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).
[...] Upon receipt of the purchase orders, the Hungarian company issued a confirmation document of the said purchase order, stating that the competent jurisdiction in case of litigation would be Hungary. The purchase order also stated that the merchandise would be delivered FOB. Which is the competent jurisdiction? Why? Identification of the legal problems The validity of the agreement : the counter offer proposed by the Hungarian company has to be accepted to become a contract. Here, the confirmation which says different things than the offer is in reality a counter offer. [...]
[...] 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. [...]
[...] II) Legal rules that applies This is a bilateral treaty, and the parties are free to chose the applicable low to the contract. The competent jurisdiction is the one located in the country of the seller, except if the foreign law is contrary to the law order of the buyer, so the Hungarian. The reference to the Vienna Convention : We are in the sphere of application of the Vienna Convention because there are two countries (France and Hungary) based in contracting states, and because they are professionals. [...]
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