Q 55-2
(a) How is the missing contract price to be determined under Article 55 CISG?
(b) To what do the other legal provisions refer?
(c) On the determination of the sales price, see, in particular, Article 57 ULIS. What changes have been made in Article 55 CISG? Is there another domestic sales law provision providing for a similar solution to Article 57 ULIS? Is there still a difference between Article 57 ULIS and that other domestic rule?
(d) Do you regard Article 55 CISG as giving clear instructions on how to establish the missing purchase price? See Article 5.1.7 PICC 2016.
(a) Article 55 deems the parties to have impliedly referred to the price generally charged at the time of conclusion for such goods under comparable circumstances in the trade concerned. The benchmark is a market-based standard, focusing on comparability of goods, circumstances, and trade practices.
(b) ULIS: to what the seller charged at the time
PICC: the price generally charged at the time for such performance in comparable circumstances in the trade concerned
UCC: agreed market or other standard as set or recorded by a third person or agency
CC: party agreement only
Codice Civile: price usually charged by the seller, if the seller regularly sells these goods; otherwise applicable stock exchange or market prices
Civil Code of PRC: government-set or government-guided price as required by law, otherwise market price in the place of performance
(c) No longer price charged by seller, but price generally charged. Article 57 ULIS and Article 1474 Codice Civile both refer to price charged by seller. Codice Civile refers to the parties’ intention and it is a presumption. There is no presumption and no reference to parties’ intention in ULIS.
(d) Yes, it sets out the circumstances of application and provides for clear reference points. In the absence of a price, one could have reference to PICC 2016 and imply a reasonable price in order to give effect to the parties’ intentions.
Q 55-3
(a) Under what circumstances does Article 55 CISG apply?
(b) According to the court in C 55-1, what is the pre-requisite for Article 55?
(c) What does C 55-2 say about the risk allocation under Article 55 CISG?
(a) Where no price is determined or determinable from the contract.
(b) Article 55 CISG is only applicable if a contract has been validly concluded.
(c) Article 55 CISG is representative of a proper division of risk between seller and buyer concerning a price: the buyer is protected from paying too much and is also prevented from benefiting from a very advantageous price.
Q 55-4
What factors should a court consider when determining the “price generally charged” under Article 55 CISG?
A court should assess the trade’s prevailing market at the time of conclusion, focusing on comparable goods, quantities, quality/specifications, and the relevant place or market. It should weigh Incoterms and delivery/payment terms (credit, currency, timing), taxes/duties, customary discounts, and sectoral price indices or exchange quotations, alongside established usages of the trade and parties’ prior course of dealings. Evidence may include spot prices, published benchmarks, contemporaneous offers, and substitute transactions under comparable circumstances, ensuring adjustments for logistics, risk allocation, and regulatory constraints to reflect the price generally charged.
Q 55-5
(a) Sometimes, courts or tribunals try to determine a missing price with a view to ‘saving’ the contract or rendering it effective. Under what circumstances will there definitely be no contract under the CISG, notwithstanding Article 55?
(b) In which of the provisions from other legal systems referred to above is this legal position made particularly clear? Do you know of any others to contrast and compare?
(a) If the other essential elements of Article 14 CISG are missing.
(b) Under Article 1591 CC, the price has to be designated by the parties. If a price is not designated, there is no contract.
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