MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn evident that CLAIMANT and RESPONDENT intended to be bound by contract [Bianca/Bonell/Eörsi, Art. 55 note 2.2.4; Bucher, p. 58]. Instead, the offer becomes irrelevant and the contract in itself proves that it is sufficiently definite, irrespective of whether the offer contained a provision for the determination of the exact rate of the discount [cf. Ludwig, p. 297; Bianca/Bonell/Eörsi, Art. 55 note 2.2.4]. As Art. 55 CISG provides, the question is not “Was there a contract?” but rather “What were its terms?” [cf. Honnold et al, Art. 55 note 325.1]. The answer under CISG rules is that the parties are considered to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned [Art. 55 CISG]. For this reason, it was not necessary for CLAIMANT and RESPONDENT to determine the discount RESPONDENT was to receive during their conversation. 62. In conclusion, even if the Tribunal finds that there was no agreement on the discount, the parties have nevertheless concluded a valid contract. The discount is then to be determined according to Art. 55 CISG. c. The domestic law of Equatoriana has no impact on the validity of the contract 63. The domestic law of Equatoriana does not affect the validity of the contract between CLAIMANT and RESPONDENT. Art. 4 CISG states that the Convention is not concerned with the validity of a contract “except as otherwise expressly provided” in the CISG. As Artt. 55 and 14 CISG explicitly deal with price determination, the “validly concluded” contract in Art. 55 CISG refers to reasons for invalidity under national laws other than invalidity for an open price [Nicholas, p. 255; Staudinger et al/Magnus, Art. 14 note 34]. Therefore, these rules prevail over the Equatorian law [Schlechtriem/Lüderitz, Einheitliches Kaufrecht, p. 189; Magnus, IPRax 1996, p. 146]. V. The contract was concluded including a 4% discount 64. The parties agreed on a discount of 4% (A.). Even if the Tribunal finds that the parties did not agree on a discount, the contract has been concluded including a 4% discount (B.). 23
Rheinische Friedrich-Wilhelms-Universität Bonn A. The agreement the parties reached during their telephone conversation can only be interpreted as including a discount of 4% from CLAIMANT's list price a. The agreement has to be interpreted according to Article 8 CISG 65. During their telephone conversation Mr. Black and Mr. Storck agreed to apply CLAIMANT's conditions of sale as stated in the contract dated 15 December 2000 [cf. CLAIMANT’s Exhibits No. 3 and No. 4]. RESPONDENT claims that this agreement leads to an 8% discount, similar to the discount given for the last order. However, it can be clearly shown that a 4% discount was agreed upon and that the 8% discount was an incentive offer only applying to the previous order. To determine the meaning of the agreement, it has to be interpreted according to Art. 8 CISG. This article applies to any kind of declaration and also to statements about the price made during a telephone conversation. [cf. OGH, 10 November 1994 (Austria); MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova d'Agostino, S.p.A (U.S.); Honnold et al, Art. 8 p. 116; Amato, J. L. & Comm 1993, p. 6; Secretariat Commentary to Art. 12, para. 7] 66. Pursuant to Art. 8(1) CISG, the agreement reached is to be interpreted according to the intent of each party "where the other party … could not have been unaware what that intent was". Due consideration has to be given to all relevant circumstances of the case [Art. 8(3) CISG]. b. RESPONDENT could not have been unaware of CLAIMANT's intent to grant only a 4% discount 67. When Mr. Storck agreed on 3 April 2001 to sell polypropylene film to RESPONDENT, he intended to grant a discount of 4%. The 8% discount granted in the previous contract was an incentive one time offer applying to the previous contract only. 68. CLAIMANT drafted the written contract of 15 December 2000 because RESPONDENT placed an order with CLAIMANT for the first time [cf. CLAIMANT’s Exhibit No. 1]. By stating to draft a formal contract only for this first time order, CLAIMANT expressed the intention of being able to refer to that contract in future agreements. When Mr. Storck did so during the telephone conversation, Mr. Black could not have been unaware that only those explicit provisions or implicit arrangements are referred to, that were drafted to serve as 24
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
Page 3 and 4: Rheinische Friedrich-Wilhelms-Unive
Page 9 and 10: Index of Authorities Rheinische Fri
Page 11 and 12: Derains, Yves / Schwartz, Eric A. D
Page 17 and 18: Witz, Wolfgang / Salger, Hanns Chri
Page 19 and 20: Belgium Rheinische Friedrich-Wilhel
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MEMORANDUM FOR CLAIMANT

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