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| Abstract | ||||||||||||||||||
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| An international institute based in Switzerland (buyer) entered into several different contracts with a French printing company (seller) for the creation and printing of visit cards, flyers, and folders. The buyer paid in advance part of the purchase price. Furthermore, on buyer’s request, the goods were delivered in France at the private address of the president of the international institute, while the invoices were sent to the Swiss office of the institute. By mistake the invoices referred to the address of the international institute in Switzerland as the place of delivery. Since the buyer refused to pay the remainder of the purchase price, the seller transferred its credit with the buyer to a Swiss company for the recovery. Consequently, the Swiss company brought an action against the buyer claiming for the credit amount plus interests. The buyer objected that no contract had been concluded between the parties and that it had never received the goods.
The First Instance Court held that the parties had implicitly chosen Swiss law as applicable law, since the buyer had not contested the reference to provisions of Swiss law made by the seller in its pleading. As to the merits, the Court ruled in favor of the seller as the buyer had not proven the non-delivery of the goods. The buyer appealed, arguing that the First Instance Court had erroneously reversed the burden of proof since, in its opinion, it was up to the seller to prove the delivery. The Court of Appeal confirmed the First Instance decision. As to the applicable law, the Court held that the parties had validly chosen Swiss law as the law governing the dispute and therefore CISG was applicable being part of Swiss law. Moreover, the Court pointed out that contracts for the supply of goods to be manufactured or produced by the seller fall within the scope of CISG unless the buyer supplies a substantial part of the materials (Art. 3(1) CISG). In the case at hand, an international contract for the creation and supply of printing works was governed by CISG. As to merits, the Court rejected the buyer’s argument on the inversion of the burden of proof. According to the general principles underlying CISG (Art. 7(2) CISG), it was up to the buyer to prove the seller’s non-performance, which it failed to do. On the contrary, the Court found that the seller had demonstrated the delivery of the goods by means of the delivery orders. In the opinion of the Court, the buyer had also lost its right to rely on lack on conformity of the goods, as it neither gave notice to the seller of the alleged defect according to Art. 39(1) CISG, nor had demonstrated the existence of a reasonable excuse for its failure to give such notice according to art. 44 CISG. Therefore, according to Arts. 53 and 62 CISG, the Court required the buyer to pay the remainder of the purchase price. Finally, the Court held that the seller was entitled to interest on delayed payment under Art. 78 CISG and that the interest rate had to be calculated in accordance to the applicable domestic (Swiss) law. |