Date: 10.11.1994
Country: Austria
Number: 2 Ob 547/93
Court: Oberster Gerichtshof
Parties: M. v. K.
An Austrian buyer ordered from a German seller a 'certain quantity' of medium to good quality Chinchilla furs, at a price ranging from 35 to 65 German Marks apiece. The seller sent 249 furs, 239 of which were sold on by the buyer to an Italian customer. The buyer paid only 2400 Marks to the seller, who then commenced an action to recover the rest of the price due. Both lower Courts decided in favor of the seller; the buyer appealed to the Supreme Court.

The Supreme Court confirmed the lower Court's decisions and granted the seller payment of the sums it asked for. According to the Court, the buyer's proposal constituted an offer which was sufficiently definite as to the quantity of goods and as to their price, since it implicitly made provisions for determining both elements (Art. 14(1) CISG). The Court held that in order to ascertain whether an offer is sufficiently definite, it has to be interpreted according to the understanding of a reasonable person of the same kind as the other party in the same circumstances (Art. 8(2) CISG) and that in determining such understanding all relevant circumstances of the case are to be considered, including negotiations, practices established between the parties, usages and subsequent conduct of the parties (Art. 8(3) CISG).

As to the quantity of goods, the Court held that the request of 'a certain quantity' of furs made the offer sufficiently definite in view of the subsequent conduct of the buyer, who immediately sold on almost all the delivered furs without complaints as to their quantity.

As to the price of goods, in the opinion of the Court the offer was sufficiently definite since the parties agreed on a range from 35 to 65 German Marks for medium to good quality furs, which made it possible to price each fur according to its quality. As the price was implicitly determined according to Art. 14 CISG, the Court left open the question whether in the absence of such a determination, reference can be made to the market price of the goods sold (Art. 55 CISG).

Finally, the Court held that in the absence of a contrary agreement between the parties, payment of the price was to be made at the seller's place of business (Art. 57(1)(a) CISG), and not at the place of delivery of the goods. The latter rule applies when payment is to be made against the handing over of the goods or of documents (Arts. 57(1)(b) and 58 CISG), and according to the Court it refers only to the situation where payment must be made to a carrier or a warehouse holder.