|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A Swiss distributor of an Austrian manufacturer sued a Swiss buyer for payment of goods delivered by the manufacturer. The buyer pleaded lack of the distributor's right to sue as a proper party since the contract had been concluded with the manufacturer. The buyer alleged that offer and acceptance had been exchanged between him and the manufacturer, while use was made of the letterhead of the manufacturer. The buyer sought to set-off this claim with a claim for damages which allegedly arose from later supplies that had no longer been forthcoming after the manufacturer had been declared insolvent.
The Court held that agency agreements do not fall within the scope of CISG. However, with respect to the issue of the entitlement to sue, the Court found that the agency matter was not relevant, because offer and acceptance had been exchanged between the manufacturer and the buyer. The Court pointed out that under Art. 14 (1) CISG a proposal constitutes an offer, if it is definite and if it indicates the intention of the person who makes the proposal to be bound in case of acceptance. As to the requirement of definiteness of terms, the Court observed that the proposal was valid because it expressly indicated the goods, the quantity, the price and the offeree. The Court found that the manufacturer intended to become a party to the sales agreement, (Art. 14 (1) CISG), as shown by the fact that the offer had been printed on the letterhead of the manufacturer. In addition, the offer invited the buyer to reply at the phone and fax number of the manufacturer. The Court further held that the fact that the buyer had always addressed any kind of requests or complains to the manufacturer not to the distributor and that the manufacturer itself had reacted upon them, had to be understood as an indication of the manufacturer's intention to be bound at the time it made its proposal (Art. 8(1)(2)(3) CISG). Indeed, the correspondence between the buyer and the manufacturer contained indications only to the manufacturer Finally, the Court remarked that CISG does not contain rules on assignment and set-off of claims. |