|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A French company (the seller) sent a fax in English to a German company (the buyer) proposing the delivery of twenty truck loads of tomato concentrate. The buyer replied by fax accepting delivery. Thereafter, however, only one truck load was received by the buyer. The buyer declared the contract avoided and when sued by the same seller for payment of other sums in arrears, refused to pay, claiming set-off with damages deriving from the seller's breach of contract.
The Court did not accept the seller's contention that no sales contract had been concluded between the parties. According to the Court, the fax sent by the French company constituted an offer under Art. 14 CISG, since it was sufficiently definite as to type of goods, price and quantity, and it indicated the offeror's intention to be bound. In particular, reference to tomato tins and truck loads was considered sufficiently definite, as the parties referred to quantities well known to them and usual in the trade sector involved. Further, the fax wording, though unclear, was to be understood as expressing the seller's intention to be bound, while a more literal interpretation was not applicable being English a foreign language both to seller and buyer. This all the more so, since the fax contained the same terms as Art. 14 CISG. Finally, the delivery of a first truck load could not be considered as a mere sample delivery. Therefore, upon the buyer's acceptance a sales contract had been concluded. Nor was the seller exempt from liability for its failure to perform according to Art. 79 CISG. In the Court's opinion, the heavy rainfalls in France had certainly reduced the production of tomatoes and provoked an increase in its price, but it did not cause the perishing of the entire tomato crop. Therefore, the seller's performance was still possible. The reduction of the crop and the rise in the tomato market price were impediments that the seller could overcome. The Court held the buyer entitled to avoidance of the contract for breach by the seller under Arts. 49 and 47(1) CISG, since the buyer had repeatedly fixed an additional time for performance without results. The Court noted that the buyer was not even obliged to fix an additional time for performance, having received notice from the seller that it did not intend to perform (Art. 47(2) CISG). The buyer was awarded damages amounting to the difference between the contract price and the current price at the time of avoidance, in the absence of a substitute purchase by the buyer (Art. 76 CISG). Finally, the Court accepted the buyer's claim to set-off the damages with its outstanding debts towards the seller, according to the applicable French law. It observed moreover that set-off of claims of the same nature between the same parties is by now a general principle of the lex mercatoria, common to all "civilized, trading Nations". |