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CISG CASE PRESENTATION

Switzerland 11 December 2000 Federal Supreme Court (Rhomberg GmbH v. Ruth & Walter Ott) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/001211s1.html]

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

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Case identification

DATE OF DECISION: 20001211 (11 December 2000)

JURISDICTION: Switzerland

TRIBUNAL: Bundesgericht [= BGer = Federal Supreme Court]

JUDGE(S): Walter (President); Rottenberg Liatowitsch, Nyffeler (Judges); Zähner (Clerk of the Court)

CASE NUMBER/DOCKET NUMBER: 4C.272/2000/rnd

CASE NAME: Rhomberg GmbH v. Ruth & Walter Ott

CASE HISTORY: 1st instance Bezirksgericht Frauenfeld 26 April 1999 [affirmed]; 2d instance Obergericht Thurgau 28 October 1999 [affirmed]

SELLER'S COUNTRY: Austria (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Fitted kitchen


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]. Applying the provisions of the CISG to the purchase of a fitted kitchen for the buyers' household, the Thurgau Court of Appeals concluded that a sales contract had not been concluded; the Supreme Court affirmed

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4 [Also relevant: Article 2 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): error or mistake]

Descriptors: Scope of Convention ; Error or mistake ; Formation of contract

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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=750&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language: Click here for original German text of case; see also CISG-online.ch database <http://www.cisg-online.ch/cisg/urteile/1319.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=750&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 197; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 136

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Swiss Federal Supreme Court (Schweizerisches Bundesgericht)

11 December 2000 [4C.272/2000/rnd]

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

COURT COMPOSITION. Federal judges Walter (President), Rottenberg Liatowitsch, Nyffeler and Zähner (Clerk of the court).

PARTIES: COUNSEL. In the matter of Plaintiff-Appellant Rhomberg GmbH & Co. KG, Schulgasse 22, 6850 Dornbirn, Austria, [seller], represented by attorney Dr. Markus Züst, Bahnhofstrasse 14, Postal Box 849, 9430 St. Margrethen, Switzerland, versus Defendant-Respondent 1. Ruth Ott, Reutenenstrasse 30, 8500 Frauenfeld, Switzerland; and Defendant-Respondent 2. Walter Ott, Reutenenstrasse 30, 8500 Frauenfeld, Switzerland, [buyers], both represented by attorney Richard Weber, Bahnhofstrasse 7, 8570 Weinfelden, Switzerland, regarding a sales contract under the CISG.

[Background information and facts of the case]

A. In the year 1997, the married couple Ruth and Walter Ott, the [buyers], were interested in a fitted kitchen of the brand "Strato" and consulted the [seller], a kitchen manufacturing company. Even though the [seller] realized that the [buyers] were only interested in a "Strato" kitchen, the [seller] delivered on 14 July 1997 one of [seller]'s own fitted kitchens. On 5 August 1997, the [buyers] became aware of the fact that the kitchen installed by the [seller] was not the brand "Strato." On 13 August 1997, the [buyers] asked the [seller] to remove and take back the fitted kitchen against reimbursement of the deposit in the amount of sA [Austrian schillings] 150,000.00 (Sf [Swiss francs] 4,283.00). The [seller] objected to this.

[Case history and position of the parties]

B. On 22 December 1997, the [seller] filed a claim against the [buyers] at the District Court of Frauenfeld [Court of First Instance], requesting payment of the remaining purchase price in the amount of Sf 44,458.00 plus interest. In its decision of 26 April 1999, the Court of First Instance dismissed the [seller]'s claim. The High Court of the Canton of Thurgau [Court of Second Instance] dismissed the [seller]'s appeal against that decision of the [Court of First Instance] on 28 October 1999.

C. The [seller] raises an appeal against the decision of the Thurgau [Court of Second Instance] to the Supreme Court. [Seller] requests that its claim be granted; in the alternative, [seller] requests that the case be referred back to the Court of Previous Instance for a new assessment.

The [buyers] request that the appeal be dismissed.

The Supreme Court considers:

1. a) The [Court of Second Instance] held that the dispute concerns an international sales contract, because the parties have their places of business in different Contracting States. The formation of the contract is governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), which has been ratified by both Austria and Switzerland. A possible contesting of the [buyers'] declared intent is to be determined in conformity with the law applicable according to the Hague Convention on the Law Applicable to International Sale of Goods, 1955.

According to Art. 3 of the Hague Convention, the contestation of a statement of intent is governed by the domestic law of the country where the seller has its place of business at the time of the receipt of the order. [Art. 3: "In default of a law declared applicable by the parties [], a sale shall be governed by the domestic law of the country in which the vendor has its habitual residence at the time when it receives the order."]

By applying the relevant provisions of the CISG, the [Court of Second Instance] reached the conclusion that a sales contract had not been formed regarding the delivered fitted kitchen. The [Court of Second Instance] held that the parties were in disagreement and that the [seller]'s claim was, therefore, unjustified. Furthermore, even if the contract had been validly concluded, it was non-binding for the [buyers], under the provisions of 871 ABGB [*] that would apply in that case. This is so because the [seller] either gave rise to or noted the [buyers'] erroneous belief that they would acquire a "Strato" kitchen. In addition, the [buyers] immediately declared that they would not hold to the contract once they realized their mistake. The [Court of Second Instance] further held that the [buyers'] conduct after the conclusion of the contract, in particular the fact that they used the fitted kitchen, cannot be taken as an assent in view of the fact that the [seller] had refused to take back the kitchen.

[...]

     b) The [seller] further relies on Art. 43a(1)(a) OG [*] to object to the fact that the [Court of Second Instance] dealt with the matter of mistake and good faith without naming the applicable provisions of the AGBG [*]. This objection cannot succeed. The [Court of Second Instance] held as its primary finding -- based on the CISG -- that the contract on which the [seller] bases its claim has not been concluded between the parties. The [seller] does not contest the decision in that regard. The alternative reasoning for the decision of the [Court of Second Instance], however, is of importance only if a contract has been concluded between the parties. Therefore, the decision of the [Court of Second Instance] would have to be upheld even if the [seller]'s objections -- all of which are solely directed against the alternative reasoning -- were justified. The Supreme Court, consequently, may neglect the [seller]'s submissions due to the lack of a legitimate interest in legal protection (cf. BGE [*] 117 III 630 E. 1b, p. 631; BGE 111 II 397 E. 2b, p. 397 et. seq.; BGE 111 II 398 E. 2b, p. 399). Apart from that, in appellate proceedings regarding property affairs, the Supreme Court is not entitled to examine whether the Court of Previous Instance was right in its application of a foreign law, which it correctly determined under the IPRG [*].

[The Supreme Court's order]

The appeal is dismissed. The [seller] bears the court fees in the amount of Sf 2,000.00 and is ordered to reimburse the [buyers] for the cost of the appellate proceedings in the amount of Sf 3,000.00


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant of Austria is referred to as [seller]; the two Defendants-Respondents of Switzerland are jointly referred to as [buyers]. Also, monetary amounts in Swiss francs are indicated by [Sf] and amounts in Austrian schillings are indicated by [sA].

Translator's note on other abbreviations: AGBG = Allgemeines Bürgerliches Gesetzbuch [Austrian Civil Code]; BGE = Entscheidungen des Bundesgerichts [Official Case Reporter on Decisions by the Supreme Court]; IPRG = Bundesgesetz über das Internationale Privatrecht [Swiss Code on the Conflict of Laws]; 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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