ABSTRACT
Under the Vienna Convention (Art. 14) a proposal to conclude a contract must be fairly definitive. It is to be deemed as such if goods are indicated therein, and the quantity and the price, or the mode of their determination, are directly or indirectly provided for in it. The [seller’s] telex relating to the deliveries in the first quarter of the following year indicated the goods and their quantity. But it failed to provide for either the price of the goods, or the mode of its determination. The statement in the telex that the prices of these goods would be agreed upon (revised) ten days before the new year began could not be construed as signifying the mode of the determination of the price. It was only the expression of consent to determine the price of goods in future by agreement of the parties. Having confirmed this proposal by his telex, the [seller] thus agreed to the price of these goods being subject to an additional agreement of the parties. Taking into account the above-said, to this case was inapplicable Article 55 of the Vienna Convention enabling the price of goods to be determined when it had not directly or indirectly been set in the contract, or the mode of its determination had not been provided for therein. It followed from the [buyer’s] confirmation . . . of the [seller’s] proposal, as noted above, that the parties implied the necessity to reach an agreement on the price in the future. It followed from the materials of the case and the explanation by the parties that subsequently (following the exchange of telexes) they had not agreed on the price of this lot of the goods. The [buyer’s] assertion . . . that, having presented bills for the goods delivered in January at the price set for the principal lot of the goods, the [seller] thus agreed to the retention in the first quarter of the following year of the price set by the parties in respect of the goods to be delivered in the preceding year could not be held justified. Firstly, when construing, under the provisions of Article 8 of the Vienna Convention, the contents of the proposal of the [seller], confirmed by the [buyer], a conclusion should be drawn that the price had been agreed upon by the parties only in respect of the goods to be delivered in the preceding year as the main lot of the goods. Accordingly, it was at this price that the goods, delivered in January of the following year to make up the non-delivery of this quantity in the preceding year, were to be paid for. Therefore, the presentation for payment of bills for these goods at the price agreed upon regarding the main lot of the goods conformed to the parties’ agreement. Secondly, the delay in the delivery of the goods could not by itself entitle the delaying party to demand that the goods be paid for at higher prices. If an approach suggested by the [buyer] were to be taken, then a conclusion should have been drawn that the [seller] would
have been entitled to present bills for the delayed goods at prices set for the deliveries in the first quarter of the following year, if such prices had been agreed upon by the parties. The level of these prices, judging from the materials, filed by the [buyer], would have been substantially higher. [. . .]
(The Tribunal found that a contract had not been concluded between the parties.)
Questions
Q 14-5 a) Did the Tribunal rely on Art. 55 CISG in C 14-4? b) Why or why not?
