Germany 31 January 2001 District Court Hamburg (Frozen pork and apple blinies case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010131g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 411 O 11/00
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Denmark (plaintiff is seller's assignee)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Frozen blinies with pork/apple filling
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
8A [Interpretation of party's statement or other conduct: intent of party making statement or engaging in conduct]; 9C [Practices established by the parties]; 35A ; 35B [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law]; 39A Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
8A [Interpretation of party's statement or other conduct: intent of party making statement or engaging in conduct];
9C [Practices established by the parties];
35A ; 35B [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law];
39A Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): cisg-online.ch website <http://www.cisg-online.ch/cisg/urteile/876.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English:  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 24Go to Case Table of Contents
Queen Mary Case Translation Programme
31 January 2001 [411 O 11/00]
Translation [*] by Jan Henning Berg [**]
Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor [***]
[Plaintiff] sues Defendant [Buyer] for payment of the purchase price for delivery of frozen blinies, following rights that were subrogated from [Seller].
Based on an offer of [Seller] dated 21 June 1999, [Buyer] ordered four tons of so-called "blinies" with pork and apple filling, packaged as eight pieces per bag, twenty bags per cardboard box, eighty cardboard boxes per pallet, on 23 June 1999. Following the confirmed offer, it had been agreed in regard to packaging that the blinies would be shipped: "in neutral polyethylene bags, with labels on the cardboard boxes, which contain information on ingredients as well as preparation."
The blinies were delivered by [Seller] to [Buyer] on 10 August 1999. The goods -- which had been apportioned in accordance with the order -- were packaged in unprinted (except for date of expiry), non-transparent white or blue polyethylene bags.
On 12 August 1999 [Plaintiff] -- by order of [Seller] -- requested payment for the delivery in the amount of gross [DM] 68,054.05.
By letter dated 18 August 1999, [Buyer] complained about the packaging in white bags. [Buyer] stated that the goods had not been visible, meaning that they had been essentially unmarketable. [Buyer] had acted on the assumption that the goods would be packaged in transparent bags, corresponding to previous deliveries dedicated for the "Kieler Woche". The parties therefore had to consider jointly how the problem could be solved. A return and re-packing was seen as too expensive and inadvisable due to the expiry date of the goods. A cheaper possibility was a subsequent labeling at the current storage location in Berlin.
By further letter dated 20 August 1999, [Buyer] informed [Seller] of the possibilities to achieve a marketable packaging. [Seller] was advised to check to what extent it would be willing to pay for part of the costs.
In its letter of 26 August 1999, [Seller] claimed to have delivered the goods in neutral bags, thus having effected performance in conformity with the contract. Nonetheless, [Seller] made proposals as to a possible labeling. [Seller] offered a participation in the costs by curtailing the invoice sum of the next order by DM 1,000.
The goods (1,033 cardboard boxes) remained at the [Buyer]'s for the time being. Until June 2000, [Buyer] has resold 194 cardboard boxes and has held 839 cardboard boxes still in stock.
On 9 November 1999, [Buyer] paid [Plaintiff] DM 3,054 on the invoice mentioned above.
After having received a reminder dated 10 November 1999, [Buyer] paid another sum of DM 5,000 in November 1999.
By letter dated 15 December 1999, [Plaintiff] reminded against [Buyer] the residual claim of DM 60,000 plus interest since 3 October 1999 in an amount of DM 2,054.36.
Further payments have not been received.
In the meantime, the goods lost their marketability as the expiry date was met by July 2000.
[Seller] has assigned its residual claim for the purchase price to [Plaintiff] (henceforth referred to as [Seller's assignee]).
POSITION OF THE PARTIES
Position of [Seller's assignee]
[Seller's assignee] submits that the goods were delivered in "neutral" packaging which conformed to the contract. The defense of wrong packaging as raised by [Buyer] was therefore unfounded. Furthermore, the notice of non-conformity was given too late.
[Seller's assignee] requests the Court to order [Buyer] to pay [Seller's assignee] the sum of DM 62,054.63 plus 13 % interest since 1 January 2000.
Position of [Buyer]
[Buyer] requests dismissal of the action.
A residual claim for the purchase price did not exist because the goods were delivered in packaging which was unusual to the trade, rendering them unmarketable. Concerning the frozen product in dispute, it was usual to have them packaged in transparent bags or foil whenever non-transparent packaging with graphic printing was not to be used. [Buyer] deliberately refrained from demanding an expensive packaging. [Buyer] had intended to sell the goods to Russian retailers who would resell them at low prices. Accordingly, [Seller] was supposed to produce the bags without a secondary packaging; [Buyer] would simply apply label stickers similar to those presented in exhibit B6. When awarding the order, [Buyer] had assumed that transparent bags would be used, corresponding to a previous test delivery dedicated for the "Kieler Woche". This in itself constituted a breach of contract under Art. 35(2)(c) CISG. The blue and white bags delivered by [Seller] gave consumers the impression that the goods would serve sanitary purposes. The conformity of the goods did not already follow from the requirement of "neutral" bags. "Neutral" merely meant that any reference to the manufacturer should be omitted. The preponderant part of the goods were still unmarketable. Therefore, the purchase price was reduced to zero.
Concerning further details of the parties' submissions, the Court refers to the letters exchanged and their exhibits.
The Court has taken evidence by expert opinion according to resolution of 17 May 2000. For the results of the taking of evidence, the Court refers to the expert opinion of Dr. K. of 12 September 2000 as well as its amendment of 20 November 2000.
REASONING OF THE COURT
The action is justified on the merits. [Seller's assignee] is entitled to have [Buyer] pay the residual purchase price of DM 60,000 under Art. 53 CISG. The claim follows rights subrogated from [Seller] from the invoice dated 12 August 1999 concerning frozen blinies which were undisputedly delivered on 10 August 1999.
[Seller's assignee]'s claim -- in the partial amount of DM 4,996.58 and by crediting against the payments effected by [Buyer] -- exists because [Buyer] had undisputedly resold at least 194 cardboard boxes of the goods (cf. memorandum of 5 January 2001, p. 2). [Buyer] thus had finally accepted the delivery and also impliedly accepted the goods to that extent. This results in the following claim:
|72 cardboard boxes apple blinies = 1440 bags, each at net DM 2.736||= net DM 3,939.84|
|122 cardboard boxes pork meat blinies = 2440 bags, each net DM 3.384||= net DM 8,256.98|
|Total||net DM 12,196.80|
|7 % VAT||DM 853.78|
|Total||gross DM 13,050.58|
|Effected payments subtracted||- DM 8,054,--|
|Residual claim in favor of [Seller's assignee]||DM 4,996.58|
[Seller's assignee] is also entitled to the remaining purchase price. It is true that [Buyer] has given notice of non-conformity within the time required by Art. 39(1) CISG as it only requires a notice "within reasonable time". Giving consideration to the type of goods (deep frozen, durable foodstuffs), it appears that the notice issued by fax dated 18 August 1999 (eight days after delivery) was given within a reasonable time (cf. Schlechtriem, CISG, 3rd ed. 2000, Art. 39 para. 17).
However, the notice of non-conformity was not justified according to Art. 35 CISG; it could not be established that the seller had delivered goods which were not packaged in the manner required by the contract (Art. 35(1) CISG). According to the contract's content, which had been undisputedly concluded with the content of the offer dated 21 June 1999, [Seller] was obligated to deliver in "neutral polyethylene bags". According to [Buyer]'s understanding -- which was insofar not challenged by [Seller's assignee] -- this merely meant that manufacturer information should not be printed onto the bags. It is undisputed that the bags fulfilled this requirement. [Buyer] did not expressly make any further demands as to the packaging. In particular, [Buyer] included neither orally nor in writing any clause into the contract which would have provided for a delivery in transparent bags as had been the case during a previous delivery for the "Kieler Woche". [Buyer] has failed to substantiate that the parties had agreed on a pre-sale "by sample" in terms of Art. 35(2)(c) CISG (cf. Schlechtriem, Art. 35 para. 27). Furthermore, it was not self-explanatory that [Buyer] intended to purchase the goods in transparent packaging in order to achieve the visibility of the product for the final consumer. Undisputedly, the "neutral" packaging should be as cheap as possible; it should also be prepared for sale by virtue of [Buyer]'s label stickers. It was recognizably not an obligation of [Seller] to deliver the goods in a way that they were already prepared for sale. Therefore, it could not be established that the packaging of the delivered goods deviated from what was owed under the contract.
Likewise, by way of the taking of evidence and with due consideration to the contractual agreement, it could not be established that the packaging prepared by [Seller] had been unusual in the trade. The expert opinion of Dr. K. showed, first, that it is generally usual to market frozen products packaged in non-transparent bags or foil, although they would then be printed with colored product illustrations (expert opinion of 12 September 2000, p. 4). However, [Seller] was not contractually obliged to tag the bags with images. According to the offer, it was expressly stipulated that printed bags should be used only for possible future deliveries, these being requested only in case that [Buyer] would have successfully entered the market with its new product "blinies". In his amended report of 20 November 2000, the expert pointed to the fact that frozen pastry products were offered in retail stores only in untransparent, color-printed boards. This means that it is unusual to distribute filled pastry products in non-transparent, blue or white packaging. It must be concluded that both the packaging delivered by [Seller] (non-transparent colored bags) and the packaging demanded by [Buyer] (transparent bags) are unusual in the trade. In other words, [Seller] had not been obliged to deliver a usual packaging in either alternative. The expert properly stated that only a delivery in color-printed cardboard boxes would have constituted a packaging usual in the trade and in relation to the final customer. [Seller] was neither obliged nor entitled to effect delivery in color-printed cardboard boxes under the abovementioned contract content. [Buyer] alone was the one in charge to render the ordered products marketable. It is remarkable that [Buyer] has not taken any measures in order to do so. Concerning the contractual relations towards [Seller's assignee], however, it is irrelevant why [Buyer] paradoxically refrained from achieving marketability by application of labels and, instead, let the goods perish.
The interest claim of [Seller's assignee] is based on § 286 BGB [*] in conjunction with the parties' agreement during the session of 22 March 2000 and values at DM 1,200.
The decision on costs and expenses is based on § 92(2) ZPO [*].
The decision on provisional enforcement is based on § 709 ZPO.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff is referred to as [either Plaintiff or Seller's assignee] and Defendant of Germany is referred to as [Buyer]. The Danish seller is referred to as [Seller]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].
** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück.
*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.Go to Case Table of Contents