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Case Organization #1Dividing wall panels case - Austrian Supreme Court

Grounds for the decision[Background information]Sellers PositionBuyers PositionInterveners PositionCommercial Court (Court of First Instance) of ViennaCourt of Appeals of ViennaReasoning of the Supreme Court of AustriaOrder of the Supreme Court

Case Organization #2Akefamu v. Sinochem Hainan Shanghai High Peoples Court

ProceedingsPosition of the PartiesFindings of the Court of First InstanceThe appealHolding of the Appellate Court

Case Organization #3Camara Agraria Provincial de Guipuzcoa v. M. Andre Margaron appeals court of Grenoble.

Facts and PleadingsFacts of the case and decision of the Court of First InstanceBuyers PositionSellers PositionAppellate Courts ReasoningJurisdiction competence of the French courtPlace of performance of buyers obligation to make paymentMerits of the caseInterestCost associated with the appellate proceedingAppellate Courts Ruling

Sellers PositionSeller asserted in support of its claim for 16,140.10 DM that the panels it sold for this amount had displayed transport damage after their return. The panels were received by the manufacturer in such a poor condition that they could only be used as burning material. The panels were not correctly shipped by the intervenor. The buyer assumed the transportation risk.Buyers PositionBuyer objected that the returned panels had been accepted by the manufacturer without any reservation on the consignment note. By delivering goods not in conformity with the contract, the seller has to bear the risk of the return transportation of the goods. The agreement on the transfer of risk ex factory refers only to panels which were ordered (as per the contract), but not to the panels concerned in this case, namely, (panels) which were not delivered in conformity with the order. In any event, the buyer had not caused the damage to these panels.U.S. Courts ReasoningUnder the Convention, a contract may be modified or terminated by the mere agreement of the parties. Id., art. 29(1). However, the Convention clearly states that [a]dditional or different terms relating, among other things, to . . . the settlement of disputes are considered to alter the terms of the offer materially. Id., art. 19(3). There is no indication that [the buyer] conducted itself in a manner that evidenced any affirmative assent to the [terms] in the invoices. Austrian Court ReasoningThrough Art. 29 CISG, which regulates modification or termination of the contract, it is clear that the formation of such contracts is subject to the CISG. The avoidance of a sales contract subject to the CISG is, in principle, not subject to formal requirements. Thus, avoidance could also be done orally, or as here, over the telephone, as well as impliedly (Karollus, op, cit., Art. 29, Annotation 9 with further references; Herber/Czerwenka, Internationales Kaugrecht, Art. 29 UN-K, Annotation 4). Austrian Courts Reasoning3. Buyer is neither entitled to reduce the price according to Art. 50 CISG, nor may buyer declare the contract avoided with respect to the goods that are still in stock. Art. 50 CISGIf the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time.