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Germany 4 June 2002 District Court Stuttgart (Porphyr stones case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020604g1.html]

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

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Case identification

DATE OF DECISION: 20020604 (6 June 2002)


TRIBUNAL: LG Stuttgart [LG = Landgericht = District Court]

JUDGE(S): Unavailable


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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Porphyr stones

Classification of issues present



Key CISG provisions at issue: Articles 35(1) ; 50 ; 74 ; 78 [Also cited: Articles 45(1)(b) ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

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

50A [Buyer's right to reduce price for non-conforming goods];

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: Conformity of goods ; Reduction of price, remedy of ; Damages ; Collection costs ; Interest

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/909.pdf>

Translation (English): Text presented below



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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Stuttgart

4 June 2002 [15 O 179/01]

Translation [*] by Mariel Dimsey [**]

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



The 15th Civil Chamber of the Stuttgart District Court, on the basis of the oral proceedings of 14 May 2002 before District Court Judge [...], acting as sole judge, handed down the following judgment:

1.   The Defendant [Buyer] of Germany must pay to the Plaintiff [Seller] of Italy EUR 8,213.31, plus 5% interest above the base interest rate under 1 Bank Interest Rates Transitional Law (Diskontsatz-Überleitungs-Gesetz) since 30 December 2000, in addition to EUR 10.23 creditor default fees.
2. The [Seller]'s remaining claim is dismissed.
3. The [Buyer]'s counterclaim is dismissed.
4. The costs of the legal proceedings are to be borne 88% by the [Buyer] and 12% by the [Seller].
5. Pending appeal, the judgment is enforceable by the [Seller] against deposit of security in the amount of EUR 10,700.00.

Pending appeal, the judgment can provisionally be enforced by the [Buyer] without deposit of security. The [Seller] can refute enforcement by depositing security in the amount of EUR 500.00, provided that the [Buyer] does not deposit security in the same amount.

Dispute value: EUR 16,917.02.


The [Seller] seeks payment for three deliveries of porphyry paving stones. With its counterclaim, the [Buyer] claims damages due to defects of the delivered stones.

The [Seller] operates a quarry in Italy, in which, among other materials, core porphyry is extracted and manufactured into paving stones. The [Buyer] bought such paving stones to pave the street in the middle of the town of [...], as a supplier of Company ..., which carried out this project.

The [Buyer] ordered 20 t of core porphyry stones of size 8 cm x 10cm, and 5 t of core porphyry stones of size 16 cm x 18 cm from the [Seller] on 15 June 2000 (Exhibit K 6 p. 66 of the file). This order was delivered on 16 June 2000 and invoiced on 30 June 2000. The invoice was met by the [Buyer].

On 30 June 2000, the [Buyer] ordered 12 t of core porphyry stones of size 8 cm x 10 cm and 13 t of core porphyry stones of size 12 cm x 14 cm (Exhibit K 7, p. 67 of the file). Delivery was effected on 3/4 July 2000.

Subsequently, 26.5 t of core porphyry stones of size 12 cm x 14 cm were ordered by telephone, which were delivered on 5 July 2000.

Both of these deliveries were accounted for by the invoice of 7 July 2000, which is in dispute, in the amount of Deutsche Mark [DM] 13,377.20 (Exhibit K 1; p. 5 of the file).

A final order of 25 t of core porphyry stones of size 12 cm x 14 cm was made on 10 July 2000 (Exhibit K 7 p. 68 of the file). Delivery took place on 10/11 July 2000. It was accounted for in the invoice of 14 July 2000, which is also in dispute, with a purchase price of DM 6,624.80 (Exhibit K 2 p. 6 of the file).

Neither of these invoices has been met by the [Buyer]

Therefore, the [Seller] applies for the [Buyer] to be found liable to pay to the [Seller] EUR 10,226.86 (corresponding to DM 20,002.00), plus interest at 5% above the base interest rate under 1 Bank Interest Rates Transitional Law (Diskontsatz-Überleitungs-Gesetz) since 30 December 2000, as well as debt recovery costs of EUR 428.85 (corresponding to DM 838.75) and creditor default fees of EUR 10.23 (corresponding to DM 20.00).

The [Buyer] applies for the [Seller]'s claim to be dismissed.

[Buyer's position]

[Buyer] alleges that all four deliveries had been defective. Some of the paving stones were allegedly of the wrong size; on some stones, saw cuts were apparent. Corners had been chipped off and the paving stones had been mixed with gravel and slate material at the time of delivery. For these reasons, the stones did not correspond to the features agreed upon and confirmed in a report of the Institute for Material Examination's Dr. ... (Exhibit B 2, p. 36 of the file). Consequently, the [Buyer] refuses to pay the invoices and claims damages from the [Seller].

First, [Buyer] claims DM 3,348.00 for 9 t of unusable material at a price of DM 368.00 per tonne + DM 4.00 for freight. The price in the amount of DM 368.00 per tonne was agreed upon with Company [...] GmbH.

Furthermore, the [Buyer] claims damages in the amount of DM 1,860.00 for 5 t of stones of size 14 cm x 18 cm that have not been ordered, but which were paid for by the [Buyer] following the invoice of 30 June 2000.

[Buyer] also claims for the separation of usable from unusable material and the disposal of the unusable material, the costs of an earthmover plus driver for nine hours at DM 110.00/hour, in total DM 990.00, and landfill disposal costs of DM 300.00 which must also be reimbursed by the [Seller].

In addition, due to the paving stones' lack of protection from frost as a result of the defective delivery of the [Seller], the [Buyer] had been forced to enter into a retention of security agreement with its customer, Company [...] GmbH, in the amount of 5%, corresponding to an amount of DM 1,554.44, which can be passed on to the [Seller].

For meetings in [...] on 13 and 20 July 2000 and 29 January 2001, the [Buyer] had incurred personnel costs in the amount of DM 1,300.00.

Value-added tax on the damages claims amounted to DM 1,288.39.

Finally, the [Buyer] had suffered loss in profit in the amount of DM 20,000.00 due to the defective delivery. Due to the defective delivery alone, the [Buyer] had missed out on a contract from Company [...] GmbH for delivery of the same core porphyr paving for the [...] in [...].

The delivery arrangement in [] had been agreed upon as a "trial run" for [...]. The [Seller] had been aware of this. Due to the significance of the contract for [...], Company [...] GmbH had first wanted to test the materials and logistics of the supplier with a smaller project. As Company [...] GmbH had not been satisfied with the materials of the [Seller], it had not run the project [...] together with the [Buyer], but instead with another company.

The [Buyer] holds the view that it was entitled to a claim for damages of a total amount of DM 30,640.83, which was to be set off against the [Seller]'s claim, which, however, first had to be reduced by DM 1,860.00 plus value-added tax, as this represented the amount that had been paid for the stones that have not been ordered.

The still-remaining difference is the subject of a counterclaim in which the [Buyer] applies for the [Seller] to be found liable to pay EUR 6,690.15 (corresponding to DM 13,084.82).

[Seller's position]

The [Seller] applies for the dismissal of the [Buyer]'s counterclaim.

The [Seller] admits that the deliveries were, indeed, partially defective in the sense that material with chipped-off corners, incorrect edges, or gravel-like material had been delivered. However, it had still been possible to carry out the entire contract with the delivered materials.

That 9 t of material had to be separated is disputed by the [Seller]. It points to the fact that the parties had agreed on paving stones of size 12 cm x 14 cm at a price of DM 260.00 per ton and stones of size of 8 cm x 10 cm at a price of DM 280.00.

The [Seller] further points out that 5 t of quartz porphyry paving of size 14 cm x 18 cm had been ordered.

The [Seller] disputes that the amount claimed for separation and disposal was actually incurred.

The [Seller] holds the view that it should not be liable to pay the retention of security agreed upon with Company [...] GmbH, as this constituted a voluntary agreement of the [Buyer] with a third party, which could not result in a detriment to the [Seller].

The personnel costs of the [Buyer] are also disputed.

Finally, the [Seller] holds the view that it should not be liable for the lost profit regarding the contract for [...] that was not awarded to the [Buyer]. This could be seen from the fact that a "trial delivery run" had explicitly been agreed upon. The [Buyer] had also had the possibility to carry out that project with another supplier. That the defective deliveries were the cause for the contract from Company [...] GmbH not being awarded to the [Buyer] is also disputed.

With respect to the detailed pleadings of the parties, reference is made to the exchanged memoranda.

The court collected evidence through the examination of witnesses [...] and [...] from Company [...] GmbH, [...] and [...] from the [Buyer] and [...] from the [Seller] (p. 154 et seq., 184 et seq. of the file).


The [Seller]'s claim is admissible and partially justified. The [Buyer]'s counterclaim, while also admissible, is unsuccessful.

The [Buyer]'s letter of 3 June 2002 did not give rise to anything new to be addressed in oral proceedings.

The [Seller] is entitled to claim the purchase price from the [Buyer] in the amount of DM 20,002.00, which the [Buyer] has rightfully reduced by DM 2,400.00 and which has been extinguished in the amount of DM 1,538.16 by set-off against the damages claims of the [Buyer]. Further damages claims on the basis of the [Buyer]'s counterclaim do not exist.

Therefore, the [Seller] can still claim DM 16,063.84 from the [Buyer].

I.  According to Art. 1 CISG, the uniform UN Sales Law applies to the contractual relationship between the parties.

II. According to Art. 53 CISG, the [Seller] is entitled to the purchase price in the amount of DM 17,602.00 for the orders of 30 June and 10 July 2000, and for the order by telephone.

      1. Under Art. 50 CISG, the [Buyer] is entitled to reduce the purchase price claimed by the invoices of 7 and 14 July 2000 in the amount of DM 20,002.00 by DM 2,400.00, as 9 t of unusable material was delivered.

            a) A reduction of the purchase price is permissible under Art. 50 CISG if the goods delivered do not conform to the contract. In this regard, the goods do not conform to the contract if they do not correspond to the requirements of the contract either in amount, quality or type, as well as with respect to packaging (Art. 35(1) CISG).

It is not disputed between the parties -- and this was confirmed in the meetings between those concerned in [...] on 13 July 2000 (file note Exhibit B 7; p. 41 of the file) -- that the deliveries of the [Seller] partially contained fine-grained/slate material, which was also described as gravel in the legal proceedings, and that edges and corners of the paving stones had been chipped off. To some extent, the paving stones were also unusable for their use as street paving as foreseen in the contract, due to their processing (saw cuts).

It can thus be established that parts of the deliveries made by the [Seller] did not conform to the contract.

Whether the delivered "gravel" is to be regarded as an aliud or as defective, due to the crushed or slate-like nature of the paving, does not have to be decided here. According to Art. 35(1) CISG - in contrast to German sales law - even in cases where goods of a different type are delivered, a defect in the goods under sales law is to be assumed (Schlechtriem, CISG, 3rd ed. Art. 35, paras. 8, 10).

Whether the quartz porphyry delivered was in accordance with the further requirements of the report of the Institute for Material Examination's Dr. ... (Exhibit B 2, p. 36 of the file) does not need to be clarified here. With respect to the claim of further-reaching defects than those described above, the [Buyer] has not effectively satisfied its evidentiary burden.

The [Buyer] relies on the defects described above to support its claim of reduction of the purchase price. The only conclusion that can be drawn is that the paving stones did not correspond to the features confirmed in the report in general. However, the reason why the stones that were actually laid could not withstand weather and frost has not been concretely and comprehensively explained. Precisely -- as set out in the report -- that portion of the stones that were broken was not separated by the [Seller] upon extraction and processing, but, instead, by the employees of Company [...] GmbH before laying them. The costs incurred by the separation process are claimed by the [Buyer] as damages.

Regardless of this, it is undisputed that, in the two winters that have passed since the paving was laid, no defects whatsoever have arisen.

            b) After the conclusion of the taking of evidence, the court is convinced that 9 t of the delivered material had to be separated owing to the defects described, comprising 3 t of paving stones of size 8 cm x 10 cm, and 6 t of paving stones of size 12 cm x 14 cm. This resulted from the credible statement of witness [...] in the oral proceedings, who led the project [...] for Company [...] GmbH.

Witness [...], for Company [...] GmbH, calculated the amount of unusable material delivered by the [Seller]. Thereby, he based his findings on the yield of the delivered material. In this regard, he also took into account that a certain amount of remaining material had been taken over by the [...] Council and that the entire surface had been paved with the [Seller]'s material. The calculations of Mr. [...], according to his own statement, are also based upon the information in the file note of 20 July 2000 (Exhibit B 8, p. 42 of the file).

Furthermore, the court does not see any possibility of more precisely determining the amount of defective material. In particular, an expert opinion is not suitable for this purpose, as, according to the statement of Mr. [...], a significant amount of material - 10 t to 14 t - was taken over by the [...] Council.

Finally, even the [Buyer], the party relying on the reduction of the purchase price, has failed to state in any comprehensible way that there was more than 9 t of material that had to be separated.

            c) The calculation of the amount of the price reduction has to be based on the purchase price agreed upon by the parties: paving stones of size 8 cm x 10 cm at DM 280.00 per ton, paving stones of size 12 cm x 14 cm at DM 260.00 per ton.

The purchase price agreed upon by Company [...] GmbH and the [Buyer] which the [Buyer] could not realize as profit can, indeed, be claimed as damages.

The amount of reduction of the purchase price thereby amounts to DM 2,400.00. This is a gross amount.

      2. The disputed invoices dated 7 and 14 July 2000 do not relate to the delivery of 5 t paving stones of size 14 cm x 18 cm, which, according to the [Buyer], were not ordered.

For this reason alone and contrary to the claims of the [Buyer] (p. 19 letter dated 18 June 2001; p. 32 of the file), the disputed invoices cannot be reduced by the amount of the purchase price due for this delivery in the amount of DM 1,860.00.

      3. Finally, the total amount of DM 6,624.80 invoiced on 14 July 2000 can also not be deducted.

After the conclusion of the presentation of evidence, the court is convinced that the 25 t paving stones of size 12 cm x 14 cm invoiced did not constitute a free replacement delivery for unusable material.

This can be seen, first, from the [Buyer]'s own statement that, although during a meeting on-site, a replacement delivery was offered by witness [...], but has never been insisted on by the [Buyer]. Instead, the agreement was reduced to using the material that was originally intended to be disposed of for the extraction of usable stones, which could then be utilized (p. 9 memorandum dated 26 July 2001; p. 98 of the file).

However, the [Buyer] subsequently claimed the opposite (p. 7 memorandum dated 25 September 2001; p. 120 of the file) -- which, in any case, corresponds to the general approach of its representatives of presenting to the court different and contradictory versions of the facts, from which the "cherries can be picked". According to this argument, the fourth delivery was indeed a replacement delivery, for which no payment should have been made.

However, it turned out in the oral hearings that the material delivered by the [Seller] was sufficient to cover the whole surface and that remaining material in the range of 10 t to 14 t was even taken over by the [...] Council.

It can be seen from this information from witness [...] that the fourth delivery cannot be regarded as having been ordered as a (pure) replacement delivery. Otherwise, this delivery would not have produced a noticeable excess, but would have solely served to fill the remaining gaps. A delivery of 25 t in the case of defective material of a total of 9 t cannot, at least not in its entirety, be regarded as a replacement delivery.

With respect to the 9 t of defective material, a reduction of the total amount of both invoices as shown above is justified.

III. The [Buyer] is entitled to claim damages from the [Seller] in the amount of DM 1,538.16 under Arts. 45(1)(b), 74 CISG.

      1. The earthmover and the material costs for the separation of the usable from the unusable material (9 hours at DM 110.00 per hour), and the landfill costs in the amount of DM 300.00 plus value-added tax in the amount of 16%, resulting in a total of DM 1,496.40, can be claimed as damages.

The statements of witness [...], which were confirmed in the oral hearings, are also based upon these figures, which were stated in various file notes and invoices.

The witness stated that the earthmover was actually used for the disposal of the gravel. The witness also stated that the landfill site did not have any means of weighing, with the consequence that more exact (written evidence) with respect to the disposal costs was not available.

The court regards the statements of witness [...] as credible and logical.

This view of the court is, in particular, strengthened by the fact that the witness also made statements that were not to the advantage of Company [...] GmbH, where he is employed, nor to the [Buyer]. Thereby, the court cannot discern any evidence of a tendency on behalf of the witness to discriminate against the [Seller].

It must be accepted that, thereby, the usual inaccuracies in measuring and realization cannot be avoided. A more exact means of determining the damage caused by the separation of the material is also not apparent here.

      2. Within the scope of damages, the [Buyer] can also claim the portion of the freight costs for the 9 t of delivered, but unusable material. It is undisputed that this amounts to DM 4.00 per ton plus value-added tax of 16%, totaling DM 41.76.

      3. In contrast, DM 1,860.00 for the paving stones of size 14 cm x 18 cm invoiced on 30 June 2000 cannot be claimed as damages. The stones were actually ordered by the [Buyer] (Claim K 6; p. 66 of the file). The fact that they may have been too big to be used to pave the street does not constitute a defect, but is to be attributed to the [Buyer], who is responsible to Company [...] GmbH for a possibly incorrect order.

      4. The price difference between the purchase price of the [Buyer] and the sales price to Company [...] GmbH with regard to the 9 t of separated material can also not be claimed as damages under Art. 74 CISG.

According to the testimony of witness [...], on the part of Company [...] GmbH, it was agreed with the [Buyer] that the delivered material was to be used to cover a particular area -- namely the street surface that needed to be paved. This shows that the [Buyer] was required to deliver to Company [...] GmbH the amount of paving necessary to pave the street. By way of contrast, an obligation to accept any excess on the part of Company [...] GmbH has neither been brought forward nor is it apparent.

The sole circumstance that the [...] Council actually took over 10t to 14 t of the excess paving stones does not give rise to any corresponding obligation of Company [...] GmbH to the [Buyer].

The amount necessary to pave the surface was invoiced to Company [...] GmbH by the [Buyer]. Therefore, even if the 9 t of separated material had been delivered free of defects, this could not have been invoiced on the part of the [Buyer] to Company [...] GmbH, as it would then have been an excess delivery.

      5. The retention of security agreed upon between the [Buyer] and Company [...] GmbH also fails to constitute damage compensable under Art. 74 CISG.

Either the retention of security had been originally agreed upon by the [Buyer] and company [...] GmbH. If this were true, there is in any case no reason to pass it on to the [Seller], as no connection with the defective delivery exists.

Or the retention of security is based on a subsequent agreement between Company [...] GmbH and the [Buyer]. Here, it may be the case that the doubts as to the quality of the delivered material that arose in the course of the deliveries were the cause for such agreement. However, such an agreement as to a retention of security cannot be attributed to the [Seller].

Company [...] GmbH could not demand that the [Buyer] grant it such retention of security. To this extent, a corresponding subsequent agreement constitutes a concession on behalf of the [Buyer], possibly in respect to further deals expected by the parties -- a concession, however, that the [Seller] does not have to bear.

      6. In addition, the personnel costs claimed by the [Buyer] for the three on-site meetings in [...] in the amount of DM 1,300.00 cannot be claimed as damages. The extent to which personnel costs for the meetings on 13 and 20 July 2000 and 29 January 2001 were actually caused by the defective deliveries is not apparent. The [Buyer] has not been able to substantiate why it has incurred damage through the use of its personnel precisely for this task -- perhaps because nothing else could be done in its place?

      7. Finally, the [Buyer] is also unrightfully claiming DM 20,000.00 damages due to loss of the subsequent contract for [...].

            a) The parties expressly agreed that the delivery for project [...] was to apply as a "trial run" with respect to project [...]. This can be seen, first, from the enquiry about 1,000 t porphyry paving dated 14 June 2000 (Exhibit B1, p. 35 of the file). In addition, it is confirmed in the [Seller]s letter dated 27 September 2000 (Exhibit B 3, p. 37 of the file) that it was aware that it was dealing with a "trial run".

            b) According to the view of the court, it can also be assumed that the [Buyer] would have received the contract from Company [...] GmbH had the company been satisfied with the delivery.

This can be seen, in particular, from the testimony of witness [...], the responsible head of sales at Company [...] GmbH, as well as from the written testimony of witness [...] dated 11 February 2002 (p. 168 of the file). These testimonies are not contradicted by the testimony of witness [...], who only spoke of a chance of a subsequent contract, as well as that of witness [...], who stated that, in respect to the subsequent contract, nothing was set in stone. Both of the last-mentioned witnesses were not involved in the contract award process or contractual negotiations. Therefore, their views are not decisive for the case at hand.

            c) However, for reasons of law, the [Buyer] cannot claim damages. The fact that, in the event of a failure of the "trial run" relationship, the [Buyer] would miss out on profit of the subsequent contract, is initially the business risk of the [Buyer]. Such risk does not fall within the interest in performance (Erfüllungsinteresse) of the "trial run" relationship with the [Seller]. Profit originating from a subsequent re-sale of the paving stones cannot be seen as a (loss of) profit in the sense of Art 74 CISG that can be foreseen or ought to have been foreseen. This is due to the fact that otherwise the [Seller] would have to bear the whole risk. The [Buyer] would have received the profit regardless of the quality of the delivered material and without the contractual relationship with Company [...] GmbH -- namely, in the event of proper delivery from the subsequent contract, and in the event of defective delivery from the damages claim against the [Seller].

            d) An express re-allocation (from the [Buyer] to the [Seller]) of the risk of missing out on a subsequent contract has not been agreed upon by the parties. This can be seen from the purchase price determined. The [Seller] delivered to the [Buyer] at a particularly cheap price because it also had an interest in a subsequent contract. If it had wanted to assume the risk of missing out on a subsequent contract, this would have been reflected in a particularly high purchase price (Schlechtriem, ibid, Art. 74, para. 36).

Furthermore, Company [...] GmbH did not make any damages claims whatsoever against the [Buyer] in respect of the contract [...]. However, as Company [...] GmbH actually obtained the stones that were ultimately laid from a more expensive supplier, it also suffered an economic disadvantage. However, no one thought of passing this disadvantage on to the [Buyer] on the basis of the "trial run" relationship.

Finally the [Buyer] would have been free, after it became dissatisfied with the [Seller]s material, to offer Company [...] GmbH quartz porphyry paving from another supplier. If one were to follow the approach of the [Buyer], which refers to the testimony of witness [...], namely that the contract [...] had actually already been awarded (p. 3 memorandum dated 3 June 2002; p. 156 of the file), it would have even been under an obligation to do so.

It cannot be attributed to the [Seller] that the contract did not arise -- not with the material from a third supplier, either.

The claim for interest arises from 288 German Civil Code (BGB).

Furthermore, the [Seller] is entitled to claim the default fees it incurred in the amount of DM 20.00 as default damages under 286(1) German Civil Code (BGB).

In contrast, it is not entitled to claim reimbursement of the debt recovery costs incurred under 286(1) German Civil Code (BGB). After ongoing attempts of the parties -- starting August 2000 -- to reach agreement have remained unsuccessful, the [Seller] could not assume that legal proceedings could have been avoided by enlisting the services of a debt recovery office. The costs incurred by this were, for this reason, not necessary to establish founded claims.

Therefore, the [Seller]'s claim is allowed to the extent described. The [Buyer]'s counterclaim is dismissed.

The decision on costs is based on 92(1) German Civil Procedure Regulations (ZPO), the decision on the initial enforceability on 708 No. 11, 709, 711 German Civil Procedure Regulations (ZPO).


* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Germany is referred to as [Buyer].

** Mariel Dimsey is a Research Assistant and Teaching Assistant at the University of Basel.

*** 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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