copy of the agreement duly signed. Between January and July 2004 the buyer took delivery of another 130,464 jars of cherries at a price between € 0,87 and € 0,90 per jar, while on August 2004 the seller invited the buyer to take the remaining jars at the price of € 0,90 per jar, referring to the purported June 2003 agreement.
The buyer brought an action in Germany to obtain a declaration that no valid contract had been concluded between the parties. On its part, the seller objected to the jurisdiction of the German Court on the ground of a choice of forum clause inserted in its standard terms in favour of Belgian courts. The Court addressed first of all the question of jurisdiction and applied European Council Regulation No. 44/2001 on jurisdiction and recognition and enforcement of judgements in civil and commercial matters, which states that in the case of a sales contract, a person domiciled in a member State can be sued in another member State if that State is the place for performance of the obligation to deliver the goods (Art. 51(1)(b)). Contrary to the 1968 Brussels Convention, therefore, the place of performance is not to be determined by means of the conflict of law rules of the law of the forum. The Court further held that the place of delivery had to be determined by the law applicable to the contract, i.e. CISG, since the dispute concerned a commercial sales contract and the two parties had their places of business in different contracting States, nor had they made a valid agreement to exclude the Convention. In reaching such a conclusion, the Court rejected the seller’s claim that its standard terms (with, inter alia, a choice-of-law clause in favour of Belgian law) had become part of the contract. In the Court's view, the incorporation of standard terms is governed by CISG general rules on contract formation and interpretation (Arts. 8, 14, 18 CISG). Consequently, standard terms are binding on the offeree only where they have been sent to it or they have been made otherwise accessible to it at the time the contract was concluded, in a way that a reasonable person of the same kind of the offeree would have understood. Moreover, in the Court’s view it follows from the general principle of good faith in international trade (Art. 7(1) CISG) and the parties' duty to cooperate and to give information deriving therefrom (according to the prevailing scholarly opinion) that in an international sales contract the user of standard terms has to make sure that the other party is in a position to know their content. In the case at hand, since the seller’s standard terms were sent for the first time on the reverse side of the invoices, the buyer could gain knowledge of them only after the contract had been concluded; therefore, their incorporation in the contract was denied. Consequently, the Court applied CISG to determine the place of delivery but held that since the parties had reached an agreement on such an issue they had derogated from the criteria set forth in Art. 31 CISG. On these grounds the Court affirmed its jurisdiction as the agreed place of delivery was located in Germany. As to the merits, the Court found that the parties had reached an oral agreement for the sale of 400,000 jars of pitted sour cherries, which had been confirmed by the seller’s subsequent letters. Though silence to a letter of confirmation under CISG does not conclude a contract unless there is an international usage or a practice established between the parties in this respect, the letter of confirmation can furnish circumstantial evidence of contract conclusion. Nor could the valid conclusion of the contract be hindered by the fact that the parties had only agreed to fix the price “during the season” because the price, though not determined, was still determinable (Art. 14(1) CISG). Indeed, according to Art. 8 CISG, the expression “to be fixed during the season” had to be interpreted in the sense that the parties had agreed on the seller’s seasonal price to be determined in accordance with the criteria set out in Art. 55 CISG. The Court further held that the result would be no different even if the expression “price to be fixed during the season” were given the meaning that the price had to be decided by the parties after conclusion of the contract (agreement to agree). Under Art. 6 CISG the parties are in fact free to derogate from Art. 14(1) CISG. According to the Court – which however cited a contrary precedent of the Russian Chamber of Commerce Arbitration Court of 13.06.2003 (Abstract and Fulltext in UNILEX) – in such a case there is no impediment to refer to the criteria indicated in Art. 55 CISG. Finally the Court held that it could not in any case be denied that the parties had actually reached an agreement on the price after conclusion of the contract, given that the buyer had taken delivery of the goods and paid for the price charged by the seller with respect to each single delivery. |