Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Germany 28 June 2001 District Court Trier (Scrap kitchenware case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010628g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20010628 (28 June 2001)

JURISDICTION: Germany

TRIBUNAL: LG Trier [LG = Landgericht = District Court]

JUDGE(S): Brauckmann, Hoff, Fritz

CASE NUMBER/DOCKET NUMBER: 7 HKO 178/00

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: 1st instance default judgment of 22 March 2001

SELLER'S COUNTRY: Netherlands (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Scrap kitchenware


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 18 ; 38 ; 39(1) [Also cited: Articles 35 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

18A3 [Criteria for acceptance (silence or inactivity insufficient): however, commercial letter of confirmation held acceptable in this instance];

38A [Buyer's obligation to examine goods];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Commercial letters of confirmation ; Examination of goods ; Lack of conformity notice, timeliness

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/673.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 11

Go to Case Table of Contents

Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Trier

28 June 2001 [7 HKO 178/00]

Translation [*] by Tobias Koppitz [**]

Edited by Jan Henning Berg [***]

[...]

AWARD

The 7th Civil Division -- panel for Commercial Matters -- of the District Court Trier after oral hearing on 7 June 2001, through Vice-President of the District Court Brauckmann and Commercial Judges Hoff and Fritz, has found:

   -    The default judgment of 22 March 2001 is upheld.
 
   -    Defendant [Buyer] has to bear the further costs of the dispute.
 
   -    The judgment is provisionally enforceable by way of security deposit in the amount of Deutsche Mark [DM] 59,000. The enforcement out of the default judgment may only proceed against deposition of the security.

FACTUAL BACKGROUND

The parties are trading with scrap parts. Plaintiff [Seller] operates a subsidiary in Köln-Deutz [Germany]. [Buyer] has its registered office in the Netherlands. A permanent business relationship existed between the parties. By default judgment of 22 March 2001 [Buyer] has been ordered to pay [Seller] DM 46,990 as well as interest in the amount of 5% for the period of 23 April 2000 until 30 April 2000 and in the amount of 5% above the respective base rate of interest from 1 May 2000 on. This is subject to [Buyer]'s appeal.

POSITIONS OF THE PARTIES

[Seller]'s position

[Seller] submits:

Due to an oral order, which has been fixed in writing in the confirmation of sale of 2 February 2000 (21.55 of the record), the [Buyer] took over 11,980 kg of aluminium-crockery and 13,420 kg of aluminium-crockery on its premises in Köln-Deutz on 23 February 2000 (enclosure K1 and K2 to the statement of claim). In that respect, the DM 26,990 sued for were billed to [Buyer] on 29 February 2000 (enclosure K3 of the record). This bill has -- undisputedly -- not been paid. As far as [Buyer] made payments earlier, those payments had always balanced preceding deliveries; this also applies to the payment for the delivery of 20,800 kg of aluminium-crockery on 29 November 1999 according to the invoice of 30 November 1999 (enclosure K7, page 12 of the record).

[Seller] requests the court to uphold the default judgment.

[Buyer]'s position

[Buyer] asks the court to set aside the default judgment of 22 March 2001 and to dismiss the claim. [Buyer] is of the opinion that the claim was inadmissible and furthermore states:

For the deliveries in dispute, [Buyer] merely owed DM 37,129.50, because the material taken over had shown pollutions to the extent of 23%, so that [Buyer] made deductions of the cargo quantity by letter of 8 March 2000 in accordance with the agreement concluded by the parties, as far as the pollution exceeds 2% (enclosure K4, page 9 of the record). [Buyer] also relies on a set-off with a counterclaim in the amount of DM 31,200 plus interest in the amount of 5% since 29 December 1999 for unjustified enrichment according to 812 BGB [*]. The invoice of 30 November 1999 had been paid by mistake and without cause in law, because this material had not been loaded. The acknowledgement of delivery of 17 December 1999 (enclosure K6, page 11 of the record) had also been sent out by mistake.

The court took evidence by hearing of the witness named by [Buyer]. Regarding the outcome of the taking of evidence, reference is made to the minutes of proceedings of 7 June 2001 (pages 88 et seq. of the record).

For 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.

REASONS FOR THE DECISION

The appeal filed in due form and time by [Buyer], which is also admissible ( 338 et seq. ZPO [*]) is unfounded. As the decision, which has to be made due to the new court hearing, it corresponds to the decision contained in the default judgment, in accordance with 343 sent. 1 ZPO, this decision is to be maintained.

[Seller]'s claim is admissible and founded.

As far as [Buyer] derives procedural objections from the fact that [Seller] originally specified the witness as manager, those objections are overcome by the fact that [Seller] now specifies the witness' divorced wife as manager, in accordance with the excerpt of the commercial register presented by the [Buyer].

The international and local jurisdiction of the Court follows from Art. 17(1) sent. 1, sent. 12(a) Brussels Convention [European Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters]. According to this provision, the exclusive jurisdiction of one court or of the courts of one State can be agreed upon either in writing or orally by written confirmation. The reference to general terms and conditions suffices for the requirement of writing (Kropholler, Europäisches Zivilprozessrecht, 6th ed., numbers 31 and 31 [sic!] with reference to jurisprudence of the ECJ [*]). Presently, the general terms and conditions of [Seller] are decisive (pages 14, 15 of the record), which provide under number 10 that the place of performance of the seller's obligation to pay "as well as the place of jurisdiction for both parties to the contract ..." is "... the head office of the seller (Trier)". These general terms and conditions of [Seller] have been incorporated into the contractual relationship between the parties. This follows from the sales confirmation of 2 February 2000, which [Seller] submitted to the record. In legal terms, this is a so-called commercial letter of confirmation, because it refers to the "price negotiations between your Mr. [...] and our Mr. [...]" and "it has been confirmed to have sold to you in consideration of our general terms and conditions." [Buyer] did not object to this commercial letter of confirmation. Thus, the court has no doubt that jurisdiction has been properly agreed upon.

These assessments -- which have already been made in the default judgment -- are not subject to [Buyer]'s appeal anymore.

[Seller]'s right to receive payment of its purchase price claim in the amount of DM 46,990 follows from Art. 53 et seq. of the United Nations Convention on Contracts for the International Sale of Goods (CISG). According to Art. 28(1) sent. 1, (2) sent. 1 EGBGB [*], the legal relations between the parties are to be governed by German law, because [Seller], having its head office in the Federal Republic of Germany, had to effect the characteristic performance of the contract of sale concluded between the parties. Since both the Federal Republic of Germany and the Netherlands are Contracting States to the United Nations Convention on Contracts for the International Sale of Goods (CISG), this Convention has to be applied in accordance with Art. 1(1)(a) CISG.

The conclusion of the contract of sale, as has been fixed in the sales confirmation of 2 February 2000 (21.55 of the record), is undisputed between the parties. The parties are also not in dispute about the fact that on 23 February 2000, 11,980 kg and 13,420 kg of material have been picked up at [Seller]'s. It is merely disputed whether a deduction according to the letter of [Buyer] of 8 March 2000 (enclosures K4 and K5, pages 9 and 10 of the record) is justified due to the pollutions alleged by [Buyer] (iron and residue). Legally, [Buyer]'s submission has to be interpreted in a way that it asserts the lack of conformity of a part of the goods delivered in the sense of Art. 35 et seq. CISG. Whether [Buyer]'s allegations are correct, however, may remain undecided because its notice of non-conformity was given too late. According to Art. 38(1) CISG, the buyer must examine the goods, or cause them to be examined, within as short a period of time as is practicable in the circumstances. In that regard, [Buyer] did not submit when this examination would have been conducted. According to Art. 39(1) CISG, the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. [Buyer] exceeded this time limit. Its notice of the lack of conformity is dated 8 March 2000. Thus, [Buyer] took two weeks time until the drafting of the written notice of lack of conformity. In the opinion of the court, this is too long because no reasons have been submitted why an earlier examination and notice had not been possible. In addition, it is presently the case that, according to [Seller]'s receipt stamp, it has only received [Buyer]'s notice on 21 June 2000. An earlier receipt is also not alleged by [Buyer]. There can be no doubt that a notice of lack of conformity which the seller receives almost four months after the receipt of goods, is too late by far.

The claim has also not become extinct by way of set-off according to 387 et seq., 389 BGB [*] with [Buyer]'s alleged counterclaim in the amount of DM 31,200 plus interest.

[Buyer] does not have a claim in the said amount from unjustified enrichment according to 812 BGB. It did not present the required evidence that the payment of DM 31,200 has been made without cause in law.

For the tendering of evidence, [Buyer] has named the divorced husband of its manager as witness. This man has been heard by the court as present witness. According to his statement, the delivery of 29 November 1999 did not reach [Buyer]. However, this is of no legal importance. It is rather decisive that 20,800 kg of aluminium-crockery have been picked up at [Seller]'s by a vehicle of [Buyer] on 29 November 1999. This is evidenced by the weight note of 29 November 1999 (page 92 of the record); in the light of the preciseness of the specifications, there can be no doubt that this is an authentic document. Whether the driver -- as the witness assumed -- embezzled the goods and contrary to [Buyer]'s confirmation of receipt of 17 December 1999 (enclosure K6, page 11 of the record) did not deliver them to [Buyer], may remain undecided as this could not discharge [Buyer]. According to the statement of the witness, [Buyer] had only informed [Seller] on the following day, 30 November 1999, that the driver is no longer employed by the [Buyer]. Therefore, on 29 November 1999 the [Seller] must still have assumed that this driver, who obviously used a vehicle of the [Buyer], was also authorized to receive the goods. It can also not be assumed that the delivery of goods had been made without cause in law. At least, it cannot be excluded that -- at least from the [Seller]'s point of view -- that the pickup resulted from the order fixed in writing in the confirmation of sale of 19 November 1999 (B1.54 of the record). After all, the statement of the witness is not appropriate to prove a payment without cause in law.

The secondary decisions are based on 91, 709 ZPO [*].

Brauckmann, Hoff, Fritz

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this presentation, the Plaintiff-Appellee of Netherlands is referred to as [Seller] and the Defendant-Appellant of Germany is referred to as [Buyer]. Amounts in German currency (Deutsche Mark) are indicated as [DM].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; ECJ = European Court of Justice; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; ZPO = Zivilprozessordnumg [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 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
Pace Law School Institute of International Commercial Law - Last updated June 11, 2007
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography