'1. The applicable substantive law

78. According to Art. 14 of the Sales Contract …, the applicable law shall be Swiss material law. The parties did not exclude the application of the [Vienna] United Nations Convention on Contracts for the International Sale of Goods (1980) (hereafter: CISG), which is part of the Swiss material law (SCC 0.221.211.1), since 1st March 1991. They could have excluded application of the CISG according to Art. 6 CISG, but they did not do so.

79. CISG is applicable to contracts of sale of goods between parties whose places of business are located in different States and if the rules of private international law lead to the application of the law of a Contracting State (Art. 1[1][b] CISG). Serbia (as per 27 April 1992) place of business of Respondent, Austria (as per 1 January 1989) place of business of Claimant, and Switzerland (as per 1st March 1991) are contracting States. Since Swiss Law is designated to be applicable according to Art. 116 SPIL [Swiss Statute of Private international Law of 18 December 1987], CISG is applicable to the present case. However, the contract constitutes the first basis of the parties' relationships and most of the dispute relies on a question of contract interpretation.

80. Interpretation of the contract should follow the principles set out in Art. 8 CISG. This provision states the following:

(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.

(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.

(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.

This provision applies not only to the interpretation of concluded contracts (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 3 ad Art. 8 CISG and references), but also to one-sided statements of the parties, when they lead or should lead to the conclusion of a contract (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 1 and 2 ad Art. 8 CISG), as well as when they lead to avoidance of a contract. Thus, it is applicable to interpret the declarations of both parties in the present case.

81. In other words, according to Art. 8(1) CISG, to interpret a statement, one has first to look at what was really intended by a party if this could have been known by the other party (interpretation according to real intent). Art. 8(1) CISG requires therefore also to clarify the intent of the parties insofar as it has not been objectively expressed in statement content (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 13 ad Art. 8 CISG). To determine the real intent, one has to examine the circumstances set forth in Art. 8(3) CISG, namely the negotiations between the parties, any practices which they have established between themselves, usages, and their subsequent conduct. This list is however not exclusive (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 13 ad art. 8 CISG).

82. As a second step, if the real intent of a party cannot be reasonably assessed by the other party, the statement will be given the understanding a reasonable person of the same kind as the other party would have had in the same circumstances, according to Art. 8(2) CISG (interpretation according to a reasonable understanding). Again, in determining the hypothetical understanding of a reasonable person, consideration must also be given to the circumstances named in Art. 8(3) CISG (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 21 ad Art. 8 CISG).

………

3. The delivery of goods

90. Since we consider that the contract has not been terminated by way of the occurrence of the condition subsequent, we have to examine what is the content of the contract with regard to delivery.

91. Indeed, parties do not contest that there was a valid contract concluded; however, they disagree on its exact content. We have first to interpret the various conducts to determine which contractual version is applicable (3.1.). …

3.1. The determination of the content of the contract

92. According to Art. 14(1) CISG, "[a] proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price." An offer however ends up in a contract only if it is accepted by the other party. As Art. 18(1) CISG states, "[a] statement made by or other conduct of the offeree indicating assent to an offer is an acceptance". This means that basically an acceptance cannot add something to the offer or change its content (Art. 19(1) CISG: "A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counteroffer.").

93. However, Art. 19(2) CISG mentions a partial exception to this rule in that sense that "a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance." (emphasis added). In that respect, any "[a]dditional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially" (Art. 19(3) CISG, emphasis added).

94. In the present case, the existence of a contract is not disputed as such … What is disputed is its content. The content of the contract depends upon the content of the offer, which has been accepted by the other party. Respondent considers that the contract was concluded on the basis of Claimant's offer of 19 June 2008 including, among other aspects, the following delivery terms: "Delivery: end July/beginning of August 08". Claimant's case is based however on the written contract of 23 June 2008 including, among other aspects, the following delivery terms: "Delivery: July/August 2008".

95. Preamble of the written Sales Contract … indicates that it "confirms that both contractual parties have agreed on a contract for the below mentioned goods according to the following terms and conditions" (emphasis added). It has been formalized by the Claimant on his own headed-paper and obviously sent to Respondent for signature. The document has been faxed back on 8 July 2008 at 2.31 pm. However, as it appears from the various documents and as it was indicated during the hearing, there was a real discussion between the parties on the terms of the contract. Therefore, one cannot consider this contract as a contract with non-negotiated clauses, at least certainly not in respect with the delivery clause. The regular principles of interpretation set forth in Art. 8 CISG apply; one will not therefore be able to apply the contra proferentem rule (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 49 ad Art. 8 CISG).

96. Under the CISG, there is no parol evidence rule; therefore, one cannot be barred in demonstrating that the written contract does not reflect the whole or true (oral) agreement between the parties (Schmidt-Kessel, in: Schlechtriem/Schwenzer, CISG Commentary, n. 33 ad Art. 8 CISG). In case of discrepancy between a written contract and the oral agreement, we have to interpret the subsequent behaviours, as well as the duty of the parties to act in good faith, which means to inquire in case of discrepancies between the oral agreement and the confirmation of the writing.

97. In the present case, Respondent signed the contract without any remark regarding the delivery date. However, previously it had reacted when receiving emails with inappropriate dates …. Furthermore, delivery date is usually an essential aspect in international commerce, as also expressed by Art. 19(3) CISG and as invoked by Respondent to terminate the contract. … Nevertheless, Respondent did not object to the wording and signed the document accordingly; it has previously checked the content of the contract or emails, and here had the same duty to check it. Respondent even signed it a second time on 7 July 2008 … This double signing … and the time spent to discuss the issue of unpaid amounts show the care with which parties drafted the contract. One cannot therefore consider that the previous possible oral agreement should prevail over the written version. Much more, we have to admit that at least impliedly, Respondent agreed that the written version reflected the status of the agreement. Thus, it must be admitted that the applicable terms of the contract are those contained in the written document of 23 June 2008, signed on 7 July 2008.

98. If the wording of the oral agreement had been different, there has been at least a contract modification by mutual agreement to the written wording of [the] Contract …. At no time, Respondent invoked a fundamental mistake (which would have been based on Art. 23 seq. CO). By invoking the delay in delivery, Respondent has in any event accepted the terms of the contract and could not pretend to have been in a fundamental mistake.

3.2. Interpretation of delivery time

99. Therefore, we have to interpret the meaning of the delivery time: "July/August 2008". First, if this can be established, the interpretation should be done according to the real intent of the parties. During the hearing, [Claimant's witness] confirmed that the delivery dates "July/August" were deliberately changed compared to what was in the letter of 19 June 2008, because "beginning of August could no longer be anticipated" … Parties' discussions regarding time of payment and their readiness to re-sign a contract with the exact dates is a proof of the care they took in stating time limits in a correct and realistic way. Indeed, the 23 June 2008 version of the … Contract has been modified in respect with the time for payment of the unpaid amounts and signed again in the amended version on 7 July 2008 … [The witness's] statement regarding Claimant's providers that would not make possible a delivery at beginning of August is also convincing. In the light of the conduct of the parties, we have to accept that for Claimant "August" could not mean "beginning of August", but meant really later on in August, due to the difficulty of delivery by her own producers. "August" must therefore be understood as meaning until the end of August, at the latest.

100. The modification from "beginning of August" to "August" cannot have been remained [sic] unnoticed by Respondent. Thus, Respondent must have had knowledge, or at least there is an imputable unawareness, that this modification implied necessarily a modification of the initial intent to have delivery at beginning of August at the latest. Therefore, the second requirement of Art. 8(1) CISG is fulfilled. The interpretation of the intent of the parties must lead to consider "August" as the result of the intent of the Claimant, of which the Respondent had knowledge.

101. Respondent suggests that despite the indication "August" in the final contract, it meant really "beginning of August". Furthermore, this expression has then been interpreted by Respondent's Counsel as meaning until "the first 10 days" … For [Respondent's witness], "August" meant until 12 August, as she explained during the hearing … However, she also explained to have reacted several times to the content of the contract … "since they have made several mistakes in this contract" … Therefore, Respondent cannot pretend that the change of delivery time in the written contract did not occur to him or did not have an impact of [sic] its interpretation, since parties took great care to adapt the contract regarding the time limit for payment of the outstanding amounts of other contracts. Moreover, [Respondent's witness] underlined how important time was for delivery; therefore, a change in wording for time of delivery must have been fundamental to Respondent and must have been understood as having an impact on the interpretation.

102. Thus, for the parties "July/August" could not have meant "July/beginning of August", neither "end of July/beginning of August", but really a certain time in August. Moreover, for a reasonable person placed in the same situation as Respondent, "August" could not mean "beginning of August" in a business in which time is of the essence, as has also been shown by the present dispute.

103. In conclusion, "August" means that delivery had to take place during August without specific restrictions. CISG has no specific indication on interpretation of dates, in contrary to the Swiss Code of Obligations (Art. 77 CO). According to Art. 77 CO, a period fixed by month ends with "the last day of such month" (Art. 77 para. 1, n. 3 in fine). Since Swiss law is applicable, it makes sense to consider this dispositive rule as one that could have reasonably been envisaged by parties and retain end of August as the ultimate date for delivery.'