Data
- Date:
- 19-02-2026
- Country:
- France
- Number:
- 2025003100
- Court:
- Tribunal de Commerce de Orléans
- Parties:
- Orgapharm S.A.S. v. Midas Pharma GmbH
Keywords
SELLER'S CLAIM FOR PAYMENT OF PRICE (ART. 62 CISG) - NO JUSTIFIED IF DELIVERY HAS NOT BEEN EFFECTED AND NO CONTRACTUAL TERM ALLOWS PAYMENT INDEPENDENTLY OF DELIVERY
Abstract
[Abstract prepared by dott. Mira Ghazzoul, University of Rome Tor Vergata]
In October 2021, a German buyer solicited an offer from a French seller for the supply of a chemical product intended for a third-party customer. Following negotiations, the buyer placed an initial order, which the seller confirmed in November 2021. Further discussions subsequently took place, leading to proposed amendments and an increase in quantities. As a result, on 9 March 2022 the buyer submitted two orders: one corresponding to the initial order and a second constituting a new order. On the same day, and before the seller had confirmed the second order, the buyer informed the seller that its customer had cancelled its orders and requested the termination of all related operations.
Despite the absence of delivery, the seller issued an invoice for the first order and later sought payment of the price together with damages relating to both orders. After negotiations proved unsuccessful, the seller initiated proceedings against the buyer, seeking payment of the price for the first order and damages in relation to the second. The buyer contested the claims, arguing that the orders had been withdrawn prior to acceptance and that no valid contract had been concluded in respect of the second order. It further challenged both the existence and the amount of the alleged losses.
With regard to the applicable law, the Court held that CISG governed the dispute, since both parties were established in Contracting States (Art. 1(1)(a) and had not excluded its application (Art. 6). The Court further addressed the issue of the parties’ general terms and conditions, finding that neither party had demonstrated that its terms had been effectively incorporated into the contractual agreement.
The Court then examined the formation and effects of the alleged contracts under the Convention. With respect to the first order, it found that a contract had been validly concluded following the seller’s confirmation, in accordance with Arts. 14 and 18 CISG. However, referring to Arts. 30, 53, and 62 CISG, the Court observed that the buyer’s obligation to pay the price is the counterpart of the seller’s obligation to deliver the goods. In the absence of delivery, and in the absence of any contractual provision allowing payment independently thereof, the seller was not entitled to claim payment of the price.
With regard to the second order, the Court held that no contract had been formed. The seller had made its acceptance conditional upon agreement on payment terms, which had not been reached. Accordingly, under Arts. 14 and 18 CISG, the buyer’s order did not give rise to a binding contract.
Finally, the Court examined the seller’s claim for damages under Art. 74 CISG. It held that damages require proof of a loss that is certain and directly caused by a breach of contract. The Court found that the seller had failed to establish both the existence and the amount of its alleged losses, in particular with respect to raw materials and production costs. In any event, no damages could be awarded in relation to the second order, given the absence of a contract.
The Court therefore dismissed all the seller’s claims, concluding that the conditions for recovery of the price and for damages under the Convention were not satisfied.
Fulltext
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Source
Original in French:
- available at www.cisg-online.ch}}