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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. 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 of First Instance (see U.S. District Court, Western District of Washington at Tacoma, 13-04-2006, full text and abstract available in Unilex) 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). Then, the Court made recourse to domestic law (i.e. US law), according to which it found the clause to be valid and enforceable. The buyer appealed the decision. After confirming that CISG was applicable under its Art. 1(1)(a), the Appellate Court held that the First Instance Court should have applied CISG in order to determine whether the exclusionary clause had become part of the contract. The Court also added that it would agree with the First Instance Court’s analysis as to the enforceability of the exclusionary clause if it was found to be part of the contract under CISG. |