Switzerland 17 January 2002 Commercial Court Bern (Grapefruit seed extract case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020117s1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 8805 FEMA
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Switzerland (defendant)
BUYER'S COUNTRY: Germany (plaintiff)
GOODS INVOLVED: Grapefruit seed extract
SWITZERLAND: Commercial Court of the Canton of Bern (Grapefruit seed extract case) 17 January 2002 [8805 FEMA]
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/87],
CLOUT abstract no. 879
Reproduced with permission of UNCITRAL
The Swiss defendant supplied grapefruit seed extract to the plaintiff, whose headquarters were in Germany, promising that the product was free from preservatives. The promise proved untrue and the plaintiff was sued in a Berlin court by its main customer, whose claim was successful. The plaintiff in turn sued the defendant for damages.
The court considered at length the question of giving notice of defects within the meaning of article 39(1) CISG. It established that the plaintiff had sent timely notification to the defendant of the contents of an expert report according to which the goods contained a specific preserving agent.
The court then examined the plea of limitation advanced by the defendant. Reaffirming an earlier ruling, it observed that, in principle, statutory limitation was assessed on the basis of the applicable national law. However, a national limitation period should not shorten the period specified in article 39(1) CISG. Consequently, the one-year limitation period stipulated in Swiss law for warranty proceedings in respect of defects in goods was computed, not from the moment of delivery to the buyer, as was customary, but only from timely notice of the defects, in accordance with article 39 CISG.Go to Case Table of Contents
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4B [Scope of Convention (issues excluded): limitations of actions]; 39A ; 39B [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Cut-off period of two years]; 40A [Seller's knowledge of lack of conformity]
4B [Scope of Convention (issues excluded): limitations of actions];
39A ; 39B [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Cut-off period of two years];
40A [Seller's knowledge of lack of conformity]
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CITATIONS TO OTHER ABSTRACTS OF DECISION
German: Recht, Zeitschrift für juristische Ausbildung und Praxis 48
CITATIONS TO TEXT OF DECISION
Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/725.htm>; see also recht, Zeitschrift für juristische Ausbildung und Praxis (2003) 48
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English:  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 29Go to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
17 January 2002 [No. 8805 FEMA]
Translation [*] by Kirsten Stadtländer [**]
FOUND AND CONSIDERED
I. 1. With the claim of 25 April 2000, Plaintiff [Buyer] asserted and gave reasons for the following legal request: "Defendant [Seller] has to be ordered to pay [Buyer] the amount of Deutsche Mark [DM] 61,147.11 plus interest at a rate of 4% from 26 November 1997 until 15 February 1999 and at rate of 12.75% since 16 February 1999."
2. In its response of 4 December 2000, [Seller] demanded the rejection of [Buyer]'s claim and asserted -- all of that for costs and compensation -- as a counterclaim the following legal request: "[Buyer] has to be ordered to pay [Seller] Swiss francs [Fr.] 41,015.35 plus interest at a rate of 5% since legally payable."
3. The representatives of the parties confirmed these requests in the first submissions of the parties at the main session of 16 August 2001 (p. 80). ... The hearings that followed led to a proposal of settlement to which the parties agreed with the reservation of withdrawal until 16 September 2001 (p. 95). The representative of [Seller] declared for the record that the counterclaim was withdrawn, even in the event the [Buyer] revoked the settlement (p. 96).
By writing of 10 September 2001, counsel H in the name of [Buyer] revoked the settlement of 16 August 2001 (p. 97).
In the successive session of 17 January 2002, Mr. T D and Mrs. R W were questioned as witnesses to the case (p. 122 et seq.). Afterwards the proceedings for the preservation of evidence was closed. The representative of [Seller] again expressly confirmed that the [Seller]'s counterclaim was to be considered as withdrawn.
4. The dispute that is the basis of the present proceedings results out of a contract of sale that was concluded between [Buyer] an individually owned firm domiciled in Germany and [Seller[ which is registered in the commercial register in Switzerland. The dispute between the parties therefore constitutes an international legal relationship so that the Federal Law of International Private Law (IPRG) is to be applied concerning the jurisdiction and the applicable law. In Art. 1 (2) IPRG the application of international treaties is reserved. Germany as well as Switzerland are Contracting States to the Lugano Convention. This determines the general forum to be in the country of domicile of the seller (Art. 2 (1) Lugano Convention. Due to the lack of a diverging agreement between the parties, [Seller]'s country, Switzerland, has international jurisdiction. The local jurisdiction, the subject matter jurisdiction and the functional jurisdiction of the Handelsgericht [Commercial Court] is present (Art. 5 Code of Civil Procedure). The jurisdiction is furthermore not contested. (see p. 28 II of the response).
II. a) The claim is based on the following, so far not contested, facts:
[Buyer] ordered from [Seller] the product [hereinafter referred to as "G-E" or "extract G-E"]; [Seller] guaranteed the ecological compatibility and the cleanness of the product. Due to questions of purchasers of [Buyer], it additionally requested a written confirmation by [Seller] concerning the absence of additives and preservatives. [Seller] therefore demanded such an assurance from its suppliers, which it then passed on to [Buyer] in its own certificate of 2 April 1997 (KB 4). In that certificate, [Buyer] was expressly assured of the fact that the extract G-E was free of preservatives, especially free of a certain additive [hereinafter referred to as "B or "additive B"].
[Buyer] also passed on the assurance to its purchasers in the wording of the certificate from [Seller] of 2 April 1997. Furthermore, [Seller] had sent [Buyer] an "attestation" from Me. A. on 26 May 1997 (KB 5), to the effect that the G-E did not contain any preservatives.
b) [Buyer] asserts that the confirmations of [Seller] were provable wrong. The product G-E sold to [Buyer] by [Seller] did, against the express and repeated confirmation, contain additive B. This was established by a final judgment of the District Court of Berlin on 12 November 1998 (KB 8). A claim had been asserted against [Buyer] by its main purchaser, company T D in B, and [Buyer] was ordered to pay DM 31,369.42 plus interest of 4% since 26 November 1997 by judgment of 12 November 1998. [Buyer] itself had initially lodged a claim against its purchaser D for payment of the price for the G-E which came from [Seller]. Through the expert examination of the product G-E during the proceedings, it turned out that it contained the additive B, so that [Buyer] was defeated against its purchaser D in the proceedings before the District Court of Berlin.
On 22 June 1988, [Buyer] demanded a third party notice to [Seller] under German law before the District Court of Berlin. This third party notice was served upon [Seller] by court by the Civil Department of the Court District VIII Bern-Laupen on 4 August 1998.
[Buyer] puts forward that it has suffered damages through the assurance of incorrect qualities, which [Seller] is obliged to compensate. [Seller] had delivered goods which, contrary to the [Seller]'s assurance, did not fulfil the requirements of the contract. Although it was provable wrong and finally ascertained by the District Court of Berlin, [Seller] had assured [Buyer] of the absence of additive B. This constitutes a fundamental breach of contract so that [Buyer] has a right to claim damages under Art. 45(1)(b) CISG.
At the present, the damage [Buyer] has suffered as a consequence of the wrong assurance of [Seller], amounts to two items for which the order of [Seller] to the payment of compensation is demanded:
1. Because additive B was not absent from the product, [Buyer] was defeated in the proceedings before the District Court of Berlin of 12 November 1998 and was therefore condemned. The judgment was only based on the deficiency of the G-E through the additive B. Thus, [Seller] owes [Buyer] the amount of the judgment which is DM 31,360.41 plus interest at 4% since 26 November 1997 (KB 6).
2. Furthermore, [Seller] owes [Buyer] the amount of DM 29,786.13 plus interest at 4% since 26 November 1997 and 12.75% since 16 February 1999 as lost profit (KB 10).
c) [Seller] contests that the extract examined by an expert during the proceedings in Berlin was identical with the G-E [Buyer] had purchased from it on 3 April 1997. [Seller] furthermore contests that [Buyer]'s notification of the alleged deficiency was obviously too late. Finally, it asserts that the rights of [Buyer] of guarantee claims are statute-barred for lapse of time of the limitation period.
III. 1. If the objection of limitation of actions by [Seller] is founded or the notification of deficiencies by [Buyer] was too late, the claim would have to be rejected and the question whether [Buyer] suffered damages for which [Seller] is liable could be left open. Therefore, the reasoning of this opinion is structured in the way that the questions concerning the timeliness of the notification and the limitation of actions are examined first.
2. [Seller] puts forward that the notification of deficiencies by [Buyer] was too late.
a) The claim of [Buyer] is based on a contract of sale, of which the parties have their seats in Germany (plaintiff, buyer) and Switzerland (defendant, seller).Thus, the Vienna Convention is applicable (Art. 1 CISG).
According to the CISG, the buyer must give notice of a deficiency "within reasonable time" after it determined the deficiency or should have determined it (Art. 39(1) CISG). Concerning hidden deficiencies, the period of notice begins to run when the deficiencies are actually ascertained. If there are serious hints for possible deficiencies, the buyer is obliged to examine that. If he does not do so, the period of notice starts running at the time when the deficiency could have been determined (Honsell, Commentary to the CISG, Zurich 1996, no. 17 Art. 39). According to Honsell, a period of notice of about a week can be considered as an average orientation which is to be prolonged or shortened with regard to the circumstances (Honsell, loc. cit., no. 21 Art. 39). With regard to German legal practice, others propose a period of about a month (Schlechtriem, Commentary to the CISG, 3d edition, no. 17 Art. 39; also Judgment of the High Court of the Canton Luzern of 8 January 1997 in SZIER [*] 1997, p. 132). However, it is not required that the deficiency of the goods be ascertained by judgment before the notification. At the time of the notification it is often in dispute -- as in the present case -- whether the goods are deficient or not. As shown, in order to keep the period of notification, there need only be actual indications of deficiencies.
There are no requirements as to the form of the notification so that it could even be made by telephone, although this might rise problems of communication and proof (Honsell, loc. cit., no. 24 Art. 39). The content of the notification must exactly specify the non-conformity with the contract. It is sufficient, however, if the seller is informed about the main result of an examination according to the rules, so that he is able to assess the deficiency (Honsell, loc. cit., no. 9 Art. 39).
b) [Buyer's position] [Buyer] at the first hearing of the parties handed in several writings from it to [Seller] with the following shortly summarized content:
|-||Writing of 5 June 1997: [Buyer] asks [Seller] when it can expect the results of the analysis. These had been promised already three weeks before. B insisted on a counter analysis, otherwise the analysis of P would be considered to be decisive (KB 35).|
|-||Writing of 6 June 1997: It declared that payment was held back for the reason that the analysis was necessary first so that [Buyer] was backed up against claims of B (KB 28);|
|-||Writing of 11 June 1997: Mrs. W of B engaged the P L for an analysis. Mrs. W reserved for herself to take legal action for fraud, etc. (KB 29);|
|-||Writing of 13 June 1997: [Buyer] declares that it will take recourse against [Seller] if [Buyer] is sued by Mrs. W. (KB 31);|
|-||Writing of 26 August 1997: [Seller] is again demanded concerning the analysis that it is obliged to deliver and which is still outstanding. There were reclamations concerning different products (KB 32);|
|-||Writing of 23 September 1997: It is declared that the purchaser of [Buyer] is in urgent need for the analysis by [Seller] (KB 33).|
This correspondence clearly demonstrates that, within the period of time from May to June 1997, [Buyer] had already repeatedly communicated with [Seller] concerning the deficiencies and that [Buyer] obviously as well had sent [Seller] the first analysis of P (which proved 2.9% B and was later confirmed by the experts at the court in Berlin) (KB 35). Furthermore, it can be concluded from this that actual indications of the deficiencies of the delivered G-E undoubtedly existed at the latest since the first expert opinion was presented. Moreover, it had been already at this time brought to [Seller]'s attention that it would be held liable by [Buyer] if the latter was sued by its purchaser (B, Mrs. W). In this respect, clear statements by [Seller]'s representative, Mr. D, do not exist, while he at least concedes that he saw the analysis by P already in the year 1997 (record of the main session, p. 90).
Thus, it is established that [Buyer] already informed its supplier B when the first difficulties concerning additive B turned up. The confirmation to the effect that the extract was free of additive B, was very important to it from the beginning. Relevant seems further the fact that the first expert opinion by P is already dated 13 May 1997 and that therefore the confirmation of Me. A (KB 5) was only issued afterwards. Under these circumstances, it can be concluded that this rather unusual confirmation was only issued based on a reclamation of B by [Buyer] to [Seller].
Consequently, the notification of deficiencies must in the end be considered to be on time, to be exact already after the presentation of the first analysis by P after 13 May, but at the latest by the writing of [Buyer] to [Seller] on 11 and 13 June 1997 (KB 29 and 31), in which [Seller] was in clear word made aware that it now had to deliver the analysis and that it otherwise would be held liable for claims of B against [Buyer]. In this writing the non-conformity with the contract was specified in a sufficiently clear manner.
3. [Seller] asserts that the claims of [Buyer] are barred by lapse of limitation period.
a) The chronological order of the facts relevant for the question of the lapse of limitation period shows the following:
The order of extract G-E by [Buyer] from [Seller] took place on 18 March 1997.
In its written assurance of 2 April 1997, [Seller] stated that its product was a purely natural product, which is in particular free of additive B (KB 4).
On 13 May 1997, an expert examination brought the result that the G-E contained 2.9% B. This expert opinion was later confirmed by the court expert opinion in the proceedings before the District Court of Berlin (files Berlin, p. 58).
On 26 May 1997, a new written confirmation by [Seller] followed, this time by its attorney M. A., in which it is stated in the name of [Seller] that the extract G-E did not contain any artificial additives ("s a c" (KB 5)).
In June 1997, numerous correspondence between the parties followed (KB 6, 28, 29, 31, 35). In that correspondence, it was expressed several times that [Buyer] requested another expert opinion and that [Buyer] itself engaged an expert for such an expert opinion after [Seller] obviously did not come up with one. On 10 June 1997, this expert opinion again brought the result that the extract G-E contained additive B (files Berlin, p. 41).
On 11 July 1997, [Buyer] was asked by the attorney of its purchaser, Mr. H D, to deliver extract G-E without additive B (files Berlin, p. 45).
On 7 October 1997, [Buyer] sued its purchaser D for the payment of the price, against which the latter lodged a counterclaim for Fr. 46,000 against [Buyer] at the District Court of Berlin (files Berlin, p. 2 and 30).
The expert opinion H proved on 12 May 1998 that all the samples contained about 3% additive B. On 22 June 1998, [Buyer] gave third party notice to [Seller] during the proceedings before the District Court of Berlin according to German law. The third party notice was served upon [Seller] on 4 August 1998 (KB 9).
On 5 August 1999, [Buyer] handed in the demand for a writ of summons for the attempt of a reconciliation for the present case. The attempt of reconciliation took place on 29 November 1999 in Bern (file 2. 998741 Court District of Bern-Laupten).
b) The claims which [Buyer] asserts are guarantee claims based on a sales contract. These claims become statute-barred within a year according to Swiss law (Art. 210 (1) OR [*]). Under Art. 135 OR, the period of limitation is interrupted and starts anew again if the debtor acknowledges his debt (for example, by paying off, payment of interest, request for an extension of time) or if the creditor begins the enforced collection or hands in a court claim.
c) The claim of [Buyer] is based on a sales contract, to which the parties have their principal seat in Germany (plaintiff, buyer) and Switzerland (defendant, seller). Therefore, the Vienna Convention is applicable (Art. 1 CISG). It still has to be examined whether this influences the question of limitations of actions.
The Vienna Convention itself does not contain any provisions concerning the limitation of actions (Honsell, Commentary of the CISG, Zurich 1996, no. 23 Art 4). Only Art. 39(2) CISG sets forth that the non-conformity of the goods must be notified within two years after delivery. This, however, is not a limitation period but a period of notification of deficiencies (Honsell, loc. cit., no. 1 Art. 39). The special New York Convention on the Limitation Period in the International Sale of Goods of 14 June 1974 regulates these questions between Contracting States of the Convention. According to Art. 8 of the Convention, the period of limitation is four years for all claims based on international sales contracts. Whatsoever, this Convention was not ratified by Switzerland, so that despite the application of the CISG the question of limitation of actions has to be determined according to domestic law. Under Art. 118 (1) of the Swiss Code of International Private Law of 1987 and the referred Hague Convention of 15 June 1955, the domestic law relevant at the seat of the seller at the time of receipt of the order has to be applied, in this case Swiss law (Schlechtriem, Commentary of the CISG, 3d edition, no. 28 Art. 39). As far as Swiss law is applicable, the question of limitation of actions of claims based on a contract of sale is to be determined according to the general provisions of Arts. 127 et seq. and Art. 210 OR [*].
There are difficulties in the application of Art. 210 (1) OR, as there exists a problem also stated by the doctrine, that the guarantee-claim is already statute-barred according to Swiss law, while under the Vienna Convention the notification of deficiencies is still possible (Honsell, Vogt, Wiegand, no. 8 Art. 210). This difficulty arises because Swiss law (Art. 210 (1) OR) in contrast to the Vienna Convention does not recite a maximum period of time for notification of deficiencies, but instead the guarantee-claim is statute-barred one year after the delivery of the goods to the seller (Art. 210 (1) OR).
In Switzerland, it was not only the doctrine that recognized this problem, but also the delegation of the Federal Council for the ratification of the Vienna Convention (BBl 1989, p. 793). The legislators were fully aware of the conflict between the maximum period of time for notification in the international scope (Art. 39(2) CISG: two years) and the short limitation period in the national scope (Art. 210 OR: 12 months) and could have dealt with it in two different manners: by ratification of the above mentioned New York Convention on the Limitation Period in the International Sale of Goods (Art. 8: four years) or by enactment of a Swiss introductory law concerning the Vienna Convention, in which the problem of the conflict of rules could have been solved. However, the Swiss legislators did not do so and left the problem to be solved in individual cases by the courts.
The doctrine is unanimous that Art. 210 OR is not applicable in so far that the application would lead to an undermining of Art. 39(2) CISG (Honsell, Vogt, Wiegand, no. 8 Art. 210). In other words, claims underlying the CISG should not be statute-barred as long as the periods of Art. 39 CISG are not stale by the buyer even if the shorter national period of limitation had already elapsed. How exactly this problem is to be solved is, however, also disputed in the doctrine.
d) In a case in which a judge is concerned with a question that is not solved by the legislation and disputed in the doctrine, he is supposed to decide according to the rule which he would enact as a legislator (Art. 1 (2) ZGB [*]). With regard to that, the solution must be found which is the closest to Swiss legislation (which means to the OR [*]) and at the same time respects the regulation of the Vienna Convention by solving the conflict of rules between Art. 210 (1) OR and the provision later introduced by an international convention (Art. 39 CISG) in the area of international sales contracts.
aa) This question as only been decided once by a Swiss court, namely in the decision of the "Cour de Justice de Genève" [Court of Appeals of Geneva] of 10 October 1997.
The Court of Appeals of Geneva considered it to be adequate to adapt Art. 210 (1) OR to the Vienna Convention, instead of referring to another Swiss rule concerning the limitation of actions (SJZ 1994, No. 6, p. 146). Due to that, the Geneva Court considered it proper to adapt the two periods (Art. 210 (1) OR and Art. 39 CISG) to each other by setting the period of limitation of Art. 210 (1) OR equal to the maximum exclusion period of Art. 39 of the Convention (2 years). Consequently the claim that was brought within the period of limitation of two years as considered adequate by the court was not statute-barred and the judgment of first instance was confirmed with a new reasoning. The result is that the Court of Appeals of Geneva on the basis of Art. 1 ZGB [*] tried to make up what the legislator had failed to solve by extending the short limitation period of Art. 210 OR to the length of the exclusion period of Art. 39(2) CISG.
One attempt of the solution of the problem is thus to interpret the period of notification according to Art. 39 CISG as the same time as a period of limitation. This limitation period would generally prolong the shorter limitation period of the national law to two years.
This solution of the Court of Appeals of Geneva can be criticized in so far that the core of Art. 210 (1) OR is not kept unaffected as the period is doubled. However, search for a solution which keeps the national law unaffected this way does not seem preferable.
bb) Another proposal was, namely, the application of the genereal limitation period for contracts (Art. 127 OR) (see Schlechtriem, loc. cit., no. 29 Art. 39). The criticism concerning this solution points to the same direction as the criticism concerning the decision of the Court of Appeals of Geneva, and even stronger, as the place of the period of one year would be taken by the period of limitation of 10 years and the core of Art. 210 (1) OR would even be more undermined.
cc) A view across the border shows that the discussion has already been decided by legislators of another legal systems, namely under German law. Because of concern with Art. 39 CISG, in Germany a law concerning the CISG was enacted of which Art. 3 states that the period of limitation of six months in para. 477 (1) sentence 1 of the German Civil Code only begins to run with the notification under Art. 39 CISG.
Applied to the Swiss situation, the German solution would lead to the consequence that the limitation period of one year of Art. 210 OR [*] would be kept with the restraint that it would only start to run after the entitled party had made its notification. The two-year period of notification would be unaffected as well as the national periods of limitation.
In the opinion of the Commercial Court, under this solution the national law remains unaffected as far as the conflict of norms allows it and at the same time the regulation of the CISG is respected. Thus, it is also considered that the period of Art. 39 CISG is not a limitation period but only a notification period which can therefore only influence the Swiss notification period but not the limitaion period. As a result, the Commercial Court follows the solution already undertaken by the German legislators as a determination of the law by the courts (Art. 1 (2) ZGB [*]).
e) In the present case, the delivery of the goods had taken place on 3 April 1997 and the notification which happened at the latest on 13 June 1997, as shown above, was on time. The summons for the attempt to reach a settlement followed on 5 August 1999. Therefore, it is obvious that the claim is according to the opinion of the Commercial Court as well as according to the Court of Appeals of Geneva statute-barred for lapse of time of the limitation period. [Buyer] asserts that the service of the third party notice under German law of 4 August 1998 had interrupted the limitation period. As in the result the limitation period of one year of Art. 210 (1) OR was applicable after the undertaken notification, even the service of the third party notice was too late and the claim of [Buyer] is statute-barred. Also, after the service of the third party notice it again waited more than a year and only on 5 August 1999 it was summoned for the attempt of reconciliation.
f) For the purpose of completeness and only in the sense of contingent reasoning, the question is discussed in the following whether the third party notice under German law has the effect of interruption.
aa) According to German law the third party notice interrupts the limitation period under Art. 209 (2) no. 4 BGB [*].
[Buyer] refers to the protocol no. 1, Art. V (2) sentence 2 of the Lugano Convention according to which effects of decisions under subsection 1 on third parties are recognized in other Contracting States. It would result out of this that the effect of the third party notice to interrupt the limitation period under German law would also be relevant for the present proceedings in Switzerland.
Art. V of the protocol No. 1 (2) of the Lugano Convention states:
"Judgments given in the other Contracting States by virtue of Article 6 (2) (...) shall be recognized and enforced in (...) in Switzerland in accordance with Title III. Any effects which judgments given in these States may have on third parties by application of the provisions in the preceding paragraph shall also be recognized in the other Contracting States."
Paragraph 1 of Art. V of the protocol states:
"Any person domiciled in another Contracting State may be sued in the courts (...) of the Federal Republic of Germany, pursuant to Articles 68, 72, 73 and 74 of the Code of Civil Procedure (Zivilprozeßordnung) concerning third-party notices."
However, it can only be concluded from this that the effect of a judgment that has been ordered against [Seller] in Germany under German law is also effective in Switzerland. According to the clear wording only the effects of a judgment are meant, not, as [Buyer] tries to assert, as well the effects of a third party notice preceding the judgment which, in other words, do not constitute a decision in the sense of Art. V of protocol No. 1. Thus, the interruptive effect of the third party notice on the limitation period according to German law is not effective for the present proceedings in Switzerland. This opinion is supported by the doctrine; Schwander elaborates that the law of the Cantons does not contain any provision concerning the question which consequences for the substance of the case would result from the third party notice. This is set forth by the substantive private law, thus the federal law, if it was applicable to the case according to the rules of international private law. Only if foreign law was applicable would one have to look for the foreign rules (Schwander, Commentary of the Lugano Convention, p. 81).
Concerning the application of the substantive law, the following has to be stated: Under Art. 1 (2) IPRG [*] the application of the Lugano Convention is reserved for the present case. The Lugano Convention determines the general forum to be at the country of domicile of the [Seller] so that the international jurisdiction in the present case is in Switzerland. It is undisputed that therefore on substantive matters the Swiss law is applicable, even though the provisions of the Vienna Convention, which is as well applicable, must be considered. As the parties did not agree on a choice of law (Art. 2 Hague Convention), the applicable law is that of the seller, thus Swiss law.
Consequently, to summarize it cannnot be relevant which effects the third party notice has under the German Civil Code (substantive law).
bb) Still, the effects of a third party notice under Swiss law have to be examined: according to Art. 1070 OR [*], the third party notice interrupts the period of limitation for notes receivables; for other claims only if they have the same effects as a court claim according to the law of the Cantons (Berti, N 1 Art. 135 OR). According to Guhl (p. 325 N 39), if it has the effects of an action of recourse according to the procedural law (Guhl, Swiss Law of Obligations, 9th edition, St. Gallen 2000, p. 325, N 9; ZBJV 1947, 320). However, usually a third party notice does not mean a court action of recourse (ZBJV 1947, 320). It is, on the contrary, meant as an invitation of the third party to collaboration and is thus not a legal action for recovery against the third party (Leuch, Marbach, Kellerhals, N1 Art. 48). Therefore, it is shown that the third party notice has not the effect of a claim in the Canton Bern and that it has thus no effect of interruption of the period of limitation (Leuch, Marbach, Kellerhals N 1 c Art. 48).
The same results from the following considerations: a claim before a foreign court has an interruptive effect if it is comparable with a domestic claim (Berti, N 15). But in the present case this is out of discussion, as only the effect of the third party notice is in question. At least conversly and applied mutus mutandi to the question of the third party notice it can be deduced from it that the third party notice before a foreign court can only have an interruptive effect if it had the same effect before a Swiss court. But this is not the case as shown above.
As a result, for the present case it can be stated that the interruptive effect of the third party notice on the limitation under German substantive law according to para. 209 BGB [*] is not effective for these proceedings. Under the applicable national substantive law and the procedural law of the Cantons, the third party notice has no interruptive effect on the limitation period, either. The claim of [Buyer] is even statute-barred if the opinion of the Court of Appeals of Geneva was followed and a limitation period of two years was assumed.
g) The claim does not contain any assertion in the sense that [Seller] had been in bad faith concerning the deficiencies according to Art. 40 CISG or that an intentional fraud under Art. 210 (3) OR had taken place which would give reason for an extended limitation period. This objection was also not expressly put forward during the second submissions of the parties but was only mentioned correspondingly. No evidence which indicates bad faith or a fraud on the part of [Seller] was presented to the court. It also speaks against bad faith of [Seller] that it gave [Buyer] a corresponding confirmation by its attorney still at the end of May. Its explanation why the attorney was brought in seems at least logical as it did not want to announce its supplier for fear S or its purchasers could buy their goods directly from it in the future with the respective reduction of the costs. Its reluctant behavior afterwards does not necessarily indicate bad faith from the beginning, but could result from the fact that it feared claims from S and hoped to avoid them with these delaying tactics. Intentional fraud or bad faith are neither sufficiently asserted nor proved.
4. After the asserted claim is statute-barred under Art. 201 (1) OR and [Seller] has raised the objection of limitation of actions, the [Buyer]'s claim in whole must be rejected.
IV. After the claim has to be rejected and the counterclaim of nearly the same amount was withdrawn, it is justified to halve the court expenses and to set off the costs of the parties against each other. The costs of evidence that arose in context with the claim are to be burdened upon [Buyer]. The fee for the official representative of [Buyer] will be determined by the court as the average of the amount in dispute of the presented case.
FOR THESE REASONS, IT IS ORDERED:
Bern, 17 January 2002
In the name of the Commercial Court of the Canton Bern
The Court Recorder:
* All translations should be verified by cross-checking against the original text. For purpose of this translation, Plaintiff of Germany is referred to as [Buyer] and Defendant of Switzerland is referred to as [Seller]. Amounts in the currency of Germany (Deutsche Mark) are indicated as [DM]; amounts in the currency of Switzerland (Swiss francs) are indicated as [Fr.].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; IPRG = Gesetz über das Internationale Privatrecht [Swiss Code on Private International Law]; OR = Obligationenrecht [Swiss Law of Obligations]; SZIER = Schweizerische Zeitschrift für Internationales und Europäisches Recht [Swiss Law Journal]; ZGB = Schweizerisches Zivilgesetzbuch [Swiss Civil Code]; ZPO = [Code of Civil Procedure of the Canton Bern].
** Kirsten Stadtländer is a student of law at Humboldt University Berlin. She was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 2001/02 and a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.Go to Case Table of Contents