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| Abstract | ||||||||||||||||||
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| A Swiss seller and a French buyer entered into a framework agreement whereby the former undertook to supply a certain quantity of goods to the latter over a period of eight years. The quantity of the goods was to be determined depending on the needs of the final customers to whom the goods had to be resold. Due to the final customers' decision to reduce the repurchase price, the buyer refused to take delivery of most of the goods. A dispute arose between the parties.
The Court of first instance denied that CISG was applicable in the case at hand, as it did not qualify the contract concluded between the parties as a sales contract (Tribunal de Grande Instance de Colmar, 18.12.1997: see abstract and full text in UNILEX). The Appellate Court reversed the decision of the Court of first instance. Taking into account the real parties' intention and other relevant circumstances, it found that the contract entered into by the parties met all the requirements provided for by CISG. Moreover, excluding that the buyer's refusal to take delivery was to be exempted under Art. 79 CISG, the Court held the buyer liable for breach of contract (Art. 61 CISG) and damages (Art. 74 CISG) ( Cour d'Appel de Colmar, 12.06.2001: see abstract and fulltext in UNILEX). The Supreme Court confirmed the Appellate Court decision. In doing so, it found that the contract had correctly been qualified as a sales contract. Not only had the parties respectively qualified themselves as manufacturer ('fabricant') and buyer ('acheteur'), but all the essentials of a sale contract were satisfied: quality and quantity of the goods to be delivered had been determined, as well as criteria for fixing and paying the price. Interpreting all these elements in the light of the principles set forth in Art. 8 CISG(among which the Court mentioned also the principle of good faith), it followed that the obligations reciprocally undertaken by the parties, i.e. delivery of goods, on one hand, taking delivery and payment of price, on the other hand, had to be considered as meeting all the essentials of a sales contract under CISG. Moreover, the Supreme Court found that the buyer's refusal to take delivery of goods was not exemptable under Art. 79 CISG. There was no evidence that the reduction of the repurchase price by the final customers was unforeseeable at the time of conclusion of the contract and it was up to the buyer, which was knowledgeable with international commercial transactions, to provide for mechanisms of renegotiation for the case of changes of circumstances. |