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CISG CASE PRESENTATION

Switzerland 17 October 2000 Federal Supreme Court (Severin Wagner AG v. Günter Lieber) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/001017s1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20001017 (17 October 2000)

JURISDICTION: Switzerland

TRIBUNAL: Bundesgericht [= BGer = Federal Supreme Court]

JUDGE(S): Walter (President); Klett, Nyffeler (Judges); Lanz (Clerk of the Court)

CASE NUMBER/DOCKET NUMBER: 4C.422/1999/rnd

CASE NAME: Severin Wagner AG v. Günter Lieber

CASE HISTORY: 1st instance Bezirksgericht Bülach [affirmed]; 2d instance Obergericht Zürich 1 October 1999 [affirmed]; 3d instance Kassationsgericht des Kantons Zürich 23 June 2000

SELLER'S COUNTRY: Switzerland (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Metal locker cabinets


Classification of issues present

APPLICATION OF CISG: Unresolved [Court held application of CISG could not influence outcome as acknowledgement of debt excluded from Convention]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4 [Also perhaps relevant: Article 3(2) - sale of services vs. goods an issue raised but not resolved]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): acknowledgement of debt]

Descriptors: Scope of Convention ; Services

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=795&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): Click here to jump to a re-publication of the original text of this case as presented on the Internet website of the Schweizerisches Bundesgerichts; see also CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1053.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=795&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Swiss Federal Supreme Court (Schweizerisches Bundesgericht)

17 October 2000 [4C.422/1999/rnd]

Translation [*] by Ruth M. Janal [**]

COURT COMPOSITION. Federal judges Walter (President), Klett, Nyffeler and Lanz (clerk of the Court),

PARTIES: COUNSEL. In the matter of Defendant-Appellant Günter Lieber, Von-Reuschenberg-Strasse 7, 52457 Aldenhoven, Germany, [buyer], represented by attorney Raphaëlle Favre, Seestrasse 131, 8027 Zürich, Switzerland, versus Plaintiff-Respondent Severin Wagner AG, Ziegelhofstrasse, 8730 Uznach, Switzerland, [seller], represented by attorney Hugo Waibel-Knaus, Zentrum Frohsinn, Zürcherstrasse 25, Postal Box 431, 8730 Uznach, Switzerland, regarding the acknowledgement of a debt.

[Background information and facts of the case]

A. [Buyer] is the owner of a company in Aldenhofen, Germany, which is active in industrial automation and locker systems. [Buyer] was commissioned by its customer, the Flughafen Immoblien Gesellschaft [Airport Real Estate Company] to install a locker system at Zürich airport. As [buyer] itself does not manufacture metal lockers, it ordered 63 locker cabinets of different sizes, including equipment, from the [seller] on 11 August 1995. The order was for the total amount of Sf [Swiss francs] 63,454.00 - the lockers were to be produced according to the [buyer]'s drawings.

Even though the relationship between the parties proved to be difficult, the [seller] manufactured and delivered the lockers. On 21 December 1995, [seller] supplied the [buyer] with an account statement which, on the one hand, included the amount stated in the order of 11 August 1995 and, on the other hand, referred to "additions from 5 October 1995", "additional work" and "installation work", for which [seller] invoiced the [buyer] for a further Sf 29,591.00. Of the total amount of Sf 93,045.00, the [seller] requested payment of Sf 80,000.00 by 20 January 1996. The [buyer] rejected this request for payment, upon which the [seller] clarified with letter of 23 January 1996 that [seller] had not sent an invoice; rather, [seller] had requested payment of an account for services rendered until 21 December 1995. Even though certain additional work still had to be performed, the account payment had been due on 20 January 1996 and [seller] expected the first payment of Sf 50,000.00 at minimum, on 30 January 1996.

On 9 July 1996 the [buyer] sent to the [seller] a fax dated on the previous day, which had the headline "Cancellation of our cooperation". [Buyer] declared that it terminated the cooperation with the [seller] and demanded damages in the amount of Sf 150,000.00. [Buyer] wrote exactly:

"After subtraction of your invoice 40002092, in the total amount of Sf 93,045.00, an amount of Sf 56,955.00 remains to be paid."

With this, the [buyer] referred to the [seller]'s account statement of 21 December 1995, in which an intermediate amount of Sf 93,045.00 had been calculated for the [seller]'s performance rendered at that point in time. In its letter of 20 August 1996, the [seller] noted that "we consider the order for Airport Real Estate Company as closed". [Seller] attached three final invoices over a total of Sf 136,845.90.

[Case history and position of the parties]

B. [Following the [buyer]'s refusal to pay the price, on 22 October 1996 the [seller] filed an action against the [buyer] demanding payment of Sf 136,845.90. The [buyer] filed a counterclaim in the amount of Sf 100,648.30. The District Court of Bülach [Court of First Instance] and the High Court of Zurich [Appellate Court] granted the [seller]'s claim in the amount of Sf 83,214.00]

C. The [buyer] appeals the decision of the Appellate Court of 1 October 1999. [Buyer] requests the Supreme Court to reverse the appealed decision and to dismiss the [seller]'s claim. In the alternative, [buyer] requests that the matter be referred back to Appellate Court for a new decision. The [seller] requests that the [buyer]'s appeal be dismissed.

The Supreme Court considers:

1. It is no longer disputed between the parties that Swiss law applies to the case (for the application of the CISG, see below, 4. c)). While the Court of First Instance examined the [seller]'s demands in detail and granted its claim in the amount of Sf 83,214.00, the Appellate Court held that the [buyer]'s letter of 8 July 1996 constituted an acknowledgement of a debt in the amount of Sf 93,045.00.

[]

[The Court explains that the various objections raised by the [buyer] against the decision of the Appellate Court are either without merit or concern the law of the Canton and cannot be examined by the Supreme Court.]

4. c) [Buyer] submits that the Appellate Court violated federal law when it held - relying on general life experience - that the preponderant part of the [seller]'s obligations consisted in the supply of labor or other services and, thus, concluded that the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not govern the contract between the parties. However, the [buyer] was too late in introducing its factual submissions to the contrary in the proceedings before the courts of the Canton. Apart from that, [buyer] does not explain how the application of the CISG could possibly influence the outcome of the present case. As the CISG undisputedly does not contain any provisions regarding the acknowledgment of a debt, such an influence is furthermore not apparent. In view of these facts, it does not need to be decided whether the CISG applies to the contract of manufacture between the parties.

[The Supreme Court's order]

5. The [buyer]'s objections are therefore unfounded and the appeal is dismissed. The [buyer] bears the cost of the proceedings and [buyer] must reimburse the [seller] for its costs (under Art. 156(2) OG [*]).

[]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Respondent of Switzerland is referred to as [seller]; the Defendant-Appellant of Germany is referred to as [buyer]. Also, monetary amounts in Swiss francs are indicated by [Sf].

Translator's note on other abbreviations: OG = Bundesgesetz über die Organisation der Bundesrechtspflege [Swiss Federal Code on Court Organization]

** Ruth M. Janal, LL.M. (UNSW) is a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg. The second-iteration redaction of this translation was by Dr. John Felemegas.

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Pace Law School Institute of International Commercial Law - Last updated December 6, 2006
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