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| Abstract | ||||||||||||||||||
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| Two Swiss companies (hereafter "seller" and "buyer") concluded a contract for sale of diverse Italian wines to be delivered in gift packs à 3 pieces. The seller on its turn concluded a contract with an Italian producer of wine (hereafter "sub-contractor"), with an agreement that the sub-contractor would deliver the ordered wine directly to the buyer.
When the business idea did not yield the expected returns, seller and buyer agreed that to avoid the full cancellation of the sale, the seller would deliver only one type of Italian wine in a gift pack à 6 pieces. The costs deriving from the new arrangement would be set-off with payment for the new delivery. Such an agreement was part of a written order which the seller forwarded to the sub-contractor, with the specification that the latter had to ask directly the buyer for payment. After delivery of 150.000 bottles the sub-contractor requested the outstanding purchase price, to which the buyer replied declaring set-off with the costs deriving from the changes in the agreement. The sub-contractor commenced an action against the buyer claiming payment of price. It claimed that it had concluded an implied contract for sale of 150.000 bottles of wine with the buyer and according to it had a right to full payment. The buyer alleged that the contract had been concluded with the seller and not with the sub-contractor, who therefore did not have any autonomous right to payment. The First Instance Court and the Appellate Court accepted the buyer's contention and rejected the sub-contractor's claim. The sub-contractor brought an action in front of the Supreme Court. The Court held that CISG was applicable to the dispute, as the controversy regarded the alleged conclusion of a a contract of sale of goods between parties whose places of business were in different contracting States (Art. 1(1) CISG). As to the merits, the Court first considered that according to Art. 11 CISG, a contract does not need to be concluded in writing. In order to determine if the sub-contractor and the buyer had concluded a contract, the Court interpreted the statements and conduct of the parties according to Art. 8 CISG. It denied that a contract had been concluded between the parties. The delivery of wine by the sub-contractor to the buyer could not be reasonably considered as an offer to conclude a contract under Art. 14 CISG, nor could the receiving of the delivery by the buyer be interpreted as an acceptance of an offer. In particular, the buyer could not be expected to understand the submission of invoices as a proposal for a contract, thus its failure to react to it could not be understood as an implied acceptance in the absence of other elements. On the contrary, the fact that the buyer used to order the goods from the seller had to be understood as an indication that the sub-contractor was only a vicarious agent for the seller. |