- Russian Federation
- Tribunal of Int'l Commercial Arbitration at the Russian Federation Chamber of Commerce
OFFER - SUFFICIENTLY DEFINITE (ART. 14 CISG) - PRICE NEITHER DETERMINED NOR DETERMINABLE - EXCLUSION
DETERMINATION OF PRICE - AGREEMENT TO AGREE AS TO PRICE - PRICE NOT DETERMINABLE - REFERENCE TO CRITERIA OF ART. 55 CISG EXCLUDED BY AGREEMENT TO AGREE
[Abstract: CLOUT case 139]
An Austrian firm (claimant) brought a claim against a Ukrainian firm (respondent) for damages resulting from the latter's refusal to deliver a certain quantity of goods. The respondent denied liability on the grounds that no such agreement had been reached between itself and the claimant.
In settling this dispute, the tribunal noted that, under Art. 14 CISG, a proposal for concluding a contract should be sufficiently definite. It was considered to be such if it indicated the goods and expressly or implicitly fixed or made provision for determining their quantity and price. A telex communication from the respondent regarding the delivery of the goods within a specified period indicated the nature of the goods and their quantity. However, it omitted to indicate the price of the goods or any means of determining their price. The indication in the telex that the price of the goods in question would be agreed ten days prior to the beginning of the new year could not be interpreted as making provision for determining the price of the goods, but was merely an expression of consent to determine the price of the goods at a future date by agreement between the parties. The claimant, who confirmed the contents of the telex communication, thus expressed its consent to the price of the goods being made subject to further agreement between the parties.
The tribunal also noted that in this particular instance Art. 55 CISG, allowing the price of goods to be determined where it was not expressly or implicitly fixed in a contract or where a contract made no provision for determining it, was not applicable since the parties had implicitly indicated the need to reach agreement on the price in future.
Agreement on the price had not subsequently been reached by the parties. The respondent indicated to the claimant that it was not possible to conclude a contract for the specified quantity of goods. Finding that no contract had been concluded between the parties, the tribunal dismissed the claim.
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Original in Russian:
Abstract: CLOUT Case 139, in A/CN.9/SER.C/ABSTRACT/10, 16 August 1996, reproduced with kind permission of the Secretary, United Nations Publications Board}}