Germany 30 August 2001 District Court München (Wine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010830g1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 12 HKO 5593/01
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Wine
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
38A [Buyer's obligation to examine goods: time for examining goods]; 39A11 ; 39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Degree of specificity required]; 74A [General rules for measuring damages: loss suffered as consequence of breach]; 78B [Rate of interest]
Descriptors:
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/668.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); Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 74 para. 12; CISG-AC advisory opinion on Calculation of Damages under CISG Article 74 [Spring 2006] n.102 (related cases cited in addendum to opinion)
Go to Case Table of ContentsCase text (English translation)
Queen Mary Case Translation Programme
30 August 2001 [12 HKO 5593/01]
Translation [*] by Ruth M. Janal [**]
Translation edited by Veit Konrad [***]
The District Court Munich, 12th commercial chamber, represented by the judge at the District
Court Dr. Bachmann and commercial judges Hildebrandt and Schornstein as associate judges,
following the oral hearing of 2 August 2001, hands down the following
FINAL DECISION
FACTS OF THE CASE
The [sellers] are siblings and wine producers with seat in the vicinity of […], Italy.
The [buyer] is a wholesaler and retailer of wine who operates a wine shop in Munich
and imports wine from Italy. The [sellers] invoiced the [buyer] for wine deliveries in
an overall amount of 26,567,100.- ItŁ [Italian Lire]. These claims are undisputed
with regard to their amount.
With their claim, the [sellers] seek payment of the entire purchase price, which they
have converted to the German currency following the current exchange rate.
The [sellers] request the court to order the [buyer] to pay to the [sellers] DM
26,835.48 plus 10% interest from 7 February 2001 as well as DM 79.50 pre-judicial
costs.
The [buyer] requests that the claim be dismissed.
The [buyer] submits that the invoices in question listed wine deliveries that had not
been effected in the way they had been invoiced; the [sellers] identified wines in the
delivery slips and invoices that differed from the wines which were actually
delivered. [Buyer] had asked the [sellers] in vain to draw up orderly invoices.
[Buyer] furthermore pleads that the [seller] had delivered defective goods. As a
result, [buyer]'s customers had queried the delivered wine and had returned wines
already sold. [Buyer] had immediately passed on the respective customer complaints
to the [sellers], who had accepted the return of the goods and credited the [buyer]'s
account. The delivery of the non-conforming goods had caused considerable
damages, both due to the taking back of the wine and due to turnover losses.
[Buyer] declares that the [sellers] had a conversation with it regarding
compensation for the damages, but that they failed to submit an offer.
With regard to the further submissions, the Court refers to the briefs exchanged by
the parties and the documents attached thereto.
REASONS FOR THE DECISION
[Sellers]' claim is admissible and justified with respect to the principal matter. The
[buyer] owes the [sellers] the purchase price for the wines delivered.
The [sellers]' claim follows from Art. 53 CISG, under which the buyer must pay the
price. The [buyer]'s objection that the [sellers] did not effect the deliveries
according to the invoices is unfounded.
The [buyer] in this context solely refers to deliveries listed in two invoices and
pleads that the [sellers] charged the same prices for two types of wine of
considerably different quality. However, this fact firstly does not allow an inference
with respect to all deliveries in dispute. And, secondly, the [buyer] does not submit
which type and quantity of wine it ordered and did not receive and which type and
quantity of wine the [sellers] delivered to [buyer] instead.
Even if it had turned out - at the latest after receipt of the invoice no. 151 of 12
September 2000 - that the [sellers] had made a delivery of the wrong goods, the
[buyer] would have lost its right to rely on this lack of conformity. The [buyer]
relied on the alleged lack of conformity only in its statement of defense, that is eight
months after the delivery, while it would have been obliged to discover and give
notice of the non-conformity within a short period of time as was practicable after
the delivery (Art. 39(1), Art. 38(1) CISG).
The requests to draw up orderly invoices, which the [buyer] allegedly posed to the
[sellers], do not constitute a notice to the effect that the delivered goods differed
from the ones ordered. In case that the ordered goods had been delivered, the
invoices, however, listed different types of wine than the ones delivered, the [buyer]
would possess a right of retention in the meaning of § 273 BGB [*]. [Buyer] would
be entitled to refuse payment of the purchase price until it received an orderly
invoice. This, however, would require the pleading of facts revealing which types of
wines were delivered and which invoice contained a type of wine different from the
one delivered. The [buyer] failed to make corresponding submissions. [Buyer]
accordingly also did not declare its intention to rely on a retention right.
The [buyer]'s pleading that the [sellers] delivered defective wines also does not
stand in the way of the claim. [Buyer] did not claim that the goods listed in the
invoices in question had been defective. The "written complaints" by the [buyer]'s
customer do not reveal such a fact. While the complaints do include wines that were
delivered by the [sellers] to the [buyer], it is unclear whether they refer to wines
from the deliveries in dispute.
Accordingly, the [buyer] does not rely on an avoidance of the contracts which form
the basis for the deliveries in dispute. If one follows the [buyer]'s submission that
the [sellers] "also took back part of the affected goods" and that [buyer] received
corresponding credit, this is of no effect to the invoices in question. The [buyer] has
neither declared a set-off with the credited amount, nor does it plead that it was
released from its obligation to pay the purchase price following an avoidance of the
sales contracts (Art. 81(1) CISG).
Instead, [buyer] submits that it "suffered considerable damages" as a result of the
lack of conformity of the deliveries. However, [buyer] does not put an amount to its
alleged damages and furthermore did not declare a set-off with any damages claims.
The [buyer]'s damages claims would also be unfounded. It need not be decided
whether the [buyer] - as it submits - immediately forwarded its customers'
complaints to the [sellers] and asked them to take back the defective deliveries. The
[buyer] failed to show that it suffered a loss (Art. 74 CISG) as a consequence of
the breach of contract. [Buyer] did not submit that it paid the [sellers] for the non-conforming deliveries, respectively that it did not receive a credit by the [sellers]
after it had effected payment. Insofar as [buyer] pleads that it did receive a credit, [buyer] did not suffer any losses. The [buyer] furthermore made no submission to the
effect that it delivered substitute goods, that is, other wines, to its customers and
that it paid a price for those goods which exceeded the one agreed with the [sellers]
(Art. 74 CISG). Turnover losses caused by the "loss" of customers, who, because
non-conforming deliveries, fail to place new orders, do not constitute a - direct -
loss of wealth caused by the [sellers]' breach of contract in the meaning of Art. 74
CISG. In any case, the [buyer] again failed to submit any corresponding facts.
An objection against the [sellers]' claim can also not be based on the fact that the
[sellers] - as the [buyer] submits - raised the "possibility" of a "damages
compensation", but then did not make an "offer". The [sellers] did not declare an
acknowledgement of indebtedness. It was upon the [buyer] to prove a mature claim
for damages and to declare a set-off with such a claim before the proceedings were
initiated or as a defense to the [sellers]' claim for payment of the purchase price.
The Court can finally leave open the question of whether - as the [buyer] submits -
the [sellers]' commercial agent "directly" approached and offered wines to [buyer]'s
customers, which the [sellers] then delivered directly to the [buyer]'s customers.
[Buyer] did not plead that [buyer] had acted as an authorized dealer for the [sellers];
there are no apparent mutual contractual obligations which formed the basis for
[buyer]'s wine purchases. The [buyer] therefore failed to show that the [sellers]
were obliged to deliver solely to it or to charge [buyer] lower prices than other
customers. Even if that had been the case, the [buyer] would have had to submit the
loss [buyer] suffered as a result of the direct deliveries. [Buyer] would have needed
to at least name the recipient, the kind and quantity of the delivered wines and their
prices. Again, [buyer] failed to make respective submissions of facts.
Consequently, the [sellers]' claim was justified with respect to its principal matter.
The [buyer] was in culpable delay with payment of purchase price on 7 February
2001, as the [sellers]' attorneys sent [buyer] a reminder of payment requesting
payment to be effected until 6 February 2001. The [buyer] therefore at the latest at
this point in time failed to pay the purchase price (Art. 78 CISG). The interest rate
for sums in arrears is fixed at 5%. As the CISG does not provide for an interest rate,
the interest rate needs to be determined under Italian law. The contract in dispute is
governed by Italian law, as the party obliged to effect the characteristic
performance, that is the delivery of the goods, has its place of business in Italy (Art.
28(1) and (2) EGBGB [*]). Under Art. 1284(1) of the Italian Civil Code [C.c.] in
connection with Art. 2(185) of the Budget Concomitant Act no. 662 of 22
December 1996, the interest rate is 5% per annum (cf. Kindler, Jahrbuch des
italienischen Recht, vol. 10, p. 149-152). The [buyer] is liable for the pre-judicial
expenses shown by the [sellers] under Art. 78 in connection with Art. 74, 61(1)(b)
CISG.
The decision on costs is based upon § 92(2) ZPO [*], the decision regarding the
provisional enforceability is based on § 709 ZPO.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiffs of Italy are referred to as [sellers];
the Defendant of Germany is referred to as [Buyer]. Amounts in German Currency
(Deutsche Mark) are indicated as [DM]; amounts in the currency of Italy (Italian
Lire) are indicated as [ItŁ].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German
Civil Code]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche
[German Code on the Conflict of Laws]; ZPO = Zivilprozessordnung [German
Code on Civil Procedure].
** Ruth M. Janal, LL.M. (UNSW), a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg, has been an active participant in the CISG online database of
the University of Freiburg.
*** Veit Konrad has studied law at Humboldt University, Berlin, since 1000. During 2001-2002 he spend a year at Queen Mary College, University of London, as an Erasmus student.
District Court (Landgericht) München
I.
The [buyer] is ordered to pay to the [seller] 26,835.48 DM [Deutsche Mark] plus
5% interest from 7 February 2001 and 79.50 DM pre-judicial costs.
II.
The remainder of the claim is dismissed.
III.
The [buyer] bears the costs of the proceedings.
IV.
The decision is preliminarily enforceable against the lodging of security in the amount of 31,300.- DM.
Pace Law School
Institute of International Commercial Law - Last updated November 8, 2006