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55 CISG

25 June 2008,
CISG-online 1848208



RESOLUTION


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The [Seller]’s extraordinary appeal is dismissed.


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REASONS FOR THE DECISION


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[Ruling of the Supreme Court]


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Although the [Seller] has not raised an issue of fundamental legal importance that would supersede the case law, [Seller]’s objections are directed to the fact that the lower courts determined the conclusion of the purchase agreement to be in contrariety with substantive law (the CISG).


According to Article 18(2) of the CISG:


‘An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.’


According to Section (3) of this Article:


‘However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.’


In Article 55 of CISG it is stated that:


‘Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.’


From the cited provision of the CISG, it follows that Article 55 concerning the purchase price is applicable only on the condition that the agreement has been validly concluded. Therefore, it is first necessary to assess from the legal point of view whether there was a purchase agreement, i.e., whether such an agreement has been concluded and whether it is valid. In this regard, it was necessary to apply in the given case not only Article 18, Section (2) but also Section (3) of this Article concerning acceptance of an offer by performing an act (sending of goods, payment of purchase price, etc.). In such a case, it is necessary to examine practices established between the parties, namely their usages, ensuing from business so far undertaken between them including subsequent conduct of the parties after submitting the order (namely after the conclusion of agreement). In this sense, it was also necessary to take into consideration [Seller]’s document dated 9 May 1993, by which the acceptance of an order no. 93/1/0754 dated 4 May 1993 (in file under no. 1.75) was made, and the further document dated 14 May 1993 requesting ‘the change of paint WG 24-9100 wrapping’ (in file under no. 1.122) and [Seller]’s subsequent letter (in file under no. 1.123).


If, on the basis of evidence considered, the Appellate Court has come to the conclusion that the agreement has not been concluded, such a legal consideration cannot be challenged as flawed because the reasoning does not contradict substantive law, i.e., Article 18 of the CISG. The [Seller] has objected to the ruling of the Appellate Court (as well as the ruling of the Court of First Instance) alleging that they have failed to properly consider relevant evidence and contends that the proceedings suffered from flaws that could have caused an incorrect legal consideration of the matter in the sense of Article 241a, Section 2, letter a) of the ACP. That is, however, without any legal meaning with regard to solving the issue of admissibility of the extraordinary appeal pursuant to Article 237, Section 1, letter c) of the ACP.


[…]


C 55-2


Tribunal cantonal Valais (Switzerland),
27 April 2007,
CISG-online 1721209



[…]


I. Ruling on the facts


1. a) [Seller]’s business consists of manufacturing, repairing, acquiring and selling kitchen equipment.

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