Case number: 134
Article number: sales convention / 11; 14; 53; 62; 92
Thessaurs issue:
Country of decision: Germany
Year of decision: 1995
Type of decision: Judicial decision

Case 134: CISG 11; 14; 53; 62; 92
Germany: Oberlandesgericht Mnchen; 7 U 5460/94 8 March 1995
Unpublished

A Finnish company sold 3000 tones of electrolyt nickel/copper cathodes to the German defendant for about 17 million US dollars. Only the defendant signed the written contract form. The metal was delivered but not paid for. The Finnish company then assigned the payment claim to the plaintiff who demanded payment. The defendant denied the jurisdiction of the German court because of an arbitration clause and the valid conclusion of a sales contract.

Concerning the arbitration clause, the court found that the form requirements of the applicable article 2 (2) of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 had not been satisfied, since the parties had not signed the agreement containing the arbitration clause and the Finnish company had not received the standard form which contained the clause.

Concerning the payment claim, the court applied the CISG since both parties to the sales contract had their places of business in different CISG Contracting States, namely in Finland and in Germany. It was held that a contract had been effectively concluded between the defendant and the Finnish company and that the plaintiff's claim for payment was justified under articles 53 and 62 CISG.

Even though Finland had declared that it would not be bound by Part II of the CISG concerning the "Formation of the Contract", an effective contract could still have been concluded. According to the CISG other forms of consent are possible as long as they can be regarded as a mutual binding arrangement and the subject-matter of the contract is comparable to articles 14-24 CISG. In an obiter dictum, the court explicitly excluded recourse to the governing contract law. The defendant signed a contractual document thus showing its approval of the contract and also accepted the goods upon arrival. The Finnish company indicated assent to the contract by its conduct, namely through the delivery of the goods. A written contractual agreement is not necessary to evidence the parties' consent (art. 11 CISG).