|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| An Austrian company ('the buyer') and a Russian company ('the seller') entered into negotiations for the supply of chemical products, during which the quality of the goods to supply was subject to controversy. Finally the seller sent an offer to the buyer indicating the quantity of the goods, the possible variation in quantity within a specified range (depending on the capacity of the chosen cargo) and the price, as well as the quality which the seller erroneously thought to be the one requested by the buyer. The buyer, in its reply, stated that the possible variation in quantity should be broader than the one contained in the seller's offer. However, the buyer did not object to the specification of the quality of the products. Later on, the buyer sent a second fax indicating a different price and a different quality. Since the parties could not reach an agreement with respect to the quality of the products, the buyer brought an action against the seller claiming inter alia damages.
The issues raised in this case related to whether a contract had been validly concluded under CISG, applicable according to Art.1(1)(a) CISG. Firstly, the Court examined the existence of an offer according to Art.14(1) CISG. The Court held that, in order to determine if the seller's offer was sufficiently definite (Art.14(1) CISG), the offer had to be interpreted according to the understanding that a reasonable person of the same kind as the receiver would have had in the same circumstances (Art.8(2) CISG). Secondly, the Court examined whether the buyer had validly accepted the seller's offer. The Court had to decide whether the terms of the offer had been materially altered by the buyer's acceptance, considering that the buyer's first reply did not correspond to the offer's terms because it indicated a possible variation in the goods' quantity different from the one contained in the offer. In the opinion of the Court, a modification concerning the elements listed in Art.19(3) CISG is to be considered material only if the circumstances of the case, the practices which the parties had established between themselves, the negotiations or the usages do not indicate otherwise. In particular, a modification of the offer concerning the quantity of the goods which is exclusively favorable to the offeror would have to be considered non material. Given that the offeror did not object, the contract should be validly concluded as it results from the modified acceptance. Finally the Court held that the question regarding agency and the question regarding mistake are matters excluded from the scope of CISG, hence they are governed by the applicable domestic law. |