Prof. Giorgio F. COLOMBO

Lesson n. 5

 Art. 11 CISG  A contract of sale need not to be concluded in or evidenced by writing and is not subject to any other requirements of form. It may be proved by any mean, including witnesses

 This prevails over other requirements in national laws  Contracting States may, however, make a reservation about this provision (Art. 12 and 96, CISG)  In case States made a reservation, parties cannot derogate from it  However, the notion of «writing» is quite ample

 Art. 13 CISG  For purposes of this Convention, ‘writing» includes telegram and telex  The Convention is  How about s? ◦ SMS? ◦ WhatsApp? ◦ Ecc.?

 Art. 14 CISG  (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound. A proposal is sufficiently defined if it indicates the goods and expressly or implicitly fixes or makes provisions for determining the quantity and the price

 A Russian company (Buyer) orders some chemical products from an Austrian company (Seller)  The parties agree the price would be 100 EUR/Kg.  As for the quantity, the Buyer asks for the «maximum quantity which may be stored in a container»  Is that a valid agreement under Art. 14 CISG?

 A Swedish company (Buyer) orders wine from a Spanish produce (Seller)  The parties agree that Buyer will buy «the entire production for the season 2015/2016»  The parties agree that the price «will be determined according to the quantity, based on the retail prices for last year»  In 2014/2015, Seller produced 1,000,000 liters. Each litre had a retail price of 50 Euro  Is that a valid agreement under Art. 14 CISG?

 Art. 55 CISG  Where a contract has been validily concluded but does not expressly or implicilty fix or make provisions for determining the price, the parties are considered, in the absence of any indication to the contrary, to have made 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

 What is the relationship between Art. 14 and Art. 55?  If the parties do not agree on a price, can it still be determined by Art. 55?  Art. 14 and Art. 55 operate indipendently: ◦ Art. 14 – a price is determined or determinable (also in the future  makes provisions) ◦ Art. 55 – there must be a market price for the goods  Read carefully: ◦ Where a contract has been validly concluded ◦ In absence of any indication to the contrary

 Art. 15 CISG  (1) An offer becomes effective when it reaches the offeree  (2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer

 Does it mean that the offeree has to read it?  How about electronic communications? ◦ Server? ◦ Opening? ◦ How about spam folders?

 Art. 16 CISG  (1) Until a contract is concluded an offer may be revoked if the revokation reaches the offereee before he has dispatched an acceptance  (2) However, an offer cannot be revoked  (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that is irrevocable; or  (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance of the offer

 Common law vs. Civil law ◦ Always revokable ◦ Irrevokable if stated  Compromise  The purpose is to promote serious behaviors

 A Spanish Seller tells a German Buyer that it is willing to sell a crane for EUR if the Buyer deposits the amount of EUR in a specific bank as guarantee  After one week, the Buyer tries to make the deposit  When the Buyer tries to deposit the money, the bank refuses to accept it. The bank informs the Buyer that the Seller has closed the account  The Seller then informs the Buyer that they had received another offer and they already sold the crane