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CISG CASE PRESENTATION

Germany 2 July 2002 District Court Saarbrücken (Tiles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020702g1.html]

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

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Case identification

DATE OF DECISION: 20020702 (2 July 2002)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 8 O 49/02

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: Tiles


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 6 ; 38(1) ; 39(1) [Also cited: Articles 2 ; 3 ; 25 ; 53 ; 60 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

6B [Choice of law: "The fact that the parties in their written pleadings argue with reference to provisions of BGB and HGB does not conflict with [automatic application of CISG pursuant to Art. 1(1)(a)] since this practice does not imply a tacit exclusion of the UN Sales Convention."];

38A [Buyer's obligation to examine goods: time for examining goods]:

39A11 [Requirement to notify seller of lack of conformity: degree of specificity required]

Descriptors: Choice of law ; Latent defects ; Examination of goods ; Lack of conformity notice, specificity ; Burden of proof ; Set-off

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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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=919&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/713.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=919&step=FullText>; Internationales Handelsrecht (1/2003) 27-28

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. Di Matteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) at n.709; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 paras. 7, 17

French: Witz, Receuil Dalloz - Cahier Droit des Affairs No. 34 (October 2003) 2363-2365

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Saarbrücken

2 July 2002 [8 0 49/02]

Translation [*] by Julian Waiblinger [**]

Translation edited by Camilla Baasch Andersen [***]

FACTS OF THE CASE AND PLEADINGS OF THE PARTIES

In 1999, the Defendant [buyer] placed several orders of various natural stone slabs for the [buyer]īs business enterprise from the Plaintiff [seller] based in Italy who invoiced a total of EUR 6,299.05 (= DM 12,319.87). By writing of 18 April 2000, the [buyer] notified the [seller] of a complaint regarding [seller]'s invoice of 23 September 1999 No. 502916 amounting to EUR 2,873.91 (= DM 5,620.88). It concerns the delivery of 164 square metres of stoneware tiles, which the [buyer] resold to a customer who put them down at his property. The [buyer]īs customer claimed damages from the [buyer] due to the fact that the tiles were not impermeable. The [buyer] sought to set-off against [seller]'s claim for the purchase price, a claim for damages according to § 480(2) BGB [*] and §§ 478, 479 BGB, exceeding the [seller]īs claim.

The [seller] takes the position that the [buyer]īs claims are statute-barred according to § 477 BGB.

Initially, the [seller] petitioned to order the [buyer] to pay to the [seller] EUR 6,299.05 along with 4% interest thereon since March 2000. At the judicial hearing, the [seller] with the [buyer]īs consent withdrew the claim as regards interest.

The [seller] petitions the Court to order the [buyer] to pay to the [seller] EUR 6,299.05. The [buyer] petitions to dismiss the claim.

The [buyer] alleges that:

-   One of the deliveries was defective. The [buyer]īs customer had found out that liquids like Apfelschorle [apple juice mixed with sparkling mineral water] and multivitamin juices would be completely absorbed by the tiles and cause stains. That constituted a latent defect within the meaning of §§ 377, 378 HGB.[*] The defect could only be discovered after the tiles had been installed.
 
- The [buyer] notified the [seller] of the defect by telephone immediately after the [buyer]'s customer called the defect to the attention of the [buyer].
 
- The costs of remedying this non-conformity exceeds the [seller]īs claim. As for the rest, the [buyer] takes the position that impermeability of the surface of the tiles is a warranted quality of the goods sold. From that point of view, the [seller] had also violated the duty of examination and supervision; therefore, the [seller] was also liable for special breach of contract.

REASONS FOR THE DECISION

The [seller]'s claim is admissible. The international jurisdiction of the German jurisdiction, which has to be considered ex officio, is present since the Defendant [buyer] is habitually resident in Germany (Art. 2(1) EuGVÜ [*] in the version of 28 February 2002).

On the merits, [seller]'s claim is legally justified.

I. The United Nations Convention on the International Sale of Goods (CISG of 11 April 1980, BGBl.[*] 1989 II 589, corrected in BGBl. 1990 1 January 1991), which entered into force on 1 January 1988 in Italy and on 1 January 1991 in Germany, is applicable to the parties' legal relations. This follows from the facts that both parties have a commercial establishment in one of the Contracting States and the goods are not determined for private use (Art. 1(1)(a), Art. 2, Art. 3(1) CISG). The fact that the parties in their written pleadings argue with reference to provisions of BGB and HGB, does not conflict with that since this practice does not imply a tacit exclusion of the UN Sales Convention (cf. Piltz NJW [*] 1996, p. 2770 with further citations; [Bundesgerichtshof [Federal Supreme Court of Germany] 25 November 1998 <http://cisgw3.law.pace.edu/cases/981125g1.html>] BGH NJW 1999, p. 1259).

II. According to Art. 53 CISG, the [seller] has a claim for the purchase price amounting to EUR 6,299.05. This is not denied by the [buyer].

III. The [buyer] sought to exercise a right to set-off a claim for damages against the [seller]'s purchase-money claim. However, the [buyer] lost the right to rely on a lack of conformity of the goods since the [buyer] failed to notify the [seller] of the lack of conformity of the duly and in time.

- A fundamental breach of contract by the [seller] is established within the meaning of Art. 25 CISG if the [buyer] fails to receive the essence of what could have been expected according to the contract. This can be established by delivery of goods in violation of the contract (cf. Schlechtriem in Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, 2d edition, Art. 25 No. 20). However, having taken delivery of the goods without rebuke, the buyer must set forth and prove the breach of contract, whereas the seller does not have to set forth and prove conformity with the contract (e.g., Herber/Czerwenka, Internationales Kaufrecht, 1991, Art. 35 No. 9; Piltz, Internationales Kaufrecht, 1993, § 5 No. 21).
 
- With the physical handing-over of the goods (Art. 60(b) CISG), the [buyer] took delivery of the tiles at the place of destination in Germany.
 
- According to Art. 38 CISG, the buyer is expected to examine the goods within as short a time as practicable, according to the circumstances. The buyer is then obliged to give notice to the seller of any lack of conformity within a reasonable time according to Art. 39(1) CISG (Staudinger/Magnus, 1994, CISG, Art. 38 No. 1). For the buyer to derive rights from the [seller]'s breach of contract, the [buyer] is obliged to give due notice to the seller, namely within time and correct as to form (Staudinger/Magnus, comp. above, Art. 39 No. 1). The buyer has to specify the breach of contract precisely; general statements do not suffice (Staudinger/Magnus, comp. above, Art. 39 No. 40). The [buyer] failed to satisfy the requirement to give adequate notice of defects, namely to specify the breach of contract precisely. The required specificity is lacking in [buyer]'s written declaration of 18 April 2000 that he would not settle the account of 23 September 1999, amounting to DM 5,620.88, due to a complaint. This statement does not provide the precise designation of a defect required by Art. 39(1) CISG. The notice must be specific enough for the seller to identify the asserted defect without further investigation. The requisite notice of lack of conformity was not provided within the relevant time period -- one month after delivery at the most (cf. [Bundesgerichtshof [Federal Supreme Court of Germany] 8 March 1995 <http://cisgw3.law.pace.edu/cases/950305g3.html>] BGH NJW 1995, p. 2099).
 
- The allegation that the [buyer] had notified the [seller] of the defect even before the writing of 18 April 2000 is unsubstantiated as regards time and essence and not proven; also it is expressly denied by the [seller].
 
- Finally, the [buyer] pleads without success that the defect had not been discernible and therefore could not have been notified immediately. As results from the expertise submitted by the [buyer], the fact that the tiles had a permeable surface was immediately discernible by way of a simple test. The [buyer] had been obliged to carry out such a test. Thus, for this reason, the [buyer] cannot successfully put forward claims for breach of contract.

IV. From that point of view, it can be left open as to whether the German [buyer] can effectively exercise the right to set-off against the [seller]'s purchase-money claim a claim for damages according to Art. 74 CISG -- if a set-off against the Italian seller is inadmissible under the Italian law which is applicable. Since set-off is not governed by the CISG, the law of the seller, namely Italian law, is applicable to this issue according to Art. 32(1) No. 4, Art. 28(1) EGBGB. [*] Italian law differentiates between statutory and judicial set-off. In the present case, the requirements for a statutory set-off are not met since the [buyer]'s claim is not liquid (i.e., ripe for judgment) and enforceable to the same extent as the [seller]'s claim. Neither are the requirements met for a judicial set-off since the buyer's - denied - claim which he wants to set-off cannot be established easily and straightaway (cf. [Landgericht [District Court] 20 March 1995 <http://cisgw3.law.pace.edu/cases/950320g1.html>] LG München, IPRax 1996, pp. 31-33).

V. It can be left open as to whether the [buyer]īs claims for damages are statute-barred as put forward by the [seller].

[...]


FOOTNOTES

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

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGBl = Bundesgesetzblatt [Federal Law Gazette]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [Introductory Act to the BGB]; EuGVÜ = [European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters]; HGB = Handelsgesetzbuch [German Commercial Code]; NJW = Neue Juristische Wochenschrift [well-known German law journal].

** Julian Waiblinger, Humboldt University, Berlin, Faculty of Law since 1999; King's College, London, Diploma in Legal Studies 2001/2002.

*** 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 PhD 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 August 12, 2005
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