ABSTRACT
The plaintiff, a German buyer, and the defendant, an Austrian seller, entered into an agreement for the FOB delivery of a certain quantity of propane gas. The parties exchanged communications by facsimile and telephone on the terms of their agreement, including the method of payment (letter of credit). The buyer, however, did not obtain a letter of credit since an essential element was missing, i.e. the seller failed to name the port of origin. In addition, the seller made the delivery of the gas subject to the conditions that it was not to be resold in the Benelux countries. The parties had initially intended to enter into a “basic agreement”, which would contain the general conditions of the seller and would constitute the trade usages that would govern the transactions between the parties, but could not reach an agreement. The draft of the ‘basic agreement’ stated that all orders should be in writing. However, the seller could not prove that the “basic agreement” nor the general conditions had been made known to the buyer.
