Germany 29 March 2001 District Court Trier (Mobile phones case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010329g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 7 HKO 204/99
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany [defendant]
BUYER'S COUNTRY: Italy [plaintiff]
GOODS INVOLVED: Mobile phones
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
35A [Conformity of goods: quality, quantity and description required by contract]; 39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]; 45B [Remedies under articles 46-52 do not bar damages]; 74C [Proof of damages a prerequisite]
35A [Conformity of goods: quality, quantity and description required by contract];
39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];
45B [Remedies under articles 46-52 do not bar damages];
74C [Proof of damages a prerequisite]
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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/674.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion)Go to Case Table of Contents
Queen Mary Case Translation Programme
29 March 2001 [7 HKO 204/99]
Translation [*] by Tobias Koppitz [**]
Edited by Jan Henning Berg [***]
The 7th Civil Division -- Panel for Commercial Matters -- of the District Court Trier after the oral hearing of 8 March 2001 through the Vice-President of the District Court Brauckmann, Commercial Judge Clemens and Commercial Judge Messerich has found:
On 18 September 1998, [Buyer] ordered from [Seller] 300 mobile phones, type Motorola Star Tac 130, for a total price of DM 265,000 (page 11 of the record). The items packed by [Seller] into two transport boxes on two pallets were, on [Buyer]'s instruction, picked up on 25 September 1998 in Trier (receipt of the truck driver of 25 September 1998 on the delivery slip of 21 September 1998 on page 12 of the record) and brought to Frankfurt-Kelsterbach. On 1 or 2 October 1998, the boxes were brought from the airport in Frankfurt to the airport Milan-Linate via airfreight, where they arrived at the bonded warehouse on 2 October 1998. From there, they were taken to the warehouse of [...], [Buyer]'s forwarding agent at the place of destination, in Milan-Segrate on 5 October 1998. [Buyer] has paid the purchase price in full.
POSITIONS OF THE PARTIES
When, in the presence of its staff members, the boxes were opened on 21 October 1998, one mobile phone was missing in the one box and 75 were missing in the other one. Instead of the 75 missing mobile phones, there were cobblestones in said box. After the assessments of the average adjuster dated 22 October 1998, the removal of the 76 mobile phones must have taken place prior to the handing over to the driver of the forwarding agency in contrast to the acknowledgement of receipt of 25 September 1998. [Buyer] suffered damages in the amount of the resale value of 76 mobile phones x DM 950 = DM 72,200, however, at least in the amount of the proportionate purchase price of DM 67,260.
[Buyer] requests the court to order the [Seller] to pay DM 72,200 as well as 5% interest from the time of commencement of the action. The party intervening in support of [Buyer] does not file an application.
[Seller] requests the court to dismiss the claim. It pleads the defense of limitation and furthermore pleads that due to the security measures taken by it, it would be impossible that the mobile phones had already been missing at the time of the handing over to the driver of the forwarding agency in Trier. The court took evidence by hearing of the witnesses as well as by request for a written expert opinion of the officially appointed, sworn and diploma-ed expert for tool and form traces -- of 12 December 2000 -- which the expert orally explained and completed in the oral hearing.
Regarding the outcome of the taking of evidence, reference is made to the expert opinion on pages 161 et seq. of the record as well as to the minutes of proceedings of 8 March 2001, pages 335 et seq. of the record.
Regarding the further statement of facts, reference is made to the mutual written statements of the case by the parties and to the contents of the documents submitted by them, especially to the average report of 9 December 1998, pages 60 et seq. of the record as well as to the photographs submitted as attachment to page 93.
REASONS FOR THE DECISION
The 'Buyer]'s claim, although admissible, is not founded.
The international jurisdiction of the court applied to follows from Art. 2 (1), Art. 5 No. 1 and No. 3, Art. 53 (1) Brussels Convention (European Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters).
As far as contractual claims are being asserted, the legal relationships of the parties is to be assessed under the United Nations Convention on the International Sale of Goods (CISG), because Italy and the Federal Republic of Germany are Contracting States (Art. 1(1)(a) CISG). Supplementary, according to Art. 28(1)1, (2)1 EGBGB [*],German law is applicable. According to Art. 38 EGBGB and Art. 40(1)1 EGBGB, this also applies insofar as the claim is based on unjustified enrichment or on tort. The application of the UN Sales Convention is not excluded by the general terms and conditions of [Seller], as they were not incorporated into the contractual relation. The written order of [Buyer] does not contain any such indication. There is also no corresponding receipt of the order. As this was the first order of [Buyer], one can also not rely on a permanent business relation under the incorporation of the terms of [Seller].
A claim for damages from breach of contract pursuant to Arts. 45(1)(b), 74 CISG is not in existence. [Buyer] did not succeed in presenting the required evidence in order to prove [Seller]'s breach of contract. It did not prove that at the decisive time of the handing over of the goods, the goods did not comply with the requirements of the contract of sale concluded between the parties (Art. 35(1) CISG). Furthermore, according to Art. 39(1) CISG, [Buyer] had lost its right to rely on the goods' alleged lack of conformity with the contract, because on the basis of its own statement of facts it did not ascertain and notify of the lack of conformity with the contract within due time. On the basis of [Buyer]'s statement of facts, its vicarious agents did not sufficiently examine the external intactness of the transport boxes, neither at the taking over of the goods on 25 September 1998 nor at the forwarding and at intermediate storages, nor at the arrival in the warehouse of the forwarding agent at the place of destination in Milan-Segrate on 5 October 1998. Otherwise, the holes or changes at the bottom of the Euro-pallets would have been noticed. In any case, as of 5 October 1998, [Buyer] had sufficient opportunities to inspect even the content of the delivery and the supply quantity. According to its own statement, it had made use of this opportunity only on 21 October 1998 and therefore not within due time in the sense of Art. 39(1) CISG. [Buyer] cannot rely on the provision of Art. 40 CISG, as it did not prove that [Seller] knew of the alleged lack of conformity with the contract.
The court is not convinced that the goods were already missing at the delivery on 25 September 1998, rather than that they became missing later -- at the intermediate storages in Kelsterbach or in the Milanese bonded warehouse or during the long stay from 5 October 1998 to 21 October 1998 in the warehouse in Segrate.
According to the acknowledgement of receipt of the driver on 25 September 1998 (page 12 of the record) and according to the statement of the witness, who describes that a removal of the mobile phones in the warehouse of [Seller] and especially the manipulations of the boxes and pallets were impossible, the delivery had been complete and externally intact at the decisive point of time of the taking over on 25 September 1998. The assessments made by the witness on 22 October 1998 at the forwarding agency at the place of destination, which he fixed in the average report and which he repeated in the hearing of evidence, do not rebut the content of the acknowledgement of receipt, contrary to [Buyer]'s view. The court has doubts regarding the diligence and reliability of the assessments made by the witness as average adjuster. It escaped the witness' attention that the board of the Euro-pallet covering the hole at the bottom of the transport box had been removed by way of sawing and had been put back together with glue and nails, although the position of the hole behind the board was the decisive factor for the witness -- according to his average report -- for his assumption, that the 75 missing mobile phones of this transport box had already been missing prior to the taking over. In the light of this mistake, the court cannot exclude that further important facts had escaped the witness' attention and that his conclusions are incorrect. The expert appointed by the court considers the removal of 75 mobile phones after the handing over to the driver unlikely, because the manipulation of the second board of the Euro-pallet, which covered the opening almost completely, had been made from the upper side of the pallet. However, the expert does not regard himself as capable =- as he explained during his oral hearing -- to assume a higher degree of probability, due to a multitude of imponderabilia. The court regards this evaluation as correct and adopts it. Accordingly, it is for example not excluded that the manipulations had been performed during the longest storage period of the transport goods in Segrate prior to the inspection of the average adjuster. It can also not be excluded that the transport box as well as the foil had been temporarily separated from the pallet and subsequently been put back together, so that a processing of the pallet from above and an emptying and partly filling up of the transport box could have been possible. As the examination of the witnesses and experts has revealed, secure findings regarding the state of the connection between foil and Euro-pallet -- especially regarding the congruity at the time of packing and at the time of the arrival of the average adjuster -- are not possible anymore. According to the statement of the witness, the foil was pulled 3 to 10 cm over the edge of the Euro-pallet, secured with staples of 8 mm depth and afterwards sealed with a hand-burner. According to the statement of the other witness, while referring to photograph 8 of his average report, the foil was merely pulled until the edge and over the stamps of the pallet; any tighter connection cannot be inferred from photograph 1 of the average report and also not from the other photographs.
Additional findings as to the content of the transport boxes and to the state of the packing cannot be made. Witness [...] has not appeared for examination. From the findings of the witness and from the other supporting documents of the record, it can also be inferred that she was not even present at the first opening of the transport boxes. [Buyer] did not within the specified period of time communicate the address of the witness capable of receiving a writ of summons. Further witnesses, who might be able to prove the statement of [Buyer], have not been named.
From the above arguments, it follows at the same time, that the prerequisites for a liability of [Seller] for tort according to § 823(2), 831 BGB [*] in connection with § 263 StGB [*] have also not been proven. As far as the [Buyer] bases its claim on §§ 823(2), 831 BGB in connection with §§ 242, 246 StGB, it is to be pointed out that according to its own statement, the mobile phones had not been owned by [Buyer] at the time of the alleged removal.
A claim for unjustified enrichment according to § 812 BGB is excluded because payment by [Buyer] has not been made without cause in law but on the grounds of the contract of sale concluded between the parties.
The order for payment of costs is based upon §§ 91, 101(1) ZPO [*]. The pronouncement of provisional enforceability corresponds to § 709 ZPO.
Signed: Brauckmann Clemens Messerich
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Italy is referred to as [Buyer] and the Defendant of Germany is referred to as [Seller] Amounts in German currency (Deutsche Mark) are indicated as [DM].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; StGB = Strafgesetzbuch [German Criminal Code]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].
** Tobias Koppitz is a student at law at Humboldt University Berlin, preparing for his State examination. With the team of Humboldt University Berlin, he won the Frédéric Eisemann Award for third place in the 8th Willem C. Vis International Commercial Arbitration Moot 2000/2001. He was coach to the team of Humboldt University Berlin in the 9th Willem C. Vis Moot 2001/2002.
*** 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. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis Moot and 4th Willem C. Vis (East) Moot.Go to Case Table of Contents