Facts
In July 1984, X AG offered an aircraft for sale. Z Inc., domiciled in the USA, was interested and contacted X AG through its advisor P. After inspecting the aircraft, P. submitted a purchase offer on July 16, 1984, which was not accepted. On July 31, 1984, Z Inc. transmitted a purchase offer of USD 1,220,000 with various conditions via Telex No. 2360. This was followed by a telephone conversation between P. and B. of X AG, in which the purchase price was increased to USD 1,250,000. With Telex No. 1850 dated July 31, X AG confirmed the acceptance of the offer and requested Z Inc. to transfer the down payment of USD 50,000. Z Inc. then confirmed the conclusion of the contract. However, X AG communicated with Telex No. 1854 dated July 31 that Telex No. 1850 was based on a misunderstanding and that the aircraft had already been sold to another party.
Considerations
The Federal Supreme Court decided that despite the reservation of a written contract, a valid contract had been concluded through the exchange of telex messages and the telephone conversation. The exchange of matching telex declarations confirming the result of telephone contract negotiations does not fulfill the requirements of Art. 13 CO, but has an evidentiary function similar to that of a written contract.
The Federal Supreme Court stated that it is in line with the customs of international business transactions for the parties to intend to enter into a contractual obligation by exchanging telex messages with matching content, even if they subsequently…