广外法律英语重点(5)

negotiations of the parties. The whole contract should be unenforceable.

Decision:

Unenforceable、void、illegal

4. Facts:

a. Buyer(Chateau)

Sabate argued--- The case should be heard in France according to the forum selection clause in the invoice sent to Chateau.

Chateau claimed--- The verbal contract had been concluded and the later forum selection clause was not part of it.

Legal issue:

General issue----Where should the case be heard?

Specific issue----Whether the forum selection clause in the invoices was part of the contract

----Whether the oral agreements between two parties were sufficient to create a binding verbal contract.

----Whether the unilateral attempt of Sabate by adding a new term was effective to modify the verbal contract.

Reasoning:

a. The relevant rule: the CISG

b. Specific reasoning steps:

Judge reasons out that the parties had concluded a verbal contract.(---Art. 11/14/18/23)

Judge points out the wrong logic of Sabate’s contention by clarifying the difference between Art. 29 and Art. 19.

Judge emphasizes that Sabate’s adding forum selection clause in the invoices is the unilateral attempt to modify the verbal contract of the parties, and Chateau’s failure to object to such attempt should not be taken as an agreement. (---Art.29 / 8) Decision:

The verbal contract for the purchase of corks was vaild and binding.

The attempt by the seller to later include a new and material term in the invoices was not effective.

The buyer did not assent to the new term simply by receiving and paying for the goods.

Reserved and remanded.

5. Legal issue:

Where the case should be arbitrated?

---1.Whether the covering letter purporting to exclude parts of the Russian contract was ineffective as a rejection of the March offer?

---2.Whether F’s retention of the letter and its acceptance of C’s performance