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| Abstract | ||||||||||||||||||
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| On June 2, 1988 a German tradesman, acting under the name of the company 'AMG Import Export', ordered textiles from an Italian seller. At a later time the German tradesman gave the seller a bill of exchange drawn on and accepted by the company 'AMG GmbH' with limited liability. The company AMG Import Export was found to be non-existent. The seller commenced action against the German tradesman to recover the purchase price and interest. The German tradesman denied his personal liability claiming that he had acted on behalf of the company AMG GmbH.
The court held that the contract was governed by CISG, as the German private international law rules led to application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). In order to determine whether a contract had been concluded between the seller and the German tradesman (Art. 23 CISG), the court interpreted the statements and conduct of the parties according to Art. 8 CISG. The court held that the seller did not and could not know that the German tradesman intended to bind company AMG GmbH. Obiter, the court noted that German law, not CISG, would apply to the further question of whether the German tradesman was acting as an agent of AMG GmbH. As to the question of AMG Import Export's existence, the court applied German law. It consequently found that AMG Import Export was non-existent, and therefore that the German tradesman was bound by the contract. The court held that the bill of exchange given by the buyer had validly modified the contract according to Art. 29(1) CISG to the effect that the date of payment of the purchase price was postponed until the date when the bill of exchange was due. In reaching this conclusion, the court took into account the existence of an international trade usage to this effect (Art. 9(2) CISG). The court awarded the seller the purchase price plus interest accruing from the maturity date of the bill of exchange. As CISG does not expressly specify the rate of interest payable, the court in order to determine the rate referred to Italian law as the law of the creditor's place of business. Although the Italian statutory rate was 5%, the court awarded additional damages to the seller and the interest finally awarded was 13%, being the Italian discount rate. |