Date: 06.04.1998
Country: USA
Number: 96 Civ. 8052 (HB)(THK)
Court: U.S. District Court, S.D., New York
Parties: Calzaturificio Claudia s.n.c. v. Olivieri Footwear Ltd.
In the framework of an ongoing contractual relationship between a US buyer and an Italian seller - in the course of which the seller had usually delivered the goods making them available at its own factory ("ex works") - the buyer failed to pay four invoices issued by the seller and marked "ex works". The seller commenced an action to recover payment. The buyer contested: the existence of a contractual relationship with the seller; that it agreed to delivery "ex works"; that it had received the goods; and that any delivery was either late or non-conforming.

Citing U.S. case law on interpretation of CISG, the Court stated that in interpreting CISG the Court must look to its language and to the general principles upon which it is based (Art. 7(2) CISG) and that case law interpreting Art. 2 of the Uniform Commercial Code (UCC), although not applicable per se, may be used to interpret CISG when the provisions in both instruments contain similar language. The Court, however, at the same time stressed that while the UCC and CISG are similar with respect to certain provisions, they differ with respect to others, such as the writing requirement and the parol evidence rule, so that where controlling provisions are inconsistent, it is not appropriate to apply UCC case law in construing contracts governed by CISG.

As to the absence of a writing stating the terms of the contract the Court, citing scholarly writings, held that unlike the UCC, under Art. 11 CISG sales contracts need not be evidenced by a writing and may be proved by any means, including negotiations and oral statements or agreements made prior to a writing. Therefore, also in view of the provisions on interpretation of the contract and usage binding on the parties contained in Arts. 8 and 9 CISG, contracts governed by CISG are freed from the limits of the parol evidence rule, being allowed the recourse to extrinsic evidence.

Applying Art. 8 CISG and considering that the invoice had been unilaterally prepared by the seller and that the buyer had objected to the delivery "ex works", the Court held that it was not possible to establish whether the buyer had agreed to or intended to be bound by the terms of the four disputed invoices.

Nor was it possible to conclude that the delivery "ex works" amounted to a course of dealing, binding on the parties according to Art. 9(1) CISG, since the seller had failed to submit sufficient evidence with regard to the terms of the other transactions successfully concluded with the buyer.

The Court denied the seller's motion for summary judgment there being too many issues to be solved at trial.