## Facts

- Romay AG, a Swiss manufacturer, produced polyurethane crankcases used in truck air-conditioning units.
- SARL Behr France, a French manufacturer of air-conditioning units, sourced components for products sold to a truck manufacturer (Behr’s client).
- The parties entered an eight-year written “collaboration agreement” under which Romay would supply crankcases to Behr.
- The agreement specified the crankcases with precision and fixed a price-calculation method for the intended term.
- The agreement contemplated delivery of at least 20,000 crankcases over the contract duration, plus additional quantities corresponding to the needs generated by Behr’s client’s demand.
- The agreement did not contain an express clause stating that Behr was obligated to purchase (or pay for) a fixed total or maximum number of crankcases.
- Over roughly two years of performance, Romay delivered 8,495 crankcases.
- Behr’s relationship with the truck manufacturer deteriorated, and Behr refused to continue taking deliveries from Romay.
- Romay relied on the CISG and sued Behr for damages caused by Behr’s refusal to continue performance.
- The trial court concluded that the agreement was not a CISG sales contract because the arrangement was open-ended as to a maximum quantity and dismissed Romay’s CISG-based claim.
- Romay appealed to the Court of Appeal in Colmar.

## Issues

1. Did the parties’ “collaboration agreement” qualify as a contract of sale governed by the CISG even though it did not expressly state a maximum quantity or an explicit promise by Behr to buy?
2. If the CISG governed, could Behr’s refusal to continue taking deliveries be treated as a breach triggering CISG damages, or was Behr excused because the breakdown with its customer and resulting commercial pressure prevented continued performance?

## Decision

- The appellate court reversed the trial court’s approach and characterized the agreement, despite its label, as a sales contract within the CISG’s scope.
- The court held that the decisive inquiry was the agreement’s actual content: whether the parties assumed seller and buyer obligations as contemplated by CISG Articles 30 and 53.
- The court emphasized that the goods were specifically described, the method for determining price was fixed for the contract term, and a minimum quantity of 20,000 units was stipulated—features consistent with a sales contract.
- Although the contract did not expressly state a purchase obligation, the court inferred Behr’s duty to buy from the overall economic structure of the agreement, including provisions linked to inventory/stock arrangements and the correlation between Romay’s delivery commitment and Behr’s expected purchasing activity.
- The court treated Behr’s refusal to continue performance as a breach giving rise to damages under the CISG, with damages assessed under Article 74 and subject to the limitation for reasonable loss-avoidance measures under Article 77.
- The court rejected Behr’s attempt to avoid responsibility based on adverse market conditions and customer-driven price pressure, finding no basis for exemption under CISG Article 79 on the record presented.

## Legal Principles

- Whether the CISG applies depends on the substance of the parties’ obligations—seller and buyer duties under CISG Articles 30 and 53—rather than the contract’s title (e.g., “collaboration” or “framework” agreement).
- A supply arrangement may fall within CISG Article 1(1)(a) when the parties are in different Contracting States and the agreement is, in effect, an international sale of goods contract.
- A buyer’s obligation to purchase may be implied where the contract sets a defined product, a workable price mechanism, and at least a minimum quantity, and where the agreement’s structure links the seller’s delivery obligation to expected purchases by the buyer.
- A refusal to continue taking deliveries under a CISG-governed sales contract can constitute a breach giving rise to damages, including foreseeable loss and lost profit, under CISG Article 74.
- The aggrieved party’s recovery may be reduced to the extent it did not take reasonable steps to limit loss, under CISG Article 77.
- Commercial difficulties such as market decline or downstream customer price demands generally remain business risk and do not, without proof of a qualifying impediment, excuse nonperformance under CISG Article 79.

## Conclusion

In Romay AG v. SARL Behr France (UNCITRAL CLOUT Case 480), the appellate court treated the parties’ eight-year “collaboration” supply arrangement as a CISG-governed sales contract based on its operative terms (defined goods, price mechanism, and minimum quantity), inferred an obligation for the buyer to purchase despite the absence of an express purchase clause, and held that the buyer’s refusal to continue taking deliveries could support CISG damages subject to mitigation and without an Article 79 exemption based on market and customer pressure.


Romay AG v. SARL Behr France, UNCITRAL CLOUT Case 480 (1992)