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| Abstract | ||||||||||||||||||
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| A Belgian buyer entered into negotiations with a Swiss company for the supply of a machine. Upon the buyer's request, the Swiss company made several offers. The buyer accepted the last offer by sending an order. The machine was delivered but failed to work properly.
The buyer commenced an action before a Belgian Court claiming a price reduction and, subject to the outcome of an expertise, avoidance of the contract and restitution of the price paid as well as damages. The seller objected that the Belgian Court had no jurisdiction to hear the case as, inter alia, the offer (which had been accepted by the buyer) had expressly referred to the standard terms of the Swiss Association of Machinery Manufacturers which contained a forum selection clause in favor of the Tribunal of the supplier's place of business (i.e. the Tribunal of Zurich, Switzerland) and provided for the application of Swiss law. The buyer alleged that as the standard terms had not been attached to the offer, they had not been accepted. The Court held that the contract was governed by Swiss law, and consequently by CISG, as Switzerland is a contracting State. With regard to the question as to whether it had jurisdiction, the Court found that the seller's offer had contained an express reference in bold letters to the standard terms of the Swiss Association of Machinery Manufacturers. As the buyer's acceptance had not contained any modification regarding the applicability of such standard terms (Art. 19(2) CISG), the agreement between the parties had been reached in the terms of the offer. In reaching this conclusion the Court considered that during negotiations the buyer knew or could not have been unaware of the content of the standard terms to which all the seller's offers referred (Art. 8(1) and (3) CISG). The Court then declined jurisdiction. |