Date: 03.07.1997
Country: Switzerland
Number: 3PZ 97/18
Court: Bezirksgericht St. Gallen
Parties: C. v. W.
A Dutch seller and a Swiss buyer entered into oral agreements for the sale of textiles. According to the parties' understandings, the buyer was supposed to create fashion clothes for the seller. Before delivery to the buyer, the textiles had to be delivered to a third party manufacturer (the embroiderer) to be embroidered. The buyer sent a fax requesting the seller to deliver a certain amount of textiles to the embroiderer. After the buyer visited the seller in the Netherlands, it was no longer interested in continuing the commercial relationship and requested the seller to issue the invoice relating to the textiles delivered to the embroiderer. The seller issued a first invoice. One month later, the buyer sent a letter to the seller requesting an adjustment of the invoiced price, alleging that the amount was too high with respect to the delivered textiles and that the quantity delivered was different from the quantity agreed in the contract. Some days later, the seller sent a letter with the requested correction of the price. About one month after the letter of correction of the price, the buyer announced to the seller that it would return the embroidered textiles and that it would not pay the invoiced price. The seller brought an action to recover the unpaid price.

The court first considered that according to Art. 11 CISG, a contract does not need to be concluded or evidenced in writing. In the absence of any agreement in writing, in order to assess the valid conclusion of the contract the court examined whether all elements of the offer required under Art. 14 CISG were present. In particular, it focused on the presence of the intention of the offeror (the buyer) to be bound in case of acceptance and on the sufficient definiteness of the offer with respect to possibility of determining the quantity of the goods.

The court inferred the buyer's intention to be bound and the possibility of determining the quantity of the goods by interpreting the statements and conduct of the parties according of the understanding of a reasonable person of the same kind as the other party in the same circumstances (Art. 8(2) and (3) CISG). It held that, absent any relevant circumstance or practice between the parties at the time the contract was concluded, the intention to be bound had to be interpreted according to the subsequent conduct of the parties after the conclusion of the contract. In particular, it held that the buyer's request to the seller to issue the invoice of the delivered textiles to the embroiderer was sufficient evidence of the buyer's intention to be bound at the time it made its proposal.

Similarly, in view of the buyer's subsequent conduct, the fact that the buyer complained about the quantity only two months after delivery to the embroiderer gave the court good reason to believe that a valid contract had been concluded for the sale of the quantity of textiles actually delivered to the embroiderer.

The court noted that the parties did not agree upon the contract price. However, as the buyer did not object to the price indicated on the corrected invoice within a short time period, the court held that the price on the corrected invoice was to be interpreted as the price generally charged under comparable circumstances in the trade concerned according to Art. 55 CISG.

The court awarded the seller the price indicated on the corrected invoice plus interest (Art. 78 CISG). With respect to the interest rate, although the court pointed out the two leading theories on the determination of the interest rate under CISG (interest rate to be determined according to the domestic law governing the contract in the absence of CISG or according to the domestic law of the debtor's place), it awarded the Swiss rate of interest, as that was the rate requested by the seller in the judicial complaint to which the buyer did not raise an objection during the court proceeding.