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| Abstract | ||||||||||||||||||
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| An Italian seller and a French buyer concluded a contract which provided that the French buyer became the seller's sole agent in France as well as sole importer of the sweets produced by the seller. To that purpose, the buyer was obliged to purchase the goods and guarantee payment of 50% of their value.
After reselling the goods, the buyer did not pay to the seller the price obtained. The seller declared the contract ended and commenced an action for payment of the price. The buyer alleged that the seller did not give the notice required by usage to end the contract and claimed damages. The buyer also claimed that the price to be paid was lower than that asked by the seller as, in cases where price is not determined, parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the market price (Art. 55 CISG). The buyer alleged that the seller had successively sold the same goods at a lower price to another French company. The Court held that the contract concluded between the parties was partly a distributorship agreement and partly a sales transaction. As to the sales transaction, it was governed by CISG, as the parties had their places of business in contracting States (France and Italy) (Art. 1(1)(a) CISG). The Court observed that the contract expressly granted the seller the right to end the contract. Such a clause was not forbidden under CISG as the parties are free to establish that, in case of successive sales transactions, the seller can interrupt the relationship at any time provided it does not hinder the execution of a previous order. The Court held that the buyer's reference to Art. 55 CISG was irrelevant, as Art. 55 may be excluded by a different agreement between the parties. In the case at hand, the buyer had taken delivery of the goods without contesting the price indicated by the seller; such conduct was to be interpreted as acceptance of the price, according to Art. 8(2) and (3) CISG. The Court therefore ordered the buyer to pay the price requested by the seller. |