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CISG CASE PRESENTATION

Germany 11 April 2002 Lower Court Viechtach (Pallets case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020411g1.html]

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

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Case identification

DATE OF DECISION: 20020411 (11 April 2002)

JURISDICTION: Germany

TRIBUNAL: AG Viechtach [AG = Amtsgericht = Lower Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1 C 419/01

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Slovakia (defendant)

GOODS INVOLVED: Pallets


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a); parties from Contracting States Germany and Slovakia]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 35 ; 38 ; 39 ; 74 ; 78 [Also cited: Articles 14 ; 45 ; 49 ; 53 ; 58 ; 59 ; 61 ]

Classification of issues using UNCITRAL classification code numbers:

35A [Conformity of goods: quality, quantity and description required by contract];

38A [Time for examining goods: buyer’s obligation to examine goods];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

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

78A ; 78B [Interest on delay in receiving price of any other sum in arrears: "attorneys’ fees constitute ‘any other sum in arrears’ in the meaning of Art. 78"; Rate of interest]

Descriptors: Conformity of the goods ; Aliud vs. peius ; Examination of goods ; Lack of conformity notice, timeliness ; Damages ; Collection costs ; 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): Click here for original German text of case; see also JurBüro 2002, 429-430 (Leitsatz und Gründe)

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Liu Chengwei, Recovery of interest (November 2003) n.267; 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]

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Case text (English translation)

Queen Mary Case Translation Programme

Lower Court (Amtsgericht) Viechtach

11 April 2002 [1 C 419/01]

Translation [*] by Ruth M. Janal [**]

Translation edited by Camilla Baasch Andersen [***]

Reasons for the decision [excerpt]

I. [Seller's claim granted]

The [seller] is entitled to payment of the purchase price in the amount of 3,307.04 Euros (= German Mark [DM] 6,468), based on the sales contract in connection with Art. 53 of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

      1. [Applicable law]

The material and territorial sphere of application of the CISG is given following its Art. 1(1)(a). The contract between the parties is a contract of sale of goods; both Germany and Slovakia are Contracting States to the CISG.

      2. [Merits of the seller's claim]

The [seller]’s claim for payment of the purchase price results from Art. 53 CISG in connection with the sales contract, which was validly concluded following Art. 14 et seq. CISG. According to Art. 58(1) sent. 1 CISG, payment is furthermore due, because the [seller] placed the goods at the [buyer]’s disposal.

The [buyer]’s objection that there is a case of non-performance or non-delivery is without merit. [Buyer] bases her argument on the allegation that the [seller] did not deliver pallets that conformed to the EUR-norms, respectively, that the EUR-brand was forged. In contrast to the German sales law up until the end of the year 2001, it is not sufficient for a case of non-delivery under the CISG that an aliud, i.e., a different kind of good, was delivered. Under Art. 35 CISG, a defect and an aliud are treated equally. At the most, non-delivery under the CISG may possibly be assumed if there is a blatant divergence between the goods agreed upon and the goods delivered (cf. BGH [*] NJW [*] 1996, 2364 [also available online at <http://cisgw3.law.pace.edu/cases/960403g1.html>]. Such a blatant deviation does not exist in the present case, even if one assumes that the [seller] was obliged to deliver EUR-pallets and that the pallets delivered did not conform to the EUR-norms, despite the fact that they possessed a corresponding brand name. In any case, this would only constitute a breach of contract under Art. 35 CISG, but it would not lead to a case of non-delivery.

Under the regime of the CISG, the delivery of goods which deviate from the goods agreed under the contract constitutes a case of non-delivery only in very few exceptional cases. Art. 35(1) CISG intentionally affords parity treatment to a defect and the delivery of an aliud in order to avoid difficulties in distinguishing between the two. This falls in line with a general trend of modern laws of obligations (such as, e.g., the new German law of obligations). This aim would be foiled if one chose to extend the sphere of non-delivery, because the difficulty in distinguishing between aliud and defect would be shifted to the distinction between delivery and non-delivery. Therefore, a case of non-delivery can only be assumed in very blatant and obvious cases of divergence between the goods agreed upon and the goods delivered. Such an obvious deviation does not exist in the present case. It is undisputed between the parties that wooden pallets had to be delivered under the sales contract and that wooden pallets were in fact delivered. The deviation alleged by the [buyer] would only have led to the result that the goods were not of the quality and description required by the contract in the meaning of Art. 35(1) CISG.

This conclusion is not hampered by the [buyer]’s argument that the pallets were forged and that – just as with counterfeit money – this could only lead to a case of non-performance. Firstly, counterfeit money cannot be compared with the delivery of wooden pallets that possibly possess a forged brand. Forged money is without value in any case and for anyone, thus, it leads to non-performance by definition. Pallets that do not conform to the EUR-norm may be defective and limited in their use, but they are nevertheless "pallets" and cannot be considered as worthless from the start. Secondly, the previous German case law, which had to reflect upon the difference between a defect and the delivery of an aliud, shows that fake goods (e.g., a fake painting) have to be classified as non-conforming goods (cf. Palandt, 61st ed., § 459 BGB [*] n. 40 et seq.). In other words, the previous German case law regarded the delivery of fake goods as a case of non-conformity and not as a case of non-performance. This must be all the more true for a law which does not distinguish between a defect and an aliud.

The Court did not have to hear evidence on the matter of which specific kind of pallets was in fact agreed upon and whether the [seller] committed a breach of contract. It was explained above that – even if the [buyer]’s submissions were true – the delivery only constituted a breach of contract under Art. 35(1) CISG, which the [buyer] would have to redress under Art. 45 et seq. CISG. However, the [buyer] is no longer entitled to rely on the breach of contract, because she did not examine the goods and give notice of the defect within reasonable time as required under Art. 38(1) and (3) and Art. 39(1) CISG. The [buyer] does not even make specific submissions as to whether the [seller] knew of the redirection of the goods to the company in Würzburg [Germany] (cf. Art. 38(3) CISG) and at which point in time the [seller] was first notified of the alleged non-conformity (cf. Art. 39(1) CISG). The [buyer] also has not made any submissions regarding the exclusion of Art. 49 CISG. Since there are no relevant defenses, the [seller]’s claim for payment of the purchase price results from Arts. 53, 58(1) sent.1 CISG.

II. [Interest]

The [seller] is entitled to interest on the purchase price at a rate of 12% under Art. 78 CISG. According to Art. 58(1) sent. 1 CISG, payment was due when the goods were delivered on 11 July 2001. The [buyer] had to pay the price on that day without the need for another period of time to pass or a reminder of payment (Art. 59 CISG). The Court therefore grants interest from 4 August 2001, as requested. Since the [buyer] did not dispute the interest rate submitted by the [seller], the Court grants the requested rate of 12%.

III. [Attorneys' fees]

The [seller] is also entitled to payment of the attorneys’ fees in the amount of 215 Euros (= DM 420.50) under Arts. 61(1)(b), 74 sent. 1 CISG in connection with § 118(1) no. 2, § 12 BRAGO [*]. As discussed above, the [buyer] was in default of payment of the purchase price, which constitutes a breach of contract in the meaning of Art. 61(1) CISG. The term "loss" in Art. 74 sent. 1 CISG, encompasses the cost of pursuing one’s rights. The [seller] was entitled to commission an attorney, because the [buyer] persistently refused payment. Before the start of litigation, the telephone conversations between the [seller]’s attorney and the [buyer] caused a consultation fee under § 118(1) no. 2 BRAGO, which cannot be counted towards the litigation fee. The amount determined under § 12 BRAGO (7.5/10 fee, with a business value of DM 6,468) cannot be queried. Interest was granted under Art. 78 CISG at the legal rate following § 288(1) sent. 1 BGB [*] from the time the claim was filed on 20 November 2001. The attorneys’ fees constitute "any other sum that is in arrears" in the meaning of Art. 78 CISG.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Slovakia is referred to as [seller]; the Defendant of Germany as [buyer]. Amounts in European currency are indicated as [Euros]; amounts in German currency (Deutsche Mark) as [DM].

Translator's note on terms and other abbreviations:

-   aliud = totally different goods; peius = non-conforming goods [A former German domestic sales law doctrine had held an aliud to be equivalent to no delivery, whereas a peius had been held to be a delivery, albeit non-conforming];
-   BGB = Bürgerliches Gesetzbuch [German Civil Code];
-   BGH = Bundesgerichtshof [Federal Court of Justice, the highest German Court in civil and criminal matters];
-   BRAGO = Bundesrechtsanwaltsgebührenordnung [German ordinance on attorneys' fees];
-   NJW = Neue Juristische Wochenschrift [German law journal].

** Ruth M. Janal, LL.M. (UNSW) is a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg. The second-iteration redaction of this case was by Dr. John Felemegas of Australia.

*** Camilla Baasch Andersen is a Lecturer in International Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London, and a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She is currently finishing her Ph.D. thesis on uniformity of the CISG at the University of Copenhagen.

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Pace Law School Institute of International Commercial Law - Last updated December 2, 2004
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