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| Abstract | ||||||||||||||||||
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| A French producer of printers (seller) and a German company concluded a contract granting the German company the exclusive right to distribute the printers in Germany. The German distributor failed to pay the price of a chip which the French seller had delivered to a client in Germany. The German distributor alleged that the sale of the chip was not concluded under the distribution contract and that the French seller and the German client had concluded an autonomous contract of sale. The seller commenced an action against the distributor claiming payment of the price . The distributor requested that in the case of the court finding for the seller there would be a set off of the standing credits between the parties.
The court held that since the parties had chosen French law, the contract was governed by CISG as the international sales law of France, a contracting State (Art. 1(1)(b) CISG). Although CISG is not applicable to a distribution agreement, it does cover each separate contract of sale concluded under the agreement. Moreover, a contract for the sale of a chip (hardware computer component) is a contract of sale of goods under CISG. The court held that the contract of sale of the chip was concluded under the distribution agreement so that the seller was entitled to the payment of price (Art. 53 CISG) since the German distributor had not given evidence of the non conformity of the goods (Art. 35 CISG) and had not given notice of the lack of conformity of the goods to the seller (Art. 39 CISG). The court found that since there was no agreement between the parties as to the currency of payment, the price had to be paid in the currency of the place of payment. The place of payment of the price was France (place of business of the seller, Art. 57(1)a CISG). Since the CISG does not contain any rule on set-off (Art. 4 CISG) the court held that French law was applicable on this matter. The court finally found that the seller was entitled to interest on the unpaid price (Art. 78 CISG) and that the interest rate had to be determined by applying German private international law rules which led to the application of French law as the law chosen by the parties. French statutory interest rate was held applicable. According to the court additional damages could be recovered under Art. 74 CISG. |