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CISG CASE PRESENTATION

Germany 10 October 2001 Appellate Court Rostock (Frozen food case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/011010g1.html]

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

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Case identification

DATE OF DECISION: 20011010 (10 October 2001)

JURISDICTION: Germany

TRIBUNAL: OLG Rostock [OLG = Oberlandesgericht = Provincial Court of Appeal]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 6 U 126/00

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

CASE HISTORY: 1st instance LG Rostock (10 O 421/99) 17 April 2000; related proceeding OLG Rostock 25 September 2002

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Frozen food


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 6 ; 55 ; 78 [Also cited: Article 53]

Classification of issues using UNCITRAL classification code numbers:

6B [Agreements to apply Convention: choice of law of Contracting State];

55A31 [Enforceability of agreements that do not make provision for the price: implied agreement on price generally charged for such goods];

78B [Rate of interest]

Descriptors: Choice of law ; Open-price contracts ; Interest

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=906&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/671.htm>; See also Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=906&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Liu Chengwei, Recovery of interest (November 2003) n.242; 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. 55 para. 8

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Rostock

10 October 2001 [6 U 126/00]

Translation [*] by Linus Meyer [**]

Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor
[***]

[...]

[A partial decision is presented below;
for final decision, go to OLG Rostock,
25 September 2002, file no 6 U 126/00]

SUMMARY OF THE DECISION

The appeal by the Defendant [Buyer] is partly successful. The decision of the judge of the 10th Civil Chamber is partly amended:

The claim by Plaintiff [Seller] for the amount of 238 Deutsche Mark [DM] plus 5 % interest since 23 July is rejected.

The [Buyer]'s appeal is unsuccessful as far as it challenged the decision that the [Buyer] has to pay:

1,090.55 DM plus 5 % interest
-   on   22.40 DM since 25 June 1998,
-   on  826.50 DM since 8 August 1998,
-   on  241.65 DM since 19 October 1998

and 5 % interest
-   on  4,881.51 DM since 2 February 1998,
-   on    690.00 DM since 20 February 1998,
-   on    500.40 DM since 20 February 1998,
-   on    415.20 DM since 20 February 1998,
-   on  3,417.00 DM since 1 July 1998,
-   on    318.00 DM since 25 June 1998,
-   on     733.80 DM since 21 July 1998,
-   on    503.20 DM since 23 July 1998.

The decision on the cost of the proceeding will be rendered in the final award. This judgment is provisionally enforceable.

[...]

REASONS FOR THE DECISION

The dispute is ready for a decision to the extent indicated below. With respect to the whole claim ( 23,430.47 DM) which has been challenged, the [Seller] has a claim for 1,090.55 DM which has been sufficiently proven. The [Seller] can also demand interest to the extent stated above for the part of the claim in the amount of 18,163.36 DM which has not been challenged in the appeal.

The [Buyer]'s appeal is justified in the amount of 238 DM, since the [Seller] is not entitled to this sum.

[Choice of law]

The [Seller]'s right for payment of altogether 1,090.55 DM results from Art. 53 CISG. Contracts of sale for the delivery of the goods were concluded between the parties. The [Buyer] is obliged to pay the purchase price of these contracts. The CISG is applicable to the dispute because the parties have their permanent establishments in different countries which have both adopted the CISG and because the contract concerns moveable goods (Schlechtriem et al. - Ferrari, Kommentar zum einheitlichen UN-Kaufrecht, CISG, 3d ed. Art. 1 para. 8).

By naming provisions of the German Commercial Code (HGB [*] ) in their contract, the parties have impliedly agreed on the law applicable to the contract. This choice of law can, however, only be understood as an exclusion of the French Code Civil and a choice of German contractual law in general. The CISG is therefore applicable as a part of the German contractual law. It came into force in Germany on 1 September 1991, after its ratification on 26 May 1981. France ratified the CISG on 27 August 1981. The CISG entered into force in France on 1 January 1988 (Schlechtriem, Annex 1). The parties have not made a choice of the non-unified German law (HGB and BGB [*]) according to Art. 27 EGBGB [*].

A silent choice of German law can be assumed if both parties assumed the applicability of German law without any doubt through the entire proceeding (BGHZ [*] 53, p. 189, 191 et seq.; OLG Düsseldorf, NJW-RR [*] 1987, p. 483 with further references). Such an assumption by the parties can especially be inferred from the citing of provisions of that law or by both parties not criticizing the application of that law by a court of first instance (Münchner Kommentar - Martiny, BGB [*], 3d ed., Art. 27 EGBGB para. 48 with further reference). However, as the CISG is German law, an exclusion of that law would need to be expressed clearly enough, for example, by a reference to non-unified law which shows the parties knew to make a legally relevant declaration and had the will to do so (e.g., "The law applicable is the sales law of the BGB", cf. Schlechtriem et al., - Ferrari, Art. 6, para. 21). The parties have not made such a declaration even though they had been informed of its necessity by this Chamber. Merely referring to 377 HGB [*] is insufficient, because such reference might also be made because the parties think that that law was applicable anyway (Schlechtriem et al., - Ferrari, Art. 6, paras. 26, 27 with further reference). The [Buyer] has only appealed against the decision of the Court of First Instance in the amount of 23,430.47 DM.

[The claims in dispute]

With respect to the claims in dispute between the parties the following overview can be given:

Positions 1-19:
-   Amount of the invoice. . . . . . . . . . 41,593.83 DM
-   Challenged by the appeal . . . . . . . 23,430.47 DM
-   Not challenged by the appeal . . . . 18,163.36 DM

The [Buyer] has requested the rejection of the part of the claim which exceeds 18,663.36 DM, the difference of 500 DM in the amount stated above is a pure calculation error. This can be inferred from the written pleading in which the appeal was raised, as the [Buyer] challenged position 11 of the invoice entirely in the amount of 851.18 DM, the amount of that position was, however, only 351.18 DM. 133, 157 BGB [*] apply also to unambiguous requests and provide for declarations to be understood in the way the recipient of the declaration could understand them in consideration of the principles of good faith as well as common usage. The obvious calculation error could therefore be corrected by the Chamber without a party requesting it.

With respect to position 9, the [Seller] is entitled to claim 22.40 DM. The claim of altogether 550.40 DM was only challenged in this amount by the appeal.

The parties have concluded a sales contract for the delivery of crawfish at 8.60 DM each. It is not in dispute between the parties that a large number of orders was transacted according to the product lists of the [Seller]. According to Art. 55 CISG, there is an assumption that the parties have impliedly made reference to the price which was usually charged for comparable goods at the time of the conclusion of the contract in the same field of business under similar circumstances, as far as no indications against such an assumption are given. Therefore, the usual list price can be taken as the price agreed upon (cf. Palandt et al. - Putzo, 60th ed. 433 para. 28). According to the price list, the purchase price for cooked half crawfish is 8.60 DM each. The [Buyer] has not sufficiently substantiated that there had been an agreement on a lower price in regard to a considerable amount of goods. The [Buyer] was obliged to show and prove when and with whom such agreements had been made. As far as the [Buyer], in the first instance proceedings alleged that it had indicated by fax on 21 March 1998 that its managing director wanted to fix the price, [Buyer] has not maintained this contention in the appeal. In addition, this contention had already been challenged in the first instance proceedings .

The [Seller] is further entitled to the payment of 826.50 DM with respect to position 16. With respect to this position, the [Seller] is entitled to a total sales price of 2,064 DM, a part of 1,237.50 DM is not part of the appeal.

The parties have concluded a sales contract for 240 half crawfish at a price of 8.60 DM each.

The [Buyer] purports to only have received 150 half crawfish. [Buyer], however, contradicts itself. In the fax of 17 June 1998, the [Buyer] complained that 15 boxes of half crawfish had not been delivered. The [Seller]'s price list states that a box contains 16 half crawfish. Accordingly, the [Buyer] itself requested the delivery of 240 half crawfish. Such delivery was made. Insofar as the [Seller] refers to a price list of July 1998, which allegedly states the price at 9.15 DM each, [Seller] has failed to present this list during the court proceedings. According to the price list of May 1998, the price was 8.60 DM each.

The [Seller] is further entitled to 241.65 DM with respect to position 19 of the invoice. The parties have concluded a sales contract for shrimp in the amount stated in the invoice. The [Buyer] has not challenged the amount of goods delivered but only the prices. Even though [Buyer] has at first purported to have received only 80 kg of size 200/300 and only 300 kg of shrimp size 300/500, [Buyer] has used the amount of shrimp actually delivered for its own calculation and has not challenged them. [Buyer]'s own calculation is based on deliveries of 90 kg of size 100/200 shrimp, 90 kg of size 200/300 shrimp and 315 kg of size 300/500 shrimp. This results from [Buyer]'s calculation of the price difference of 0.41 DM multiplied by the amount. The amount of 129.15 DM can only be reached if the price difference of 0.41 DM is multiplied by 315. The [Buyer] argues that the parties had agreed upon other prices for the shrimp. This has not been sufficiently proven for the reasons stated above. With respect to position 13 of the invoice (claim for 238 DM), the [Buyer]'s appeal is justified, since the [Seller] is not entitled to this amount. The [Buyer] has denied having received the rabbit-haunches. The [Seller] bears the burden of proof on this issue. The delivery receipt which was submitted can hardly be read. It also only states that one euro-pallet of frozen food with a weight of 170 Kg was delivered. It can therefore not prove the delivery of the rabbit-haunches which, according to the invoice, had a weight of only 40 kg.

[Interest and provisional enforceability]

The [Seller] is entitled to interest in respect to the amount which was not challenged by the present appeal (18,163.36 DM) according to Art. 78 CISG. This article provides that the seller is entitled to interest if the buyer does not pay the price which is due. The amount of the interest has to be calculated according to 353, 352 HGB [*], since the sale is a commercial transaction for both parties in the sense of 343 HGB. According to leading doctrine and court decisions, the interest rate, which is not regulated by Art. 78 CISG, can be inferred either from national law which is subsidiarily applicable or from the usual interest rate of the country in whose national currency the price has to be paid. In this case, both methods lead to the application of German law. With respect to the rest of the total amount, no decision can be made, because the dispute is not yet ready for decision.

The decision on provisional enforceability results from 708 No. 10, 11; 711; 713 ZPO [*].


FOOTNOTES

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

Translator's note on other abbreviations: BGB = Bürgerliches Besetzbuch [German Civil Code]; BGHZ = Entscheidungen des Bundesgerichtshofes in Zivilsachen [Official Reporter of Decisions of the German Federal Supreme Court on Civil Matters] EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; HGB = Handelsgesetzbuch [German Commercial Code]; ZP0 = Zivilprozessordnung [German Code on Civil Procedure].

** Linus Meyer is a law student at the University of Osnabrück, Germany.

*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.

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Pace Law School Institute of International Commercial Law - Last updated July 19, 2007
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