Date: 05.12.1995
Country: Switzerland
Number: HG 45/1994
Court: Handelsgericht St. Gallen
Parties: Unknown
A Swiss company sent an unsigned fax to a German company ordering three computer hardware devices (plotters). The German company delivered the goods within a few days according to the order. The price remained unpaid and the German company commenced action against the Swiss one to recover the price plus interest. The Swiss company asked the Court to dismiss the claim, alleging, inter alia, that the fax did not amount to a valid offer, and that therefore there was no valid contract.

The Court held that since under Art. 11 CISG a sales contract need not to be concluded in or evidenced by writing and can be proved by any means including witnesses, an unsigned offer can be valid.

The Court further noted that under Art. 14 CISG a proposal constitutes an offer when it indicates the intention of the offeror to be bound in case of acceptance: in the case at hand such an intention was to be derived from the terms 'order', 'we order' and 'immediate delivery' contained in the fax. As to the requirement of definiteness of terms, the Court observed, without any further specification, that the offer was valid although the fax did not indicate the price of the goods.

A valid contract had subsequently been concluded, as the delivery of goods followed shortly after the order was sent via fax.

The Court held that the seller was entitled to recover the full contract price. In addition, the seller was awarded interest according to Art. 78 CISG. With respect to the interest rate, the Court applied Swiss private international law rules which led to the German statutory interest rate. The seller was then awarded a higher interest rate as further damages since it provided a bank certificate proving that it had paid interest on bank loans during a specific time period.