- Kharkiv Regional Commercial Court
SALES CONTRACT - BETWEEN TWO UKRAINIAN COMPANIES
UNIDROIT PRINCIPLES APPLIED BEFORE UKRAINAIN COURTS AS A MEANS OF INTERPRETING AND SUPPLEMENTING THE APPLICABLE DOMESTIC LAW (UKRAINIAN LAW)
MODIFICATION OF TERMS OF THE CONTRACT BY MERE CONDUCT OF PARTIES - REFERENCE TO ARTICLE 2.1.1 UNIDROIT PRINCIPLES.
Claimant, a Ukrainian company, entered into a contract with Respondent, a Ukrainian company, for the sale of agricultural products (sugar beet)(the "Agreement"). During the performance of the Agreement, a dispute arose regarding one of the installment payments made by Respondent. Claimant alleged that when due to the increase of the market price of the sugar beet it had charged a higher price for its product Respondent, in taking delivery of the products without objecting, had tacitly agreed to modify the terms of the Agreement and requested additional payment based on the new purchase price. When Respondent objected to this Claimant filed a suit seeking the payment of the increased purchase price.
The Court granted the claim.
The Court found that by their conduct during the performance of the Agreement the parties have tacitly agreed on the new price, while confirming the remaining part of the Agreement. In support to its decision the Court referred to Articles 202 and 626 of the Civil Code of Ukraine, which however are of a general nature and as such not conclusive on the issue at stake. Moreover, the Court recalling the High Commercial Court's Official Note, which states that, among others, the 1994 ed. of the Unidroit Principles of International Commercial Contracts, are officially considered in Ukraine as documents that enshrine the trade customs, referred also to Article 2.1 [2.1.1 of the 2010 edition] according to which a contract may be concluded by either expressly or by conduct of the parties that is sufficient to show agreement. In the opinion of the Court this provision could also apply to modifications of the original contract terms.
Original in Ukrainian available at the Unified State Register of Court Decisions: http://www.reyestr.court.gov.ua/}}