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| An Italian seller and a Belgian buyer entered into a contract for the sale of textiles. The seller provided samples of its fabrics to the buyer, on the basis of which the latter determined its collection of sandals to be presented to its customers. After selecting a certain fabric, the buyer placed an order. However, the seller proposed a substitute for the ordered fabric and, shortly after that, it communicated the impossibility of delivery unless a larger quantity of fabric was ordered. After refusing both these offers, the buyer deducted its lost profits for the non-production of the sandals with the unavailable fabric from one of the invoices due to the seller. The seller claimed the complete payment of all the invoices, while the buyer counterclaimed damages for breach of contract alleging the late delivery of several fabrics and the non – delivery of the specific fabric.
As to the applicable law, the Court of Appeal held that CISG had to be applied to the dispute, since the rules of private international law (the Hague Convention of 15 June 1995) led to the application of the law of Italy, a Contracting State (Art.1(1)(b)CISG). As to the merits, the Court of Appeal confirmed the first instance’s decision. First, it held that the seller was not in breach of its obligation to deliver the goods in time (Art. 33 CISG). The delivery date that is binding upon the seller is the date which the parties agreed upon. Therefore, the delivery date that was demanded by the buyer in its order could not, without acceptance of the seller, be binding upon the latter. As to the non-delivery of the specific fabric, the matter concerned whether an agreement had in fact been reached under the provision of Art. 23 CISG. The Court considered that the sending of samples can not be considered as an offer under Art. 14 (1) CISG and that the actual offer was therefore made by the buyer when it placed the offer for the specific fabric. Since the seller did two counter-offers (Art. 19 (1) CISG) and the buyer refused both (Art. 18 (1) CISG), no contract had been concluded between the parties (Art. 23 CISG), and as a consequence, no contractual breach was possible. Therefore the Court concluded that whereas the buyer was not entitled to damages, the seller was entitled to the full payment of all the invoices. The Court also awarded interest on the sums due (Art. 78 CISG), calculated according to the Belgian statutory rate. |