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CASE 1

CISG CASE PRESENTATION


Spain 22 May 2006 District Court Badalona (Bermuda shorts case) [translation
available]
[Cite as: http://cisgw3.law.pace.edu/cases/060522s4.html]
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Case identification
DATE OF DECISION: 20060522 (22 May 2006)
JURISDICTION: Spain
TRIBUNAL: Juzgado de Primera Instancia, No. 3 de Badelona
JUDGE(S): Doa Angeles Fernndez Tio
CASE NUMBER/DOCKET NUMBER: Rollo No. 574/2003-A
CASE NAME: Wolfram R. Seidel GmbH v. Crotton S.A.
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Spain (defendant)
BUYER'S COUNTRY: Germany (plaintiff)
GOODS INVOLVED: Bermuda shorts

Case abstract
SPAIN: Juzgado de Primera Instancia de Badalona 22 May 2006 (Bermuda
shorts Case)
Case law on UNCITRAL texts (CLOUT) abstract no. 796
Reproduced with permission of UNCITRAL
Abstract prepared by Maria del Pilar Perales Viscasillas, National Correspondent
The case concerns a contract between a Spanish company (seller/defendant) and a
German company (buyer/plaintiff) for the sale of Bermuda shorts intended for Egypt
and Iran; the transport was the responsibility of the seller, which had an obligation to
deliver the goods to Dubai. The parties had already had commercial relations earlier.
The contract stipulated an advance payment, and the German buyer satisfied this
requirement. The seller, however, did not deliver the goods and proceeded to avoid
the contract arguing that the buyer had breached its obligation to sell the goods in
countries of the Middle East, as garments from previous sales contracts had been
detected in Japan.
The court found, in the first place, that the contract had been concluded between the
parties through the exchange of electronic mails showing the offer and the acceptance
of the order (CISG article 23).
Secondly, the court found that the sales contract contained a fundamental condition
that the goods should be resold in countries of the Middle East, but that there was no
provision giving the buyer an obligation to verify that its customers in the Middle East
sold the products only in such countries. There was therefore no obligation on the part
of the buyer to supervise the chain of sales following its own sale to its customer in
the Middle East.
As was adequately demonstrated in the proceedings, the buyer performed its
obligation to sell the goods to countries in the Middle East. There being no basis for
the seller to declare the contract avoided, it was concluded that the seller had breached
the sales contract by not delivering the goods stipulated in the contract (CISG article
40), all the more so as the contract was not a distribution contract but a sales contract
relating not to delivery of goods by instalments but to a single delivery, even though
other contracts existed. Consequently, avoidance of the contract could not be based on
an expected future breach of contract by the buyer -- something that had not yet
occurred. Such avoidance was permitted in the Convention (CISG article 73(2)) only
in cases of delivery of goods by instalments, and not with individual, isolated
deliveries as in the present case.
Thirdly, as a result of the foregoing, the court found that the buyer was entitled under
CISG article 45 to claim damages in accordance with CISG articles 74 to 77 and to
declare the contract avoided under CISG article 49(1)(a).
With regard to the refunding of the price, the buyer claimed a small part of the price
that was not returned by the seller with the argument that this related to the cost
generated by the bank transfer. The court found that that amount must also be
refunded since the circumstance in question was not demonstrated and, moreover, the
restitution of the price referred to the whole quantity paid, as could be deduced from
CISG article 81(2).
The court also awarded the buyer interest on the basis of CISG article 84(1).
Regarding damages, the court awarded to the buyer, under the heading of
consequential damages, the costs of lawyers' fees in relation to extrajudicial claims
addressed to the plaintiff outside Spain. Under the heading of loss of earnings, the
court ordered the seller to pay the buyer the difference between the price of the sales
contract breached and the price that the buyer would have received from its customer.
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Case 2
CISG CASE PRESENTATION
Germany 12 May 1995 Lower Court Alsfeld (Flagstone tiles case) [translation
available]
[Cite as: http://cisgw3.law.pace.edu/cases/950512g1.html]
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Case identification
UNCITRAL abstract
Classification of issues present
Editorial remarks
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Case text (English translation)
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Case identification
DATE OF DECISION: 19950512 (12 May 1995)
JURISDICTION: Germany
TRIBUNAL: AG Alsfeld [AG = Amtsgericht = Petty District Court]
JUDGE(S): Unavailable
CASE NUMBER/DOCKET NUMBER: 31 C 534/94
CASE NAME: German case citations do not identify parties to proceedings
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Flagstone tiles

Case abstract
Germany: Landgericht Alsfeld 12 May 1995
Case Law on UNCITRAL texts (CLOUT) abstract no. 410
Reproduced with permission from UNCITRAL
A German buyer, the defendant, ordered through X, a self-employed sales agent,
flagstones from an Italian seller, the plaintiff. The seller sent an invoice. X handed the
stones over to the buyer and reduced the purchase price mentioned in the invoice. The
buyer wrote out a cheque for X as recipient. Subsequently the cheque was cashed but
the seller never received the purchase price. After sending a reminder through its
Italian advocate the seller sued the buyer for the purchase price and for the expenses
of the reminder. The buyer argued that it had paid the purchase price as reduced by X.
The Court held the CISG to be applicable by virtue of article 1(1) CISG because the
parties had their places of business in different Contracting States and the exclusions
of the articles 1(2) and 2 CISG did not apply.
The Court held the claim to be justified under article 53 CISG. It found that CISG did
not rule the question of agency. Pursuant to Article 7(2) CISG the issue of agency was
governed by German law applicable under the rules of international private law of the
forum. According to German law, X had no representative authority for the seller.
Consequently its reduction of the purchase price was ineffective.
The Court held that the buyer had not fulfilled its obligation to pay the purchase price.
Neither did the buyer pay the purchase price to the seller at the seller's place of
business (article 57(1)(a) CISG) nor did it pay the purchase price to the seller at the
place where the handing over of the stones took place (article 57(1)(a) CISG).
However, as the seller never received the purchase price, handing over the cheque to
X did not amount to payment. If the buyer commissioned X to transmit the purchase
price to the seller, it had to bear the risk of this transmission (article 79 CISG). Also X
was no authorized collecting agent of the seller. As the buyer wrote out a cheque for
X as recipient, it had to bear the risk for X cashing the cheque without handing over
the purchase price to the seller (article 79 CISG).
Concerning the costs for the reminder the Court dismissed the claim. It held that the
seller had the possibility to entrust a German [advocate] with sending the reminder.
When entrusting an Italian lawyer the seller failed to take measures to mitigate the
loss by virtue to article 77 CISG.
The Court granted interest under article 78 CISG from the due date of the purchase
price (articles 58 and 59 CISG). The court determined the rate of interest under Italian
law applicable under the rules of German international private law (article 7 CISG).
The court refused to grant a higher rate of interest under the articles 62 and 74 CISG
because the seller failed to prove the recourse to bank credit.
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Case 3


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Euromina Thevenin


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Case text (English translation)
Queen Mary Case Translation Programme
District Court (Rechtbank van Koophandel) of Veurne
BV BA G-2 v. A.S. C.B.
25 April 2001
Translation [*] by Vincent Naveaux [**]
Translation edited by Sieg Eiselen [***]
PARTIES: COUNSEL. BV BA G-2 [seller], having its head office in Nieuwpoort, registered in the trade register in
Veurne, Belgium, Plaintiff on principal claim and Defendant on counterclaim versus A.S. C.B. [buyer], having its
head office in Liberec, Czech Republic, Defendant on principal claim and Plaintiff on counterclaim, electing
domicile at the office of its counsel in Brussels.
CASE HISTORY. Having regard to the writ served on 22 May 2000 and having regard to the
deposited submissions and exhibits, the parties were heard at the court session of 28 March 2001
where the debates were closed and the case was taken under consideration and set for decision at
the hearing of 25 April 2001.
I. FACTS AND PLEADINGS
1. [Seller's position]
By summons of 22 May 2000, the [seller] lodged a claim against the [buyer] for the
payment of Bf [Belgian francs] 550,000 in principal, composed of:
- balance of the invoice no. 990038 dated 20 July 1999: Bf 500,000
- contractual damages clause: Bf 50,000
Bf 550,000
with contractual interest at 12% per annum from 20 July 1999 and legal interest at the
contractual interest rate of 12% per annum.
With the above-mentioned invoice, the [seller] charged the total price of Bf 1,500,000
for the sale of a diesel tram, "San Francisco" type GOPO SF 200 diesel; on that
invoiced amount, the [buyer] paid Bf 1,000,000; thus, [buyer] is still indebted to the
[seller] for the above mentioned balance.
2. [Buyer's position]
The [buyer] contests the claim for payment; for as it appeared on delivery, the tram
did not comply with the order; the vehicle was so ridden with latent defects to the
extent that the tram was completely unfit for its intended use.
By counterclaim, the [buyer] demands the dissolution of the contract and judgment
against the [seller] for the reimbursement of [buyer] in the amount of Bf 1,000,000
(amount already paid on the sale price), plus damages of Bf 733,600. In an alternative
claim, the [buyer] claims at least the "price reduction" and/or damages of Bf733,600.
3. [Seller's reply]
In rebuttal, the [seller] rejects the [buyer]'s defense and counterclaim. [Seller]
points, inter alia, to the absence of timely protest and the acceptance by [buyer] of the
tram without any reservations.
II. COURT'S ASSESSMENT
1. Applicable law
The [seller] demands the payment of the balance of the purchase price following an
international sale of goods, namely, a diesel tram.
Regarding the question of the law applicable to the contract of sale, the [seller] states
on page 10 of his second submission (deposited on 21 December 2000) that in this
case "Belgian law" should be applied, in which legal system it is more particularly
specified that a claim on account of latent defects has to be filed "within a short
period, i.e., within a year after the discovery of the defect." Further, the [seller] states
that Article 39(2) of the United Nations (Vienna) Convention on Contracts for the
International Sale of Goods of 11 April 1980 (hereinafter CISG), invoked by the
[buyer], "only relates to private persons and not traders."
The [buyer] formally concedes to the application of the CISG in the present dispute
(submission deposited on 29 January 2001, page 15-16), yet on the other hand, raises
arguments (and persistently so) regarding "non-conforming delivery" (and cites
Article 1615 of the Belgian Civil Code relating to the accessories of the goods sold
and referring to Belgian case law concerning domestic sales, which predates the
CISG's entry into force in Belgium) as well as, in the alternative claim, regarding
"latent defects" which make the tram unsuitable for the intended use, with reference to
Article 1641 of the Belgian Civil Code.
The Court finds that the [seller] is established in Belgium and the [buyer] is
established in the Czech Republic. Both countries are Contracting States to the CISG
(the CISG entered into force in Belgium on 1 November 1997 and in the Czech
Republic on 1 January 1993 formerly the Czechoslovak Socialist Republic; on 30
September 1993 the Czech Republic deposited with the United Nations a declaration
of "succession").
According to Article 1(1)(a) CISG, the Convention is applicable to contracts of sale of
movable goods between parties whose places of business are in different States when
these States are Contracting States; thus, the CISG determines directly the criteria of
its territorial application so that no reference need be made to the otherwise applicable
rules on the governing law (cf. J. Meeusen, "Belgisch international contractenrechjt in
Europees perspectief" in X., "Overeenkomstenrecht", Verslagboek van de XXVIste
postuniversitaire cyclus Willy Delva 1999-2000, p.379 e.v., inz. nr. 490, p. 388).
- Furthermore, the sale was concluded after the date on which the Convention entered
into force in both countries, so on that point the condition contained in Article 100(2)
CISG has been satisfied.
- Finally, Article 1(3) CISG determines unequivocally that the civil or commercial
character of the contract is not to be taken into consideration in determining the
applicability of the Convention.
Therefore, the present case has to be decided taking into consideration the provisions
of the CISG, in particular Article 4 which stipulates that the Convention governs the
rights and obligations of the seller and the buyer arising from the contract and also
the formation of the contract of sale (including the regulation of sanctions in the event
of improper performance by the parties - cf. H. Van Houtte et al, "Het
Weenskoopverdrag", p. 44, nr. 1.51). It is all the more conclusive that there are no
indications that the parties wished to contractually exclude the application of the
CISG.
2. Principal claim of seller
The [buyer] does not dispute the calculation of the amount of Bf 500,000 claimed in
payment of the balance of the invoice; however, [buyer] blames the [seller] for
improper performance and, thus, by counterclaim asks for the dissolution of the
contract. Consequently, the decision on the principal claim of [seller] will depend on
the decision on [buyer]'s counterclaim (infra, nr. 3).
3. Counterclaim of buyer
As indicated above, the [buyer] relies on the "non-conforming delivery" and on "latent
defects", and, according to the reasoning set forth in the submissions, relies on
defenses and develops arguments which are if not exclusively, then in main
derived from the material law concerning sales as regulated by the Civil Code in the
domestic Belgian legal order.
However, as indicated above, the provisions of the CISG must be applied to the
contract.
The CISG knows only one uniform concept of conformity (S. De Groot,
"Nonconformiteit volgens het Weens Koopverdrag", T.P.R., 1999, p. 635 et seq., in
particular at pp. 638-652). Under the regime of the Convention, no distinction is made
between a guarantee against latent defects and the seller's obligation to deliver: the
seller must deliver conforming goods and that is all (Commercial Court of Courtrai,
20 April 1998, T.W.VR., vol.3, p.70; H. Van Houtte et al, op.cit., p.124, nr.4.36).
On the other hand, under Articles 38 and 39 CISG, the buyer must examine the goods,
or cause them to be examined, within as short a period as practicable having regard to
the circumstances, as well as give notice to seller within a reasonable time with
sufficient particularity of the lack of conformity the latter obligation being
sanctioned with the loss of the right to rely on the lack of conformity.
In the case at hand, the [buyer] relies on the following defects of the diesel tram,
which was delivered in Liberec on 6 August 1999 (cf. [buyer]'s brief, exhibit no. 22).
The suspension of the frame is too low, so that the tram brushes against the
ground;
The reserve wheel is missing;
The trawl cable is missing;
The tram only reaches a speed of 25 km per hour;
The quality of the central piece of the joint (between the gearbox and the wheels)
is undersized, so that the entire tram is shaking when in motion;
Neither the tram nor the seats were painted;
The tram engine stalls after a while and can only be restarted after 30 minutes;
The fuel tank must be continuously refilled due to problems with the fuel supply,
especially when the tram travels uphill;
The handbrake is out of order;
The sensor of the motor ventilator is defective;
The roof of the tram is leaking, so that when it rains water seeps through.
Such defects can be established if not immediately on delivery, then certainly on the
occasion of the first (test-) drive of the tram, and consequently could be discovered by
the [buyer] on the basis of a reasonable inspection within a normal testing period of
only a few working days after the arrival of the tram in Liberec on 6 August 1999; the
deficiencies or defects are not deficiencies or defects which could only have been
discovered after an intensive and/or continued use of the tram (cf. S. De Groot, op.
cit., pp. 663 and 665).
Concerning the speed of the diesel tram, which the [buyer] alleges is limited to 25 km
per hour while it should at least reach 40 km per hour, it first has to be noted that the
signed contract of 7 May 1999 did not contain any specifications on that subject.
[Buyer] did not prove that a minimum speed of 40km/h had been agreed upon. Since
the "diesel tram" actually appears to be a small tourist train, and as such is used by the
[buyer] for promotional purposes (cf. [seller]'s brief, exhibit no. 24), a speed of 25 km
per hour is not incompatible with the "ordinary use" and/or the "particular purpose"
mentioned in Articles 35(2)(a) and (b) CISG. Therefore, no improper performance
can, on this basis, be ascribed to the [seller].
Subsequently, the Court finds that the [buyer] expressed concerns on the above
mentioned deficiencies for the first time by fax letter dated 18 September 1999, when
[buyer] transmitted a list of the defects to the [seller]. The [seller] states on that
subject that this fax is backdated and that it was actually transmitted for the first time
on 21 October 1999 after a formal notice for payment of the balance had been
delivered on 14 October 1999 ([seller]'s brief, exhibits no. 6 and 7). Furthermore, the
[seller] formally denies that the [buyer] made any complaints (oral/telephonic) before
that time.
The burden of proof concerning the timely (and sufficiently specific) protest lies on
the buyer (S. De Groot, op. cit., pp. 686-688). The [buyer] has failed to prove that it
gave notice, orally or telephonically, of the defects or deficiencies of the diesel tram to
the [seller], prior to the fax letter dated 18 September 1999. The [buyer] also has
failed to prove when [buyer] sent this fax letter dated 18 September 1999 to the
[seller]; in particular, [buyer] has failed to present any transmission report of sending
the letter by fax.
From the above, it has to be decided that the [buyer] in the present case lost the right
to rely on the non-conformity of the diesel tram in accordance with Article 39(1)
CISG: on 15 August 1999, the [buyer] already had knowledge of the (alleged) non-
conformity of the tram, or ought to have discovered the defects through a reasonable
inspection, and only on 21 October 1999 did [buyer] give notice to the [seller]. Such a
late notice, after the lapse of more than two months since the [buyer] had knowledge
of the (alleged) non-conformities, does not comply with the requirement of a
"reasonable time"; indeed, the buyer had no reason to delay its protest once [buyer]
actually established that the delivery was not in conformity with the contract (H.Van
Houtte, op. cit., no. 5.48, p.176). In most cases, a period of more than one month is
considered as being late (S. De Groot, op. cit., p. 675; H.Van Houtte, op. cit., no. 5.50,
p.177); the [buyer] is therefore affected by the loss of the right even if [buyer] had
given notice of the deficiencies to the [seller] on 18 September 1999, quod non.
The period of two years provided for in Article 39(2) CISG, and invoked by the
[buyer], cannot be of any help to [buyer] since it relates to an absolute limit, which is,
besides, of a subsidiary nature; it is applicable only where the buyer could not have
protested earlier because the lack of conformity did not come to light before then
(cf. H. Van Houtte et al, op. cit., no. 5.53, p.179), which is not the case here.
From the above, it is held that the [buyer]'s counterclaim is unfounded; and that the
[seller]'s claim for the amount of the unpaid balance of the invoice, i.e., Bf500,000, is
founded.
4. Additional claims of seller
As far as the additional claims of [seller] are concerned (contractual damages clause,
contractual interest), it has to be noted that Article 6 CISG is based on the principle of
party autonomy (the parties may exclude the application of the Convention, derogate
from or vary the effect of any of its provisions) and Article 9 CISG postulates the
binding force of usages to which the parties have agreed and of any practices which
they have established between themselves. At the opposite end is Article 19 CISG,
which contains strict rules concerning offer, acceptance and modification of the terms,
and which requires complete agreement before the contract comes into existence;
thus, mere silence does not amount to an acceptance (J. Meeusen, "Totstandkoming
van de overeenkomst", in H.Van Houtte et at, op. cit., nos. 3.56, 3.58 and 3.60, pp.91-
94; according to H.Van Houtte, doubt is cast by the provisions of the Convention on
the Belgian opinion that the general terms of the invoice are binding because the
buyer tacitly accepted them: see "Het Weens Koopverdrag in het Belgish recht",
T.B.H., 1998, p. 344 et seq., in particular no. 22, p. 350 ; cf. Commercial Court of
Hasselt, 2 December 1998, R.W., 1999-2000, 648).
In this case, there is no proof that the [buyer] at the time of conclusion of the contract
-- which forms the basis for the claim for the balance of the invoice in this action --
had knowledge of the standard terms of the [seller] and thus had accepted them. In the
written contract dated 7 May 1999 ([buyer]'s brief, exhibit no. 2), these standard terms
do not appear; there is not even a reference to these standard terms. Consequently, the
invoice terms of the [seller] cannot be applied.
The [seller] is entitled to a claim for interest because of the late payment, under
Article 78 CISG.
Whereas the CISG does not itself determine the interest rate in the case of late
payment, this interest rate is determined according to the law of the currency of
payment (cf. H. Van Houtte, "Het Weens Koopverdrag in het Belgish recht", T.B.H.,
1998, p. 344 e.v., inz. No. 33, pp. 352-353); in this case, the Belgian legal interest
calculated from the date when the payment should have been made, namely, the date
of delivery (6 August 1999) according to the contract of 7 May 1999.
5. Seller's argument against the possibility of consignment of debt
The [seller] requested the exclusion of the possibility that the [buyer] might avoid
enforcement by consigning the amount owed. That action is a fundamental right of the
debtor and [seller] cannot limit himself to a few clichs to justify a decision of this
kind but instead must prove that the delay in the payment exposes [seller] to a serious
disadvantage. Since the [seller] does not present any proof in that respect, his claim
for the exclusion of the possibility of consignment cannot be taken into account
(see Gent, 1ste Kamer, 17 April 1997, A.R. 1997/564 intake Mafar/Fenestra).
III. THE COURT'S RULING
Considering Article 2 and following the Law of 15 June 1935 on the use of language
in judicial cases; on these grounds, the Court, having heard both parties, any other
decisions being rejected:
Declares the [seller]'s claim admissible and founded and, to that extent, orders the
[buyer] to pay to [seller] the sum of Bf 500,000 with 7% interest per annum from 6
August 1999 to date of payment;
Rejects the additional claims of [seller] for contractual damages and interest;
Declares the counterclaim of [buyer] admissible but unfounded;
Finds [buyer] liable to pay the costs of the proceedings, those expenses incurred
by the [seller] can be estimated in the amount of:
citation and enrolling on case list: Bf 15,507
proceedings compensation: Bf 12,900
Bf 28,407
Declares the present judgment executable, notwithstanding any further appeal.
[...]
Case 4
CISG CASE PRESENTATION
United States 31 January 2007 Federal District Court [Minnesota] (Travelers Property
Casualty Company of America et al. v. Saint-Gobain Technical Fabrics Canada
Limited)
[Cite as: http://cisgw3.law.pace.edu/cases/070131u1.html]
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Case identification
DATE OF DECISION: 20070131 (31 January 2007)
JURISDICTION: United States [federal court]
TRIBUNAL: U.S. District Court, Minnesota [federal court of 1st instance]
JUDGE(S): Anne D. Montgomery, U.S. District Judge
CASE NUMBER/DOCKET NUMBER: Civ. 04-4386 ADM/AJB
CASE NAME: The Travelers Property Casualty Company of America and Hellmuth
Obata & Kassabaum, Inc. v. Saint-Gobain Technical Fabrics Canada Limited
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Canada (defendant)
BUYER'S COUNTRY: United States (plaintiff)
GOODS INVOLVED: Mesh for exterior walls of an arena for athletic events and
other events

Case abstract
UNITED STATES: Federal District Court [Minnesota] 31 January 2007
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/83],
CLOUT abstract no. 847
Reproduced with permission of UNCITRAL
Abstract prepared by Harry M. Flechtner, National Correspondent
In an action alleging that a seller of construction materials delivered defective
products, a U.S. federal District (trial) court applied the CISG despite a choice-of-law
clause in the buyer's purchase orders which designated the law of a particular U.S.
state (Minnesota). The court noted that both the buyer and seller were located in
Contracting States (the U.S. and Canada, respectively) so that the CISG would apply
to the transaction unless excluded by the parties. It held that the choice-of-law clause
did not establish such an exclusion, noting that "absent an express statement that the
CISG does not apply, merely referring to a particular state's law does not opt out of
the CISG." The court cited with approval another court's statement that "an
affirmative opt-out requirement promotes uniformity and the observance of good faith
in international trade, two principles that guide interpretation of the CISG." In support
of its approach, the court stated that "[a] majority of courts interpreting similar choice-
of-law provisions ... conclude that a reference to a particular state's law does not
constitute an opt-out of the CISG; instead, the parties must expressly state that the
CISG does not apply" (citing U.S. decisions).
The seller had shipped the goods in response to the buyer's purchase orders before the
seller dispatched invoices containing its own terms. The buyer argued that, under the
CISG, the terms in the buyer's purchase order were thus necessarily incorporated into
the party's contract. The court disagreed. It reasoned that, although it was possible that
the seller had accepted offers on the buyer's terms, pursuant to Article 11 CISG the
parties may alternatively have formed contracts orally before the buyer's purchase
orders were sent. [In addition, the court held that the buyer had to that point failed to
provide sufficient proof of all the relevant purchase orders.] Thus it was necessary to
hold a trial in order to determine the full facts of the transaction.
The court also discussed whether the buyer's allegations would establish a breach of
the seller's obligations concerning the quality of the contracted-for goods. It analysed
the question under U.S. domestic sales law - Article 2 of the Uniform Commercial
Code ("UCC") - rather than the CISG. It justified its approach by explaining that the
parties had assumed in their briefs that UCC Article 2 applied to the issue, and it cited
dicta from an earlier U.S. CISG decision (dicta that has been followed in a number of
other U.S. CISG decisions) stating that case law interpreting "analogous" provisions
of U.S. domestic sales law may "inform" a court's interpretation of the CISG. In the
court's view, therefore, the seller's obligations concerning the quality of delivered
goods could be "analysed under the Minnesota UCC, as briefed by the parties".[1] [1.
See footnote 4 of the opinion.]
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Classification of issues present
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles 6 ; 18 ; 19 ; 35 [Also cited: Articles 11 ; 14 ]
Classification of issues using UNCITRAL classification code numbers:
6B [Choice of law of Contracting State without exclusion of CISG = choice of CISG];
18C [Acceptance of offer: assent by performing an act];
19A ["Acceptance of offer with modifications]
35B [Conformity of goods to contract (requirements implied by law): the court states:
"[T]he parties cite almost exclusively to Minnesota law ... The parties have not briefed
whether application of the CISG to TEC's contract claims would differ from
application of the Minnesota UCC. However 'case-law interpreting analogous
provisions of Article 2 of the Uniform Commercial Code ... may also inform a court
where the language of the relevant CISG provision tracks that of the UCC." Delchi
Carrier S.p.A. v. Rotorex Corp, ... Therefore, unless noted otherwise, Saint-Gobain's
Motion [which the court granted] is analyzed under the Minnesota UCC, as briefed by
the parties."
Descriptors: Autonomy of partes ; Choice of law ; Acceptance of offer ; Battle of the
forms ; Conformity of goods

Incoterms
Incoterms 2010
RULES FOR ANY MODE OF TRANSPORT:
ExWorks (EXW): the seller fulfills his obligations by having the goods available for the buyer to pick
up at his premises or another named place (i.e. factory, warehouse, etc.). Buyer bears all risk and
costs starting when he picks up the products at the sellers location until the products are delivered to
his location. Seller has no obligation to load the goods or clear them for export.
Free Carrier (FCA): the seller delivers the goods export cleared to the carrier stipulated by the buyer
or another party authorized to pick up goods at the sellers premises or another named place. Buyer
assumes all risks and costs associated with delivery of goods to final destination including
transportation after delivery to carrier and any customs fees to import the product into a foreign
country.
Carriage Paid To (CPT): seller clears the goods for export and delivers them to the carrier or
another person stipulated by the seller at a named place of shipment. Seller is responsible for the
transportation costs associated with delivering goods to the named place of destination but is not
responsible for procuring insurance.
Carriage and Insurance Paid To (CIP): seller clears the goods for export and delivers them to the
carrier or another person stipulated by the seller at a named place of shipment. Seller is responsible
for the transportation costs associated with delivering goods and procuring minimum insurance
coverage to the named place of destination.
Delivered at Terminal (DAT): seller clears the goods for export and bears all risks and costs
associated with delivering the goods and unloading them at the terminal at the named port or place of
destination. Buyer is responsible for all costs and risks from this point forward including clearing the
goods for import at the named country of destination.
Delivered at Place (DAP): seller clears the goods for export and bears all risks and costs associated
with delivering the goods to the named place of destination not unloaded. Buyer is responsible for all
costs and risks associated with unloading the goods and clearing customs to import the goods into the
named country of destination.
Delivered Duty Paid (DDP): seller bears all risks and costs associated with delivering the goods to
the named place of destination ready for unloading and cleared for import.
RULES FOR SEA AND INLAND WATERWAY TRANSPORT:
Free Alongside Ship (FAS): seller clears the goods for export and delivers them when they are
placed alongside the vessel at the named port of shipment. Buyer assumes all risks/costs for goods
from this point forward.
Free on Board (FOB): seller clears the goods for export and delivers them when they are onboard
the vessel at the named port of shipment. Buyer assumes all risks/cost for goods from this moment
forward.
Cost and Freight (CFR): seller clears the goods for export and delivers them when they are onboard
the vessel at the port of shipment. Seller bears the cost of freight to the named port of destination.
Buyer assumes all risks for goods from the time goods have been delivered on board the vessel at the
port of shipment.
Cost, Insurance, and Freight (CIF): seller clears the goods for export and delivers them when they
are onboard the vessel at the port of shipment. Seller bears the cost of freight and insurance to the
named port of destination. Sellers insurance requirement is only for minimum cover. Buyer is
responsible for all costs associated with unloading the goods at the named port of destination and
clearing goods for import. Risk passes from seller to buyer once the goods are onboard the vessel at
the port of shipment.