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| Abstract | ||||||||||||||||||
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| A Finnish seller and a German buyer entered into negotiations for the sale of 3.000 tons of nickel-copper electrolyt cathods. The buyer signed the contract form, but the seller did not. Then the Finnish seller (as a buyer) entered into a contract with a Russian agency to purchase the same kind of goods. The contract substantially reflected the Finnish-German agreements as to quantity, time of delivery, payment, etc. The Russian agency provided for shipment from Russia to Rotterdam. The buyer received and confirmed the reception of three bills of lading, but did not pay the contract price, alleging that no contract had been concluded between the parties, also because the Finnish seller had not validly signed the contract form. The seller assigned all its contract rights to a German-Russian joint- venture, in which the buyer was also a stockholder. The joint- venture commenced an action to recover the unpaid contract price.
The Court held that the contract was governed by CISG according to Art. 1(1)(a) CISG, with the exception of Part II of CISG on Formation of the Contract, due to Finland's declaration of its intention not to be bound made under Art. 92 CISG. In the Court's opinion, the fact that Part II of CISG was not applicable did not prevent the Court from addressing the issue of whether the parties had validly concluded a contract. Under CISG, a contract may be concluded in a form other than by offer and acceptance (i.e. by mere conduct of the parties) provided that a corresponding intention of the parties can be proved. In the case at hand the Court found that the buyer's intent to conclude the contract was shown inter alia by the fact that the buyer had signed the contract form and that it was a permanent metal dealer and as such had participated as a stockholder in the German-Russian joint-venture (indeed, this company was especially created with the purpose of buying Russian metals due to lower domestic prices in Russia); moreover the buyer had taken delivery of the goods without further complaint. As to the seller, the Court stated that it was not required to sign the contract form in order to conclude the contract. As a matter of fact, according to art. 11 CISG, a contract does not need to be concluded or evidenced by writing and can also be proved by any means, including witnesses. In this case the seller's witness had given sufficient evidence of the seller's intent to accept the contract. Moreover, the seller had delivered the goods and the buyer had accepted them without further complaint. Therefore the Court awarded the seller the contract price. |