Claimant's brief (Cologne) - Pace University

UNIVERSITY OF COLOGNE Page 6
2. Even if it was RESPONDENT’s intention to exclude salt from the machines
packaging capabilities, this is irrelevant according to Art. 8 (1) CISG
11 It is irrelevant whether it was RESPONDENT’s intention to exclude packaging salt from the
capabilities of the machines. Pursuant to Art. 8 (1) CISG, statements are only to be interpreted
according to a party’s intention if the other party – i.e. CLAIMANT – knew this intention or
could not have been unaware of it.
12 First, CLAIMANT did not know RESPONDENT’s intention. Secondly, CLAIMANT could
not have been aware of RESPONDENT’s intention as RESPONDENT did nothing to
communicate it. RESPONDENT did not mention Model 17 machines that are specifically
designed for packaging salt and did not reveal any details about the material of which the
offered machines were made (Claimant’s Exhibit No. 2). Therefore, CLAIMANT could not
have known that processing salt required special variants of auger-feeders which had to be
made of stainless steel (Procedural Order No. 3 at 14).
13 Furthermore, CLAIMANT had no reason to consult other sources of information like
brochures or the Internet. By directly contacting RESPONDENT with its letter dated 24 June
2002 (Claimant’s Exhibit No. 1) CLAIMANT sought personal consultation. That was the
most reliable way of finding out which machines would be suitable for CLAIMANT’s
requirements. RESPONDENT itself did not refer to any additional sources of information like
its website or literature (Procedural Order No. 3 at 17).
14 Thus, according to Art. 8 (1) CISG, CLAIMANT neither knew nor could have been aware of
RESPONDENT’s possible intention to exclude salt from the machines packaging capabilities.
Hence, any such intention was irrelevant.
3. CLAIMANT accepted this offer of machines capable of packaging salt
15 CLAIMANT accepted this offer of machines capable of packaging salt in its letter dated 12
July 2002 (Claimant’s Exhibit No. 3) without any modification. Therefore, an interpretation
according to Art. 8 (1) CISG as well as according to Art. 8 (2) CISG leads to the result that
the acceptance concerned six Model 14 machines capable of packaging salt.
16 Hence, in accordance with Arts. 18, 23 CISG the parties contracted for machines capable of
packaging salt. The machines delivered on 21 August 2002 were not suitable for processing
salt, as they showed serious signs of corrosion after such use (Statement of Case at 8).
Consequently, they were not in conformity with the contract pursuant to Art. 35 (1) CISG.