## Facts

- A French software developer and rights holder offered a standard computer program (“Graphiplus”) to a German business customer.
- The buyer tested the software on a trial basis beginning in late 1992 and provided a bank guarantee in connection with the trial use.
- On Feb. 26, 1993, the buyer placed a written order for “Graphiplus 5.1” in a network version for five additional workstations for a total price of DM 31,500.
- The software was installed on the buyer’s premises on Apr. 28, 1993, and the seller invoiced the purchase price.
- The parties intended to negotiate a second agreement setting out more detailed terms for use/licensing, but those negotiations failed.
- The buyer refused to pay, asserted that no binding sales contract existed, and alternatively alleged defects justifying avoidance; the buyer also returned the program.
- The seller sued for the purchase price (DM 31,500) plus 5% interest.

## Issues

1. Whether the CISG applied to an international transaction involving standard computer software supplied for a single monetary price.
2. Whether a binding sales contract was formed based on the written order and performance despite the parties’ plan to negotiate a later, more detailed usage agreement.
3. Whether the software was non-conforming where the order was placed by reference to a sample or trial version.
4. Whether the buyer lost the right to rely on alleged non-conformity by failing to give timely and sufficiently specific notice under CISG Article 39.

## Decision

- The court held the CISG applied because the parties were in different Contracting States and the transaction was a sale of standard software for a single price.
- The court found a valid sales contract was concluded because the parties agreed on the essential terms (goods and price) and the seller delivered/installed the software.
- The court rejected the buyer’s avoidance defense, finding the software conformed to the sample/trial version and, in any event, the buyer failed to give effective notice of non-conformity within a reasonable time.
- The court ordered the buyer to pay DM 31,500 plus 5% interest.

## Legal Principles

- A cross-border sale of standard (non-bespoke) software for a single compensation can constitute a “sale of goods” governed by CISG Article 1(1).
- Under CISG Article 14, an offer is sufficiently definite if it identifies the goods and fixes or provides a method to determine price; a contract may be concluded through acceptance and performance under Articles 18 and 23 even if further terms are contemplated later.
- Under CISG Article 35(2)(c), conformity may be measured against qualities held out by sample or model, including a program version previously provided for testing.
- Under CISG Article 39, the buyer must notify the seller of non-conformity within a reasonable time and specify its nature; requests for assistance or general complaints may not satisfy the notice requirement, and failure bars reliance on lack of conformity as a remedy basis.
- Interest on sums in arrears is recoverable under CISG Article 78, with the applicable rate determined by the forum’s supplementary rules where necessary.

## Conclusion

The court applied the CISG to a standard software transaction, held that the written order and subsequent delivery/installation created a binding sales contract despite failed negotiations over later usage terms, and awarded the price and interest because the buyer could not establish a timely, specific non-conformity notice and therefore could not rely on alleged defects to avoid payment.


French Software Seller v. German Buyer, 8 HKO 24667/93 (Landgericht München I Feb. 8, 1995)