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CISG CASE PRESENTATION

Switzerland 30 October 2001 Canton Commercial Court Bern (Construction machinery case)
[Cite as: http://cisgw3.law.pace.edu/cases/011030s1.html]

Primary source(s) of information for case presentation: Discussion in 2004 text by S.A. Kruisinga

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Case identification

DATE OF DECISION: 20011030 (30 October 2001)

JURISDICTION: Switzerland

TRIBUNAL: Handelsgericht [Commercial Court] des Kantons Bern

JUDGE(S): Oberrichter Maurer (Vorsitzender), Stauffer and Jordi (Handelsrichter), Ferrari (Gerichtschreiber)

CASE NUMBER/DOCKET NUMBER: 8831 FEMA

CASE NAME: KBH GmbH v. AL.

CASE HISTORY: 2d instance BGer [Supreme Court] (4C.60/2002.rnd) 16 May 2002 [CISG issues not addressed on appeal]

SELLER'S COUNTRY: Switzerland (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Construction machinery


UNCITRAL case abstract

SWITZERLAND: Commercial Court of the Canton of Bern (Construction machinery case) 30 October 2001 [8831 FEMA]

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/87],
CLOUT abstract no. 878

Reproduced with permission of UNCITRAL

Abstract prepared by Thomas M. Mayer

The German plaintiff purchased construction machinery from a defendant having its place of business in Switzerland. It sought damages in respect of defects in the goods sold and late delivery. The defendant pleaded the statute of limitations.

The court considered the question of statutory limitation in depth. Its fundamental position was that it must in principle be assessed on the basis of either the applicable national law or, as in the case under consideration, Swiss civil law. However, the application of a national limitation period should not, in its opinion, lead to a reduction in the period specified in article 39(1) CISG to the detriment of the buyer. The one-year limitation period stipulated in Swiss law for warranty proceedings in respect of defects in goods was thus computed, not from the handing over of the goods, as was normally the case, but only from timely notice of the defect, within the meaning of article 39 CISG.

The parties had accordingly concluded an agreement whereby the defendant had to take back the goods sold, refund the instalment payments made by the plaintiff and compensate the latter for expenditure incurred by it in consequence of the delay and the defects in the goods sold. The plaintiff argued that, under that agreement, any obligations arising from the contract of sale had been superseded by new obligations, which were no longer subject to the statutory provisions of the contract of sale but led to the application of the standard ten-year limitation period. The court examined the question in the light of Swiss civil law and concluded that no novation had taken place in the defendant's obligation to compensate. It therefore ruled that, at the time when the action at law was brought, the claim forming the subject of that action was already statute-barred, notwithstanding several earlier interruptions of the limitation period.

The ruling of the Berne Commercial Court was upheld by the Federal Court. However, the Federal Court examined only the aforementioned determinations made, pursuant to Swiss law, by the lower court in regard to the agreement. The lower court's reasoning relating to the CISG was not challenged by the appellant.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 39(2)

Classification of issues using UNCITRAL classification code numbers:

39B4 [Cut-off period of two years: relationship to statutory limitation/prescription period]

Descriptors: Lack of conformity notice, timeliness ; Statute of limitations

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Editorial remarks

Excerpt from S.A. Kruisinga, "(Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?", Intersentia (2004) 100-101, 103-104

"Because the CISG does not contain any rules on prescription, a situation could arise in which, even though the two-year period under art. 39(2) CISG has not yet lapsed, the buyer may have lost its claim through national prescription laws, a short national prescription period may thus limit the rights of the buyer more extensively than art. 39(2) CISG. German law, for example, used to contain a limitation period of six months from delivery for contracts for the sale of movable goods, 477(1) of the former BGB (German Civil Code). ... In order to prevent the former prescription period from thwarting the provisions of the CISG, art. 3 of the German Act of July 1989, by which the Federal Republic of Germany acceded to the CISG, provided that 477 of the former BGB was applicable to the buyer's limitation of claims based on lack of conformity in the CISG, but that the period of limitation only began to run from the day on which the buyer gave notice of such lack of conformity to the seller in accordance with art. 39 CISG. ...

[...]

"[In this case,] the Handelsgericht des Kantons Bern followed the approach of the German legislator. It referred to [a different approach taken by] the Cour de Justice de Genève [in a decision handed down on 10 October 1997] but held that it is possible to criticize that decision ... [Like the German legislator,] [t]he [Bern] court held that the one-year limitation period in art. 210(1) CO [the Swiss statute of limitations] will only start to run once the buyer has given notice to the seller concerning the lack of conformity. ..." [citations omitted]

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

German: [1/2002] Swiss Review of International and European Law (SRIEL) 142 et seq.

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/956.pdf>; Schweizerische Zeitschrift für Internationales und Europäisches Recht / Revue suisse de droit international et de droit européen (2002) 142-145

Translation: Unavailable

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. 29

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Pace Law School Institute of International Commercial Law - Last updated December 9, 2009
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