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Résumé du document

An Italian company orders some chemical products by phone from a German supplier on the 12 of December 2001. On the 18th of December, a confirmation by fax of the order is sent by the Italian company to the German supplier. The purchase order specifies that the product must be in the granular version (specific chemical characteristics).

On the 13 of December, the German company sends one part of the order (the quantity left in their stock of products not granular but liquid). Ten days after, around the 24 of December, the German company sends the other part of the order and delivers the same products as in the first shipment.

Explain the validity of the contract. What can the buyer do?

I) Identification of the legal problems

The first problem is that the products sent by the German supplier do not respect the specific characteristics that is to say the granular version of the products, whereas the purchase order specifies that the product must be in that specific chemical characteristics (in the granular version).

Extraits

[...] Nevertheless, this can be applied only if the law of Germany doesn't hurt the moral and customs of the second country, that's to say the France in this case. Contract In December 2006 a consumer purchased Italian floor tiles from a French distributor. The tiles are guaranteed against frost. The purchaser installs the tiles during spring 2007 on his terrace. Almost five years later, the 2011-2012 winter is very cold and cracks appear on the terrace. The tiles did not resist the frost. The purchaser initiates a legal complaint against the French distributor. The courts find the distributor guilty and he has to indemnify the purchaser. [...]

[...] What can the buyer do? Identification of the legal problems The first problem is that the products sent by the German supplier do not respect the specific characteristics that is to say the granular version of the products, whereas the purchase order specifies that the product must be in that specific chemical characteristics (in the granular version) The second problem is that a part of the quantity ordered has been sent by the seller before he has confirmed that he took into account the phone order. [...]

[...] Art 19 : reply to an offer which purports to be an acceptance but contains ( ) modifications is a rejection of the offer and constitutes a counteroffer( It explains why the answer of the Hungarian company is an counteroffer : it's because the answer from the Hungarian company contains modifications. Art : statement made by or other conduct of the offer indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance” Art the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination” It explains that FOB would be possible. Nevertheless, they still need an acceptance from the two companies : the silence concerning this point doesn't mean acceptance. [...]

[...] III) Provide solutions The sales contract was signed under the Vienna Convention. The French distributor had a right reaction to initiate a legal recourse against the Italian manufacturer because he didn't know when the contract has been sign that the guarantee wouldn't have been respected. The law is in favor of the buyer in this situation but the Italian manufacturer can rely the fact that the situation and the cold was extremely intense and durable in the time, which create an exceptional situation for what the tile would not be guaranteed in this kind of case. [...]

[...] Identification of the legal problems The obligation of the parties on the quality of the product has not been respected. Indeed, cracks appeared on tiles because of the cold but the tiles are normally guaranteed against frost. So, there is non respect of the obligations of the parties. II) Legal rules that applies The expected quality is not respected, because the tiles should be resistant to frost. There is a breach of guarantee which doesn't allow the buyer to receive a conform product. [...]