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| A US seller and a Mexican buyer entered into a contract for the sale of raspberry roots to be planted in Mexico. Upon the goods' arrival, the buyer paid the price and opened the boxes where the roots had been stored. Prominently displayed on the top of each individual box was a clause, also reproduced on the invoices issued by the seller before shipment of the goods, exonerating the seller from liability by stating that « the buyer (…) agrees to accept the entire risk as to quality, performance and viability of the [goods] and that all items are sold “as is” (…)». The buyer brought an action against the seller on the ground of lack of conformity. The seller contested any responsibility invoking the exclusionary clause.
The Court found that the question of whether or not the exclusionary clause was unconscionable, and therefore unenforceable, was a matter expressly excluded from the scope of CISG (Art. 4(a) CISG). The Court then made recourse to domestic law (i.e. US law), according to which it found the clause to be valid and enforceable. The Court went on to state that the same result would be reached even if CISG did apply in order to assess the validity of the clause excluding the seller’s liability. Indeed, the buyer indicated assent to that clause by paying the price (Art. 18(3) CISG) after opening the boxes on the top of which the exclusionary clause was reproduced well visible in red. Moreover, the Court found that the buyer had to be held as bound by the exclusionary clause by virtue of Art. 9(2) CISG. In reaching this conclusion, the Court found that the placement of oral orders followed by invoices containing sales terms was commonplace and, as a rule, additional terms included in a subsequent written confirmation are considered as incorporated into the contract unless timely objected to. To this effect, the Court cited a precedent rendered by a Swiss Court (See Zivilgericht Kanton Basel-Stadt, P4 1991-238, 21 December 1992, abstract and full text in UNILEX). |