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CISG CASE PRESENTATION

Germany 12 November 2001 Appellate Court Hamm (Memory module case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/011112g1.html]

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

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Case identification

DATE OF DECISION: 20011112 (12 November 2001)

JURISDICTION: Germany

TRIBUNAL: OLG Hamm [OLG = Oberlandesgericht = Provincial Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 13 U 102/01

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

CASE HISTORY: 1st instance Landgericht Bielefeld (11 O 46/00) 27 March 2001 [affirmed]

SELLER'S COUNTRY: China (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Computer parts (Memory modules)


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7 ; 8(1) ; 9(2) ; 11 ; 14 ; 18 ; 25 ; 31(a) ; 33(a) ; 47 ; 49 ; 64 ; 74 ; 78 [Also cited: Articles 2 ; 54 ; 58(1) ; 59 ; 61(1) ; 79(5) ]

Classification of issues using UNCITRAL classification code numbers:

7A ; 7A3 [Principles of interpretation; Observance of good faith];

8A [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct];

9D2 [Usages and practices: usages impliedly made applicable to contract];

11A [Writing or other formality for conclusion of contract not required];

14A [Criteria for an offer (basic criterion: intention to be bound in case of acceptance];

18A [Criteria for acceptance of offer];

25B [Definition of fundamental breach: substantial deprivation of expectation, etc.]

31A [Place for delivery: contracts involving carriage of goods];

33A [Time for delivery: on date fixed by or determinable from contract];

47A [Buyer's right to fix additional final period for performance];

49A1 ; 49A21 [Buyer's right to avoid contract (grounds for avoidance): fundamental breach of contract; Seller does not deliver or refuses to deliver within additional period set under art. 47];

64A1 [Seller's right to avoid contract (grounds for avoidance): fundamental breach of contract];

74A [General rules for measuring damages: loss suffered as consequence of breach];

78A [Interest on delay in receiving price or any other sum in arrears]

Descriptors: Interpretation of Convention ; Good faith ; Intent ; Usages and practices ; Formal requirements ; Offers ; Acceptance of offer ; Fundamental breach ; Avoidance ; Nachfrist ; Delivery ; Incoterms ; Burden of proof ; Damages ; Legal costs ; 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

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1430.pdf>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Hamm

12 November 2001 [13 U 102/01]

Translation [*] by Jan Henning Berg [**]

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

AWARD

The appeal submitted by Defendant [Buyer] against the judgment rendered by the District Court (Landgericht) Bielefeld, 2nd chamber on commercial matters) on 27 March 2001 is denied. [Buyer] bears the costs of the appellate proceedings.

The judgment is provisionally enforceable. [Buyer] may avert any judicial enforcement by [Seller] by providing a security deposit of 120% of the amount subject to enforcement unless [Seller] itself previously deposits a security in this amount. Both parties may effect their security deposit through an unconditional, unlimited, self-debt bail put at a large German bank, a public savings bank or cooperative society bank.

The judgment imposes upon [Buyer] an obligation of more than Deutsche Mark [DM] 60,000.

FACTS

[Seller] has sued [Buyer] for payment of the purchase price for delivered memory modules as well as for reimbursement of attorney's fees. The parties are dealing with computer parts. They have had prior business relations.

Following a telephone conversation between the CEO of [Buyer] and employee D. of [Seller] on 3 January 2000. [Buyer] ordered 1,000 memory modules at a price of US $69 and US $138 per piece (total price US $207,000, for details see exhibit K1) by fax of the same day. The fax was time stamped 12:08 hours local time Germany [19:08 hours China time]. The fax included the statement "as soon as possible".

These memory modules are dealt on the basis of daily prices and have been undergoing considerable fluctuations in price.

By fax dated 4 January 2000, 12:28 hours local time Germany [19:28 hours China time], [Seller] received a confirmation from [Buyer]'s bank stating that [Buyer] had effected payment of a sum in order to settle an unpaid invoice from a previous delivery of 28 December 1999 (sheet 227).

[Seller] fulfilled [Buyer]'s request by surrendering the purchased goods to the carrier O. domiciled in I. [China] which was supposed to deliver the goods to [Buyer]. The goods, an invoice and the transport documents (exhibit K4) arrived at the [Buyer]'s location on 7 January 2000.

On 7 January 2000, 17:17 hours local time Germany, [Buyer] sent another fax to [Seller] containing the order placed on 3 January 2000 in which "order as soon as possible" was crossed out. The fax contained the new note "cancelled" (exhibit K3). In addition, [Buyer] returned the delivered memory modules to the customs warehouse.

By letter dated 29 January 2000 (exhibit K5), [Seller]'s attorneys had requested [Buyer] to settle the invoiced amount by 4 February 2000. Subsequently, they conducted telephone talks with employee C. of [Buyer] on behalf of their client, [Seller]. Later, there were also negotiations with [Buyer]'s attorneys. Represented by their attorneys, the parties agreed on a partial settlement on 16 and 17 February 2000 to the effect that [Buyer] would accept the goods and pay a price of US $39 and $80 per piece. Both parties would then go on to seek to resolve how to settle the remaining sum (for details see exhibits K6 and K7). On the basis of this partial settlement, [Buyer] paid [Seller] the sum of US $118,000 on 6 March 2000.

[Seller]'s attorneys invoiced the sum of DM 5,385 with respect to the abovementioned tasks. [Seller] settled these fees. For details on the exact calculation of costs, reference is directed to the memorandum of 3 April 2000 (sheets 15 et seq.).

In its legal action, [Seller] sought from [Buyer] payment of the remaining portion of the purchase price that was unpaid after the partial settlement. [Seller] also sought reimbursement of its attorneys' fees.

[Seller]'s action in First Instance

[Seller] alleged that the sales contract was still in effect. It has asserted:

      The parties had not agreed upon a specific, strict time limit for performance. Although deliveries to [Buyer] had been effected on short notice on previous occasions, this was only possible because the credit insurance concluded between [Seller] and company I. for transactions with [Buyer] (total amount US $260,000) had not been fully utilized. By 3 January 2000, [Buyer] had failed to pay another claim worth US $199,500. Therefore, the credit line had been insufficient to cover the new delivery as well. [Buyer] had been aware of the credit insurance and of the fact that delivery of any goods ordered would only be possible if the amount at stake would not exceed the credit line. Witness D. had pointed out these facts during a telephone conversation with [Buyer]'s CEO on 4 January 2000. After receipt of the payment confirmation on 4 January 2000, the goods had been surrendered to the carrier on 5 January 2000 and the invoice had been issued (for details see exhibit K4). From that time until the delivery was returned with the note "cancelled", [Buyer] had neither set any time limits nor had it declared avoidance of the contract.

[Seller] has requested the Court:

  1. To order [Buyer] to pay US $ 89,000 plus 5% interest since 7 March 2000 as well as 5% interest on $207,000 for the time between 9 January 2000 until 6 March 2000; and

  2. To order [Buyer] to pay DM 5,385 plus 5% interest since 12 April 2000.

[Buyer]'s response in First Instance

[Buyer] requested the Court to dismiss [Seller]'s action. [Buyer] asserted that it had properly avoided the contract. [Buyer] argued:

      According to the content of the contract, [Seller] had had a maximum time limit of two to three days in order to effect delivery (meaning that goods had to arrive at [Buyer]'s premises). The transport documents were to be sent immediately. During the telephone call of 3 January 2000, [Buyer]'s CEO had pointed out that it needed prompt delivery. The delivery within the proposed time was common due to the highly speculative price. It had also been in accordance with a general trade usage and the practices between the parties with respect to the performance of their transactions in the past. In this respect, [Buyer] has referred to the exhibits attached to its written pleading submitted on 28 June 2000. These exhibits indicate how previous orders of computer parts had been performed.

On 4 and 5 January 2000, [Buyer]'s CEO had made telephone inquiries to [Seller] about the air cargo documents. Mr. D. had then explained that the goods had already been surrendered to the carrier on 3 January 2000. During the call on 5 January (a Wednesday), [Buyer]'s CEO had also pointed out that either the goods or at least the transport documents needed to be received on the same day. Otherwise, the price could not be accepted anymore and the parties would have to enter into new negotiations. During a telephone call on 6 January 2000, Mr. D. of [Seller] explained to employee C. of [Buyer] that he had surrendered the goods to the carrier immediately on 3 January 2000, respectively, 4 January 2000. Mr. C. thereupon stated that in case delivery would not be finished, [Buyer] would cancel the order on the same day, because the price would be unacceptable. Mr. C. had already cancelled the contract on 6 January 2000 via e-mail.

[Buyer] has further challenged the adequacy of [Seller]'s claim for attorneys' fees.

RULING IN FIRST INSTANCE

The District Court (Landgericht) approved the [Seller]'s action and held that the United Nations Convention on Contracts for the International Sale of Goods (CISG) governed the legal relations between the parties. The District Court held that:

   -    [Buyer] had no right to declare avoidance of the contract under Art. 49 CISG because the mere excess of the designated time for delivery did not constitute a fundamental breach of contract.


 
   -    An appropriate additional period of time for delivery has not been granted by [Buyer];
 
   -    The attorneys' fees were appropriate in their amount and had to be reimbursed by [Buyer] due to its delayed payment of the purchase price under Arts. 61(1), 74 CISG.

POSITIONS OF THE PARTIES

Position of [Buyer]

[Buyer]'s appeal challenges the judgment rendered by the District Court (Landgericht). For details, reference is made to pages 112-115. [Buyer] refers to its submissions to the Court of First Instance and the evidence provided to that Court and submits the following as a supplement thereto:

      The immediate sending of transport documents had been essential in order to provide sufficient security.

The contract had already been concluded orally during the telephone call of 3 January 2000. Witness D. had promised immediate delivery. It is further contested that delivery of the goods to carrier O. was made on 5 January 2000 at 24:00 hours. As witness D. had promised several times and contrary to the truth that delivery of the goods had already been effected by 3 January 2000, respectively on 4 January 2000, [Seller] had kept [Buyer] from submitting an additional time for performance earlier. [Seller] could therefore not rely on a failure to grant such additional time under aspects of good faith. On 6 January 2000, witness C. had already declared to witness D. that the contract would be cancelled. The contract provided that [Seller] would only fulfil its obligation to deliver by surrendering the goods to the Quick Cargo Service company in Germany.

Attorneys' fees were not recoverable because they would fall within the personal scope of duties of the creditor.

[Buyer] requests the Appellate Court to reverse the judgment of the Court of First Instance and to dismiss [Seller]'s action.

Position of [Seller]

[Seller] asks the Court to dismiss [Buyer]'s appeal. [Seller] reiterates its submissions made in the First Instance in order to defend the District Court judgment.

For further details of the parties' submissions, reference is made to the written pleadings exchanged and the exhibits attached thereto.

The Court has taken evidence by hearing witnesses C. and D. as well as by hearing CEO T. of [Buyer]. For the results of the taking of evidence, reference is made to the session protocol of 12 November 2001.

REASONING OF THE COURT

[Buyer]'s appeal is admissible but not justified.

A. [Seller's claim for the residual purchase price]

[Seller] is entitled to claim payment of the residual purchase price of US $89,000 from the sales contract according to Arts. 54, 58(1), 59 CISG.

      I. [Application of CISG]

      The legal relations between the parties are governed by the CISG.

The District Court has applied the CISG. This is not contested by either party. At least by this conduct the parties have made an implied choice of law (Art. 27 EGBGB [*]) in favor of the CISG (cf. to this issue BGH [*] NJW [*] 1991, 1292 (1293)).

Application of the CISG is also possible under Art. 1(1)(a) CISG. Both Germany and China are Contracting States to the CISG (cf. Palandt/Heldrich, Art. 28 EGBGB para. 7). The present contract is for the sale of goods, the parties have their places of business in the States mentioned above. Exceptions as set out in Art. 2 CISG do not apply.

      II. [Valid conclusion of sales contract]

      The parties have concluded a sales contract on 3 January 2000 which provided as time of delivery "as soon as possible".

Art. 11 CISG provides that a sales contract may be concluded using any form. It requires two corresponding declarations of intent of the parties (Arts. 14, 18 CISG).

[Seller] has declared its offer to conclude a contract for the sale of the memory modules orally by way of witness D. This offer was accepted by [Buyer]'s written order of 3 January 2000.

Both the CEO of [Buyer] and witness D. have correspondingly testified that during the second telephone call they had reached consent about the contents of the contract. [Seller] made an offer to conclude a sales contract according to [Buyer]'s proposals.

The only further requirement to establish the legal effect of the agreement was the written order placed by [Buyer] upon [Seller]'s request. Concerning a particular time of delivery, the written order merely contained the note "as soon as possible". Any further confirmation of this order by [Seller] was neither required nor would it have been in accordance with the parties' practices during previous transactions.

      III. [No avoidance of contract by [Buyer]

      Contrary to [Buyer]'s view, the contract was not avoided under Art. 49 CISG. There is no existent legal basis for [Buyer] to avoid the contract pursuant to Art. 49(1)(a) or (1)(b) CISG.

            1. [No avoidance under Art. 49(1)(a) CISG]

            A basis for avoidance of the contract arises under Art. 49(1)(a) CISG if the failure by the seller to perform any of his obligations under the contract or the CISG amounts to a fundamental breach of contract. It is irrelevant according to Art. 79(5) CISG whether or not the seller is responsible for the failure to perform.

Despite the special provision on the fixing of an additional period of time to perform in case of non-performance laid down in Art. 49(1)(b) CISG, Art. 49(1)(a) CISG applies as well to contracts containing precisely determined time limits for performance where the granting of additional time would not make sense (Schlechtriem/Huber, Kommentar zum Einheitlichen UN-Kaufrecht, 3rd ed., Art. 49 para. 5; Honsell/Schnyder/Straub, Kommentar zum UN-Kaufrecht, Art. 49 para. 14 with further references, also mentioning the contrary view).

                  a) [Buyer] may not successfully rely on a breach of contract by [Seller], namely its exceeding a time limit for performing the contract.

                        aa) [Seller] was obliged under Art. 31(a) CISG to surrender the goods to the first carrier, but was not required to hand over the memory modules in Germany.

Contrary to [Buyer]'s opinion, the mere fact that the goods were supposed to be handed over to a particular carrier in Germany cannot in itself expand [Seller]'s obligation's until the handing-over in Germany. The application of Art. 31(a) CISG is supported by the fact that [Buyer] specifically indicated in its order which companies should effect the air transport, which would have been superfluous if air transport had fallen within the [Seller]'s scope of obligations. Furthermore, Art. 31(a) CISG applies because [Seller]'s invoices have indicated the delivery clauses "FOB/FCA". These constitute internationally and officially acknowledged clauses for delivery (INCOTERMS) which resemble Art. 31(a) CISG in their content (cf. Schlechtriem/Huber, Art. 31 para. 78). Since the previous deliveries made by [Seller] had constantly indicated these clauses, they constitute a practice which has been established between the parties and therefore part of the present contract. At any rate, it can be deduced from those clauses that the parties have not agreed upon an obligation to deliver which would deviate from the statutory provision of Art. 31(a) CISG.

                        bb) However, [Seller] had been obliged according to the practices established between the parties to perform its obligations at the latest on the day following the placing of the written order at the latest according to Central European Time.

Pursuant to Art. 33(a) CISG, the time for effecting delivery must be determined from what can be interpreted from the contract.

The interpretation of the contract follows Art. 7 et seq. CISG. Contractual agreements may be concluded without any particular form (Art. 11 CISG). According to Art. 8(1) CISG, the corresponding intent of the contracting parties is decisive, and not any deviating objective meaning of declarations (Schlechtriem/Junge, Art. 8 para. 5). In order to supplement interpretation of the contract, Art. 9(1) CISG states that the parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. According to Article 9(2) international usages of which the parties knew or ought to have known are only to be taken into account at a secondary level.

The way in which previous transactions have been processed between [Seller] and [Buyer] shows that transport documents were at the latest sent on the day subsequent to the day the order was placed. These documents indicated that the goods were surrendered to the carrier and that delivery would be effected within three days at the latest (with the exception of one delivery over New Year's Eve (cf. sheet 57). The written orders available from the record do not show that there had always been the same time limit for delivery. As, however, deliveries had been effected within the short time designated above, it can be held that -- as alleged by the [Buyer] -- deliveries on short notice formed part of the practices that the parties have established between themselves.

                        cc) However, according to the principle of good faith -- which is to be observed in terms of the CISG (cf. Schlechtriem/Ferrari, Art. 7 paras. 49 et seq. -- [Buyer] may not rely on the fact that the actual handing over of the goods to the first carrier was effected up until 5 January 2000 at 12:00 hours noon, local time at I [in China].

                              (1) The Court adheres to the testimony given by witness D. which confirms [Seller]'s submissions. He stated that he had made a telephone statement that delivery could not be effected until a former obligation would be performed and that this delay was caused by exceeding the [Buyer]'s credit line. A payment confirmation would have had to be presented by [Buyer]'s bank. Thereupon, [Buyer] had sent its own payment confirmation and later a confirmation issued by its bank via fax. The latter confirmation reached [Seller] only after working hours in I [China]. Therefore, witness D. had taken note of the confirmation on the morning of 5 January 2000. In due course, delivery of the goods had been effected at 12:00 hours noon.

The Court holds that witness D. made credible statements.

It is true that his testimony is in contrast to what T. as CEO of [Buyer], has stated. Furthermore, it must be considered that D. is still an employee of [Seller], meaning that he might be biased in such a way which would have impact on his testimony. Still, there are no reasons to cast doubt upon D.'s testimony for the following reasons:

      This witness' testimony corresponds to the factual circumstances. Undisputedly, [Buyer] had not yet settled the former claim by 3 January 2000. Payment and the issuance of payment confirmations were ordered only on 4 January 2000. The witness was able to present copies of the payment confirmations (sheets 226, 227). Furthermore, the initial situation supports the view that witness D. explained the situation to CEO T. of [Buyer] and that he requested a payment confirmation. [Seller] -- as a businessman -- had a natural interest in the proper processing of the transaction provided that the impediment of excess of the credit line was overcome. [Seller] also had been under tight time pressure because the established practices provided for a quick performance of the contract. Furthermore, there is no reason evident as to why witness D. should not have explained the reasons for the delay in delivery to CEO T. who also stated that a telephone conversation had occurred on 4 January 2000.

It is also well comprehensible that [Seller] effected delivery on 5 January 2000 at 12:00 hours noon. The indication apparent in the documents of delivery "12 pm" does not contradict the witness's statements. The interpreter for English language has explained during the Court's session that "12 pm" was not a common reference to midnight (24:00 hours). He had no reasonable understanding of this phrase and it must not be one which is used particularly in I [China].

The delivery at 12:00 hours noon is further in accordance with the note in the delivery documents (exhibit K4). This note provided that delivery should still be effected on 5 January 2000 ("please arrange today, 5th January 2000, shipment"). It is evident that this would not have been possible if the modules had been delivered at 24:00 hours.

                              (2) [Buyer] has acknowledged the request submitted by [Seller] to effect delivery only after payment was confirmed. Therefore, [Buyer] may not rely on any delay in performance by [Seller] because it then acts in contradiction to its own previous conduct which is not permissible under good faith.

It was up to [Buyer] to follow the demands set by [Seller]. Likewise, [Buyer] could have insisted on a delivery still on 4 January 2000 Central European Time and could have announced avoidance of the contract in case of non-performance. It must have been obvious for [Buyer] that under consideration of the time difference of +7 hours between Central European Time and the time in I. [China] as well as given the business hours of [Seller], any delivery by 4 January 2000 would not have been possible. Nevertheless, [Buyer] approved [Seller]'s request which made unmistakably clear that any delays in delivery until that point would not threaten the existence of the contract. [Seller] relied on this approval when it surrendered the goods after payment was made. Complying with the contractual need for processing as quick as possible, [Seller] effected delivery of the memory modules immediately after the payment was confirmed.

[Buyer] infringes the principle of good faith and acts contrary to its former behavior if it relies on performance on 5 January 2000 at 12:00 hours China time as a basis for avoidance of the contract.

                  b) Even if -- contrary to the above opinion of the Court -- [Buyer] might have been able to rely on an excess of the required time for delivery, there would still be no legal basis for avoidance of the contract under Art. 49(1)(a) CISG. At any rate, the breach of contract was not fundamental as required by that provision. The District Court (Landgericht) has properly held:

      Under Art. 25 CISG, a breach of contract is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.

A fundamental breach of contract will be assumed if the parties have expressly concluded a firm deal because in this case the parties have a common intent that the transaction as a whole be dependent on the compliance with the designated time limit of delivery (cf. Schlechtriem/Schlechtriem, Art. 25 para. 18; Schlechtriem/Huber, Art. 49 para. 5; Kappus, NJW [*] 1994, 984 (985)). Non-compliance with a specified time for delivery forms a fundamental breach of contract only if exact compliance with that time is of particular interest to the buyer. It must be recognizable for the seller at the time of conclusion of the contract that the buyer would prefer no delivery at all to a delayed delivery (Schlechtriem/Huber, ibidem; similarly Honsell/Schnyder/Straub, Art. 49 para. 26).

The parties have not designated any firm date; even on the basis of [Buyer]'s submissions, neither in the contract at hand nor in previous contracts would they have expressly agreed that compliance with a time limit for delivery be crucial for the existence of the contract as a whole. The formulation "as soon as possible" as contained in [Buyer]'s order does not point towards a firm deal, as well. Other than, e.g., the term "at the latest", it does not sufficiently indicate the importance of delivery in time.

The mere agreement on a firm time for delivery in itself is insufficient in order to establish a firm deal (cf. Palandt/Heinrichs, 60th ed., 361 BGB [*] para. 2). It must be considered in this respect that a failure to comply with a set time for delivery already gives rise to damages claims in favor of the buyer under Art. 74 CISG. A buyer has this remedy at hand. Consequently, [Buyer] would have been entitled to claim the damage which had accrued as a consequence of the delayed delivery.

Merely the commercial context remains as an argument in favor of [Buyer] and that compliance with a time limit for delivery was of essential importance to the existence of the contract.

[Buyer] asserts that memory modules cannot be compared with seasonal goods, in which case a delayed delivery causes a loss of marketability of the goods as a whole.It is rather referred to the fact that the modules have a running market price which was undergoing strong fluctuations and that [Buyer] was obliged to immediately effect delivery to its customers.

The District Court (Landgericht) has properly held that these reasons were insufficient to be given legal consideration.

In contrast to seasonal goods, a failure to comply with a time for delivery of goods that undergo strong price fluctuations does not necessarily imply a loss of their marketability or reduced marketability. It is possible that a delayed delivery results in an advantage for the buyer if the market prices have increased in the meantime. This also applies to memory modules and is evident from the testimony of witness C. as well as from [Buyer]'s overview on the prices (cf. sheet 28). In such case, it cannot be argued that the buyer would want no delivery at all rather than a mere delay. In a case of delayed delivery -- as mentioned before -- the buyer is protected by law since it may claim damages. [Buyer] improperly argues that the judgment of the German Federal Supreme Court (Bundesgerichtshof) of 12 December 1990 (NJW [*] 1991, 1292) had determined a trade usage according to which a sale of mass goods that typically undergo strong price fluctuations constituted firm deals. The judgment is based on facts that cannot be compared to this case. That case was concerned with seasonal goods (winter clothing) and the insertion of a "C&F" clause into the contract. Furthermore, the German Federal Supreme Court (Bundesgerichtshof) has not determined that any trade usage with respect to the above clause existed. Instead, it had repealed the judgment and remanded the case to the previous instance because the appellate court had not followed up on an assertion made by the defendant.

[Buyer] has neither argued nor has it tried to take evidence on the issue that a trade usage existed which would provide that sales of memory modules would constitute firm deals. [Buyer] has merely alleged that an immediate delivery of memory modules was in accordance with a trade usage and that it was common in the industry.

Finally, [Buyer] must take responsibility for the fact that it had omitted to reach an unequivocal agreement with [Seller]. By a corresponding clause in its written order, [Buyer] could have easily documented the importance of delivery in time for the performance of the contract as a whole.

            2. [No avoidance under Art. 49(1)(b) CISG]

            [Buyer] also had no right to avoid the contract under Art. 49(1)(b) CISG. This holds true even if -- contrary to the Court's opinion laid down at item 1.a) -- good faith considerations would not hinder avoidance of the contract.

Under this provision, a buyer may avoid the contract in case of non-delivery, if the seller does not deliver the goods within an additional period of time fixed by the buyer in accordance with Article 47(1) CISG or if the seller declares that he will not deliver within the period so fixed.

Art. 49(1)(b) CISG only governs cases of non-performance in which the obligation to deliver is determined by Art. 31 CISG or specific rules in the sales contract (Schlechtriem/Huber, Art. 49 paras. 18, 19).

                  a) According to the statements made by CEO T. of [Buyer], he had talked with witness D. on the telephone on 5 January 2000 between 9:00 hours and 10:30 hours local German time [between 16:00 hours and 17:30 hours China time]. T. had demanded that the goods should be available in Germany on the same day.

This did not constitute a proper setting of an additional time to perform. As already pointed out, [Seller] was merely obliged to hand over the goods to the carrier. That had already occurred at the time of the telephone call.

On the same basis, the request purportedly articulated by witness C. on 6 January 2000 to make the goods available on that same day could not have had legal consequences for [Seller].

                  b) In any case, [Buyer] bears the burden to prove that it had properly set an additional period of time for performance (cf. for the burden of proof: Honsell/Schnyder/Straub; Art. 49 para. 125). [Buyer] has not brought sufficient proof that additional periods had been set on 5 and 6 January 2000.

The statements by CEO T. and witness C. are put in dispute by the testimony of witness D. He has stated that on 5 and 6 January 2000 there had not been any telephone contact with [Buyer].

[Buyer] failed to present any documents which would have supported the statements of its employees. It failed to present a copy of the e-mail in which the cancellation of the contract was purportedly declared. Witness C. was unable to recall the content of the e-mail.

If the alleged telephone calls on 5 and 6 January 2000 had really occurred -- meaning at a time when the memory modules had already been handed over to the first carrier -- it would have been obvious for witness D. to contact the shipping department of [Seller] in order to effect the transmission of transport documents. In this scenario, it would have been of advantage to [Seller] to bring proof of the delivery of the goods. However, the original documents have only reached [Buyer] with the delivery of the goods.

With respect to the above witness statements and the statements made by CEO T. concerning the time and content of the telephone calls, which were placed during the usual course of business, it is to be considered that those events were not particularly remarkable ones. Therefore, it cannot be excluded that -- probably unconsciously -- facts were wrongly recollected.

      IV. Subject to a subtraction of US $118,000 which had already been paid in the course of the partial settlement, [Seller] is entitled to collect from [Buyer] the residual sum of US $89,000.

      V. [Buyer] has ceased during the oral hearing to rely on a set-off with respect to US $12,000.

B. [Recoverability of Seller's attorneys' fees]

[Seller] is further entitled to claim damages under Arts. 61(1)(b), 74 CISG in order to recover its attorneys' fees in the amount of DM 5,385.

      I. [Breach of contract by Buyer]

      [Buyer] has committed a breach of contract in terms of Art. 64(1)(b) CISG and established its liability when it unlawfully announced the avoidance of the contract and did not settle the purchase price claim under Art. 58 CISG.

      II. [Recoverability of attorneys' fees]

Costs of extra-procedural legal advice are recoverable under Art. 74 CISG if these constitute appropriate and necessary expenses for obtaining legal protection (Schlechtriem/Stoll, Art. 74 para. 19 with further references at footnote 88).

It was helpful for [Seller] to commission attorneys in order to enforce its claims. In that respect, it constituted an adequate exercise of the legal mandate when the attorneys entered into negotiations with the opponents which finally resulted in an economically reasonable conclusion of a partial settlement.

      III. [Appropriateness of the fees]

      In line with the District Court (Landgericht), the Appellate Court holds that the attorneys' fees were appropriate.

            1. For their extra-procedural work, [Seller]'s attorneys were entitled both to an expense charge under 118(1)(1) BRAGO [*] and to a negotiations charge under 118(1)(2) BRAGO.

The calculation of the fees as set out on pp. 2 and 3 of the memorandum of 3 April 2000 (sheet 16) is properly done in consideration of a partial apportionment of the expense charge to the procedural charge under 118(2) BRAGO.

            2. The determination of both frame charges to 10/10 is in compliance with the lawful discretion of an attorney as stated in 12(1) BRAGO.

It can be assumed that [Seller] as a commercial company has assets and income rates which by far exceed the average. Moreover, the present case is most difficult to deal with on its legal issues. The case could only be properly assessed after the attorneys had made themselves familiar with the CISG as a specific law. Even on the factual basis, the case contained considerable problems. The attorneys' necessary work was clearly above average in terms of both charges applied. There had been several conference calls with the opponents. It only added to the extensive material at hand and the specific law applicable that correspondence with [Seller] needed to be conducted in English.

C. [Seller's claim for interest]

[Seller] is entitled to interest in the amount adjudicated by the District Court (Landgericht).

      I. Both parties have agreed during the oral hearing before the Court to an interest rate of 5% per annum as stated in 352 HGB [*].

      II. With respect to the claim for the purchase price of US $207,000 in the first place, Art. 78 CISG obliges [Buyer] to effect interest since maturity of the claim. The claim has become mature on 9 January 2000, after expiry of the time limit for payment of three days as determined in the invoice of 5 January 2000.

      III. With respect to the claim for damages, [Buyer] has been in arrears under 284(1) BGB [*] since the servicing of the written pleading on 12 April 2000.

D. [Ancillary decisions]

The decision on costs is based on 97(1) ZPO [*]. The decision on provisionally enforceability is based on 708 No. 10, 711 ZPO.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of China is referred to as [Seller] and Defendant of Germany is referred to as [Buyer]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM]. Amounts in the currency of the United States of America (US dollars) are indicated as [US $].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGH = Bundesgerichtshof [German Federal Supreme Court]; BRAGO = Bundesrechtsanwaltsgebührenordnung [former German law on attorney's fees]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the conflict of laws]; HGB = Handelsgesetzbuch [German Commercial Code]; NJW = Neue Juristische Wochenschrift [German law journal]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** 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 and 4th Willem C. Vis (East) Moot.

*** 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 June 27, 2007
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