Case text (English translation)
Queen Mary Case Translation Programme
Oberlandesgericht Saarbrücken 14 February 2001
Translation [*] by Ruth M. Janal [**]
Translation edited by Camilla Baasch Andersen [***]
FACTS OF THE CASE
The [seller], an Italian corporation, is a manufacturer of doors and windows. The
[buyer] is a wholesale and retail trader and installer of windows, doors and winter
gardens. The [seller] is bringing an action against the [buyer] for the payment of the
remaining purchase price for windows and doors.
The Court of First Instance partly allowed the claim with respect to an amount of
6,141.71 DM [Deutsche Mark] of the requested DM 25,551.55. With its appeal,
[seller] demands payment of a further DM 19,897.21. [Buyer] has lodged an appeal
asking the Court to dismiss the entire claim.
REASONING OF THE COURT
While both the [seller]'s and the [buyer]'s appeals are admissible in form, the appeals
are unjustified. The Court finds no fault in the decision handed down by the Court of
First Instance.
A. The [seller]'s appeal is unfounded.
I. 1. The [seller]'s complaint that the Court of First Instance should not have
subtracted a discount of 10%, but only a discount of 7% with respect to invoices I.1.a)
and II.2. is unjustified. The Court correctly used a discount of 10%, thereby reducing the
claim by DM 90.07 and DM 335.28.
a) The invoices in question concern the building project "Gergen". The discount
of 10% is a "project discount" resulting from the [buyer]'s "project order" of 31 July 1995.
This "project order" was confirmed by the [seller] by its letter of 9 January 1996 with a
discount of 10%. The parties therefore formed a valid agreement on the discount.
b) Witness Börner furthermore testified that a general agreement had been
concluded with the [seller]'s employee Mayr on a discount of 10% on all orders,
indiscriminate of the time of the performance. The [buyer] was therefore correct in
reducing the price.
2. With respect to invoices I.1.b), 5., II.2., 7., 8., 9., 10.a), 11. and 12. (all of which
concern the building project "Caritas Clinic Saarbrücken"), the [buyer] was entitled to
a discount of 14% (12% + 2%) instead of 12%.
a) The special discount of 14% (12% + 2% ) was noted in letters of confirmation
sent by the [buyer] to the [seller] on 7 March 1996 and 8 May 1996. The [seller] did not
voice any objection to these letters.
b) It is an accepted trade usage that a tradesperson who receives a letter of
confirmation has to object to the letter's content if the recipient does not wish to be bound by it. If the recipient does not object, the contract is binding with the content given to it in the letter of
confirmation, unless the sender of the letter has either intentionally given an incorrect
account of the negotiations, or the content of the letter deviates so far from the result of
the negotiations that the sender could not reasonably assume the recipient's consent. The
recipient's silence causes the contract to be modified or supplemented in accordance with
the letter of confirmation. In the event that a contract had not yet been concluded, it is
formed with the content of the confirmation (Palandt/Heinrichs, BGB [Bürgerliches
Gesetzbuch, German Civil Code] § 148 n. 8). As there is no indication that the [buyer]
intentionally reported the results of the negotiations incorrectly or that it deviated from
the content of the agreement, the [seller]'s silence resulted in the agreement of a special
discount in the amount of 14%. This additional discount is irrespective of the volume of
the order.
II. [Seller]'s appeal is also without success as regards the other deductions made by
the Court of First Instance.
1. With respect to the invoice II.1. concerning DM 4,918.79, the [seller]
undisputedly credited the [buyer] an amount of DM 2,215.16. The Court of First Instance
was therefore correct in reducing this claim to DM 2,703.63. In its appeal, the [seller] is
requesting "the difference of DM 2,703.63". This is incorrect because it was in fact
awarded the amount of DM 2,703.63. Obviously, [seller] refers to the credit in the amount of
DM 2,215.16. However, since set-off takes precedence over the defense in § 320 BGB
[Bürgerliches Gesetzbuch, German Civil Code] (Medicus, Schuldrecht AT, 12th ed., n.
214 and 264), the latter is not available to [seller].
2. The claim for payment of DM 1,785.00, based on invoice II.4. is also unfounded.
According to the credible testimony given by witness Börner, an identical order was
placed twice with the [seller], because the [seller]'s employee by the name of Tetter had
informed the [buyer] that the first order had been lost. The [seller]'s representative and the
[buyer] agreed that the order was to be executed only once. In such a case of falsa
demonstratio non nocet, the content of the contract is determined by the concurrent intent
of the parties.
3. The [seller] is also not entitled to an amount of DM 6,296.00 as stated in invoice
II.5. While the parties do not agree whether the [seller] actually gave a credit to the buyer
with respect to the building project "Gondrom", it is undisputed that the [seller] did not
comply with desired color changes in the windows that were delivered. The [seller]'s claim
for payment fails due to breach of contract.
4. Finally, [seller]'s claim for payment resulting out of invoice II.10.b) in an amount
of DM 1,280.47 is unjustified. According to the credible testimony given by witness
Börner, the [buyer] had ordered unglazed windows. The windows delivered had not
corresponded to the measurements given to the [seller]. Thus, the glass had to be ordered
again from a third party. A reduction of the additional costs in the amount of DM
1,280.47 is admissible under § 463 BGB [Bürgerliches Gesetzbuch, German Civil Code].
B. The [buyer]'s appeal is unfounded. The [buyer] does not possess a right of retention
with respect to the folding shutters concerning project "Kommission Lauterbach". The
absolute cut-off period for notices of non-conformity under Art. 39(2) CISG has
expired.
1. Under Art. 3(1) CISG, contracts for the supply of goods to be manufactured or
produced are explicitly considered sales contracts under the Convention. This includes
contracts in which the [seller] is obligated to deliver future goods which have yet to be
manufactured by it or a third party. The definition corresponds to contracts for work
and materials under § 651 BGB [Bürgerliches Gesetzbuch, German Civil Code], with the
- in this case immaterial - exception that under Art. 3 CISG it is irrelevant whether the
goods manufactured are fungible (Staudinger/Magnus, CISG, 1999, Art. 3, n. 13).
2. As the folding shutters were delivered in the beginning of 1995 and a notice of
non-conformity was given only on 12 January 1998, the cut-off period of two years
stipulated by Art. 39(2) CISG had already expired. In any event, the [buyer] did not give
notice specifying the defect within reasonable time. According to general opinion, the time
period considered reasonable under Art. 39(1) CISG ranges between two weeks and a
month (Staudinger/Magnus, Art. 39 nn. 36f. and 49). In the present case, the parties had
already been involved in litigation for at least a month when the notice of non-conformity
was given. The [buyer] had therefore lost its remedies under the CISG due to the expiry
of the cut-off period. The statute of limitations is irrelevant.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant/Appellee of Italy is referred to as [seller]; the Defendant-Appellee/Appellant of Germany is referred to as [buyer]. Amounts in German currency (Deutsche Mark) are indicated as [DM]; abbreviation BGB = Bürgliches Gesetzbuch [German Civil Code].
** Ruth M. Janal, LL.M (UNSW), a PhD candidate at Albert-Ludwigs-Universität Freiburg, has been an active participant in the CISG online database of the University of Freiburg.
*** Camilla Baasch Andersen is a Lecturer in International Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London, and a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She is currently finishing her PhD thesis on uniformity of the CISG at the University of Copenhagen.
Go to Case Table of Contents
Pace Law School
Institute of International Commercial Law - Last updated September 21, 2006
Comments/Contributions
Go to Database Directory ||
Go to CISG Table of Contents
|| Go to Case Search Form || Go to Bibliography