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| Abstract | ||||||||||||||||||
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| An Argentinian buyer entered into a contract with an Italian seller for the sale of industrial machinery. The seller had sent to the buyer an offer on standard invoice forms containing a forum selection clause in favour of an Italian forum. Upon receipt, the buyer did not object to the offer, except for the size of some parts of the goods, countersigned the invoice forms and sent them to a financial institution in order to have the purchase financed. The buyer brought then an action against the seller before an Argentinian court, alleging the lack of conformity of the goods. The court of first instance declined its jurisdiction in favour of the Italian forum. The buyer appealed, alleging that the forum selection clause, pursuant to Art. 18(1) CISG and to Italian law, had not been explicitly accepted and therefore it was not valid.
On appeal, the court held that the issue relating to the validity of the forum selection clause did not fall within the scope of CISG (Art. 4(a) CISG) and was to be determined according to the Argentinian law, as the applicable domestic law. Under Argentinian law, the forum selection clause was valid on the ground that it was part of the offer, and it was implicitly accepted by the buyer who, when objecting to the size of the goods, failed to object to it. The court remarked that although according to Art. 18(1) CISG silence or inactivity does not in itself amount to acceptance, in the case at hand there was an implicit acceptance of the offer: in fact, in countersigning the invoice forms and sending them to the financial institution, the buyer performed an act relating to the payment of price, amounting to acceptance according to Art. 18(3) CISG. The court concluded that the contract was validly concluded on the basis of the offer contained in the standard forms, and the clauses there printed and not objected to, including the forum selection clause, were part of the contract. |