Case number: 121
Article number: sales convention / 1(1)(a); 14(1); 19(1)
Thessaurs issue:
Country of decision: Germany
Year of decision: 1994
Type of decision: Judicial decision

Case 121: CISG 1(1)(a); 14(1); 19(1)
Germany: Oberlandesgericht Frankfurt; 10 U 80/93 4 March 1994
Published in German: OLG Report (OLGR), 1994, 85

The Swedish plaintiff asked the German defendant to make an offer for special screws of a certain quality. The defendant filled in the prices and delivery periods and sent the letter back. The plaintiff then ordered 3,400 pieces of the named screws as well as 290 pieces of other articles not mentioned before. The defendant confirmed the order but requested payment in advance or a letter of credit. The plaintiff, in turn, asked for a pro-forma invoice. The defendant sent an invoice which listed articles of lower quality with their respective prices. The plaintiff objected immediately and demanded delivery of the articles in the "ordered" quality. The defendant proposed delivery of higher-quality articles for a higher price, but the plaintiff insisted on delivery of the higher-quality items for the price listed in the invoice.

The court found that the CISG was applicable as both parties had their place of business in States parties to the CISG (article 1(1)(a) CISG). The court noted that, pursuant to article 19(1) CISG, a reply to an offer that contains terms at variance with the offer is a rejection of the offer and constitutes a counter-offer. Accordingly, the plaintiff's final order constituted a new offer. Yet, this new offer was not sufficiently definite in the sense of article 14(1) CISG, because the prices of some of the ordered articles were neither known nor determinable. Consequently, the court held the new offer could not lead to the effective conclusion of a contract as it did not comply with article 14(1) CISG.