ABSTRACT
Considering THAT, as to the reality of the order sent by [buyer], [seller] relies on Article 18(1) of the CISG and maintains that its silence or its inactivity “does not in itself amount to acceptance”; it is thus advisable that the Court consider the practices followed by the parties during the previous orders and examine the factual circumstances which surround the present dispute; Considering THAT, the [seller] has not produced acceptances of the orders sent by [buyer] in 1993, the Court deduces from this that [seller] manufactured without making known its acceptance to [buyer]; THAT starting from a premise based on the computer or manual shape of order forms, the [seller] presents deductions concerning the existence or the absence of the order: but that the [buyer] is a master in the use of modern equipment, using data processing to place orders at the end of the year 1994; the Court, however, does not follow the [seller] in these deductions; manual order forms, as well as computer lists, could have been forged for the needs of the lawsuit; THAT, furthermore, the Court observes that M. Lautiat’s affidavit, on 20 September 1996, while verbose on the method of payment of the orders, is silent on the forms taken by the orders which it passed on; THAT it results from practices followed by the parties, in 1993 and the beginning of 1994, that the [seller] executed the orders without expressing its acceptance; [seller]’s reliance on the provisions of Article 18(1) of the Vienna Convention [CISG] is thus ineffective. [. . .]
Oberlandesgericht Hamm (Germany), 22 September 1992,
CISG-online 5771
[Facts] A German buyer, defendant, offered to purchase ten lots of wrapped bacon from an Italian seller, plaintiff. The seller’s reply to the buyer’s offer referred instead to unwrapped bacon. However, in its reply to the seller, the buyer did not object to the change in terms. After four lots had been delivered, the buyer refused to accept further deliveries. Therefore, the seller declared the contract avoided and sold the remaining six lots at a price much lower than both the market – and the agreed purchase – price. The seller claimed damages, the outstanding purchase price and interest.
