Case number: 193
Article number: sales convention / 18(1)(2)(3); 74; 78
Thessaurs issue:
Country of decision: Switzerland
Year of decision: 1996
Type of decision: Judicial decision

Case 193: CISG 18(1)(2)(3); 74; 78

Switzerland: Handelsgericht des Kantons Zürich; HG 940513
10 July 1996
Original in German
Unpublished
Abstract published in German in Schweizerische Zeitschrift für Internationales und Europäisches Recht 129 [1997]




A dispute arose concerning the purchase price for a consignment of printed chips between the plaintiff, a German seller of plastic parts, and a Swiss buyer, one of three defendants. Although the initial purchase price had been agreed upon, the seller, realizing that production would be more costly, notified the buyer that the purchase price would be increased. The buyer ignored the notification and denied any agreement modifying the initial purchase price. The seller sued the buyer requesting payment of the increased purchase price.





The court held that an agreement between the parties had been reached for the initial purchase price. The seller's notification to the buyer of the increase in the purchase price was, in the court's view, an offer to modify the original contract to which the buyer had not expressed any explicit consent. Mere silence or inactivity does not amount to acceptance (article 18(1)(2) CISG), unless other conduct of the offeree exists indicating consent or the offeree performs an act (articles 18(1) and 18(3) CISG). As the buyer had not expressed an implicit consent, the court found, therefore, that the modification of the purchase price had not been accepted and that the initial purchase price agreed upon was still valid.





As regards interest, the court determined the interest rate under the law designated by the relevant choice-of-law rule (articles 74 and 78 CISG). Accordingly, the court applied the German law at the seller's place of business (Section 352(1) of the Handelsgesetzbuch). Inasmuch as the seller had to obtain a loan owing to the buyer's refusal to pay the purchase price, the seller was awarded the higher interest rate of 9 percent, which had to paid on the loan.