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CISG CASE PRESENTATION

Germany 26 July 2002 Appellate Court Zweibrücken (Wine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020726g1.html]

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

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Case identification

DATE OF DECISION: 20020726 (26 July 2002)

JURISDICTION: Germany

TRIBUNAL: OLG Zweibrücken [OLG = Oberlandesgericht = Provincial Court of Appeal]

JUDGE(S): Giersch, Burger, Geib-Doll

CASE NUMBER/DOCKET NUMBER: 2 U 27/01

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

CASE HISTORY: 1st instance LG Frankenthal (2 HKO 43/01) 31 May 2001

SELLER'S COUNTRY: Italy (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Wine


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 35 ; 40 ; 74 [Also cited: Articles 6 ; 39 ; 45(1)(b) ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): statute of limitations];

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

40C [Seller's knowledge of non-conformity];

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

Descriptors: Scope of Convention ; Statute of limitations ; Conformity of goods ; Lack of conformity known to seller ; Damages

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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 <http://www.cisg-online.ch/cisg/urteile/688.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.567, 612, 614, 618; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 4 para. 21

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Zweibrücken

26 July 2002 [2 U 27/01]

Translation [*] by Julian Waiblinger [**]

Translation edited by Mark Beamish [***]

I. BACKGROUND FACTS AND PLEADINGS OF THE PARTIES

The Plaintiff [buyer], a winery producing sparkling wine, has claimed damages amounting to Deutsche Mark [DM] 60,628.33 (Euros 30,998.77) from the Defendant [seller], a limited liability company under Italian law based in Italy, trading in wine. The claim is based on breach of contract due to an alleged delivery of watery and therefore non-marketable sparkling wine. By judgment issued on 31 May 2001, the District Court (Landgericht) Frankenthal (Pfalz) dismissed the [buyer]'s claim. The District Court held that the [buyer] had not precisely demonstrated and proven that the wine had been diluted at the time of delivery. In particular, the [buyer] had failed to explain the whereabouts of some parts of the delivery at issue, the quality of which was apparently not in question. In any event, the [seller] was able to plead the statute of limitations successfully against the [buyer]'s alleged claims.

The [buyer] requests the Appellate Court (Oberlandesgericht) to reverse the judgment and to order the [seller] to pay to the [buyer] 30,998.77 Euros along with 10% interest thereon per annum since 1 April 1999. The [seller] asks the Appellate Court to dismiss the appeal. Also on appeal, the parties are in disagreement over the mutual responsibility for the ascertained condition of the delivery, and about the issue of the limitation of actions.

On 16 December 1997, the parties concluded a contract of sale for the delivery of 10,000 hectolitres of Italian wine for the production of sparkling wine according to the detailed submissions of the [buyer]. Furthermore, the parties agreed upon the [seller]'s liability for damages in the case of the wine not being of the quality customary in trade. They stipulated B. as the place of jurisdiction. Performing his contractual obligations, the [seller] in Italy on 21 January 1998 sent off 460,800 litres wine to the [buyer] in X. in a tank truck. The delivery arrived in X. on 27 January 1998 and was unloaded straightaway - at the latest, within the following two days. A part of the load (239,445 litres) was stored in the [buyer]'s container No. 93; only this part of the delivery is the subject of this proceeding. The remainder of the delivery - apparently at first stored in container No. 94 - was, as expressly stated by the [buyer] processed and merchandised without any complaint.

On 30 January 1998, the [buyer] took a sample of the delivered goods to carry out a so-called trade-analysis, which, according to the [buyer], did not establish any kind of peculiarity with the quality of the wine. The [buyer] paid both the stipulated purchase price amounting to DM 235,000 and the freight charges.

On 5 February 1998, carrying out a routine control, the State wine controller G. took a sample of container No. 93. Thereafter, the material first stored in this container was made into raw sparkling wine ("Rohsekt" [*]) with various ingredients in container No. 12 (here: only 19,000 litres from the Italian delivery and addition of Spanish basic wine) and container No. 2. On 9 March 1998, the contents of both tanks were taken into custody by the wine-control authority, since the test of the samples taken on 5 February 1998 had established indications of dilution: this suspicion was confirmed by the Jülich laboratory, which had carried out an isotope test. At first instance, the [seller] expressly stated that it could not be denied that the samples taken by controller G. did contain additional water. Subsequent to a report of 26 March 1998, put forward by the official Institute for Chemical Examination Z., the [buyer] alleged an addition of water amounting to between 10 and 20%.

On 10 March 1998, G. took another sample from a sealed tank truck at station X, belonging to the second part of the [seller]'s delivery. The chemical analysis of the sample, carried out by the official authority, established that it was identical to the material delivered before; equally, a sensorial examination led to the conclusion that the tested material was "thin and watery". Whether, as alleged by the [buyer], this material was also tested at Jülich, cannot be inferred unequivocally from the documents.

The [seller] alleges that the second delivery came from the same vessel ("Vasca 2") as the first delivery. The [buyer] had refused to accept the second delivery and returned it to the [seller]. The wine reached S., a company in Italy, via France. On the basis of a note made by the carabinieri per la sanita on 9 October1998 during the later Italian preliminary proceedings and according to the [seller], the examinations executed by an official authority and the Unione Italiana Vini did not show any peculiarities.

The [buyer] had an isotope-test carried out by the special laboratory Eurofins in France. Apparently (laboratory receipt, dated 27 March 1999; advice note), the [buyer] had sent in a sample from the first delivery, a sample of the material (raw sparkling wine) from containers No. 12 and No. 2 and a sample from the second delivery. According to the (conclusive) reports of the laboratory, which were submitted to the Appellate Court on 7 June 2002, all of the samples sent in (apart from the one taken from container No. 12) were found to contain additional water.

Subsequent to the intervention of [buyer]'s attorney in the action at first instance, the [buyer] obtained an exceptional permit by the official authorities for the merchandising of both raw sparkling wine stocks for the production of flavoured beverages containing wine. The [buyer] sold both of the stocks at a markdown price to company D. in B.

Preliminary proceedings against the persons responsible for the [buyer], carried out by the prosecution B., were suspended; subsequent to a telephone conversation with the wine controller G., the public prosecutor in charge of the case laid down in a file note of 6 May 1998 that, according to the documents, an addition of water by the relatives of the [buyer] was to be ruled out. Proceedings in Italy, initiated by the German authorities, against those responsible for the [buyer] were suspended by order of the examining judge M. in L. on 26 January 2000: it could not be ruled out that the wine had been diluted in the period of time between the delivery and the [buyer]'s complaint.

The [buyer] had informed the [seller] about the outcome of the test results by telephone on 9 March 1998 and had criticized the wine as constituting a breach of contract.

The [buyer] denied any kind of manipulation. The [buyer] alleges that subsequent negotiations between the parties about an out-of-court settlement finally failed only at the end of March 1999.

The [buyer] thereby refers particularly to the [buyer]'s efforts - having obtained the exceptional permit - to merchandise the material, which came to an end with the taking delivery of the last quantity by company C. on 9 March 1999, to which the [seller] had agreed. The [buyer] did not respond more precisely to the [seller]'s objection - there was apparently only the telephone conversation mentioned above and one further conversation in September 1998, in both of which the [seller] had rejected the [buyer]'s demands.

The [buyer] calculates the damage at DM 60,628, according to the following breakdown:

1.; 2. Difference between the book value (deposit of goods and performances) of both raw sparkling wine stocks and the price of taking delivery by company C.: DM 32,593.86; respectively DM 52,804.90;

3. Charges for exceptional permits: DM 1,200;

4. Laboratory costs Eurofins: DM 3,524;

5. Legal fees for obtaining the exceptional permit: DM 4,252.60;

6. Storage charges for the period from 27 January to 4 September 1998 at a price allegedly in line with normal business practice: DM 18,030;

7. Set-off of an undisputed counterclaim of the [seller] against the [buyer]: DM 51,777.03.

On this subject, the [buyer] has sent an invoice of 4 September 1998 to the [seller]. On 17 March 1999, the [buyer] followed this with a "last notice to pay" after "repeated demands" had remained unnoticed. That was rejected by the [seller] in the correspondence of 25 March 1999, which was answered by the [buyer] on 29 March 1999. The claim, which was filed at the Lower Court (Amtsgericht) - by way of immediate advance payment - on 23 July 1999, was delivered to the [seller] on 13 June 2000, after both the translation and the submission of the letters of request to Italy had taken a longer period of time.

As laid down in the recitals by the [buyer] in the statement of claim, the delivery did not reach the [seller]'s executive director, but rather the [seller]'s husband, mistaken for the former. At the court hearing of 7 December 2000, the [seller] stated expressly the [seller]'s intention not to criticise this incorrect delivery.

On the [seller]'s objection and the auxiliary plea by the [buyer], the Lower Court (Amtsgericht) B. by decree of 7 December 2000 referred the case to the 2nd Chamber for Commercial Matters (2. Kammer für Handelssachen) of the District Court (Landgericht) Frankenthal (Pfalz) which has jurisdiction in the subject matter.

II. REASONS FOR THE DECISION BY THE APPELLATE COURT

     1. [Buyer's appeal is admissible but unsuccessful]

On its merits, the admissible appeal remains without success. According to the results of the evidence taken by the Appellate Court, it can in fact be regarded as possible or even likely that the [seller] has delivered to the [buyer] wine that was not only in breach of contract but also non-marketable. However, the claims of the [buyer] for damages resulting thereby fail due to the defence of lapse of time being successfully pleaded by the [seller]. A longer period of limitation, which would not yet have expired, would only have applied had the defect been due to facts which the [seller] knew or should have known; the [buyer], however, failed to establish the relevant evidence to demonstrate this.

     2. [Applicability of the CISG]

The [buyer]'s claim for damages could arise from Articles 45(1)(b) and Article 74 of the United Nations Convention on Contracts for the International Sale of Goods (CISG). As laid down correctly in the challenged judgment and not questioned by the parties in the appeal procedure, the CISG is applicable to the contract concluded between the parties according to Article 1(1) and Article 6 CISG: it was a sale of goods between parties in different States - Germany and Italy - that are both parties to the Convention (see Staudinger/Magnus (1999), BGB, Introduction to CISG No. 18 with the relevant index). Neither have the parties excluded the application of the CISG by agreement according to Article 1(1)(b) and Article 6 of the Convention, nor can an agreement between the parties as to an exclusion of the application of CISG be inferred from the parties' stipulation of Germany as the place of jurisdiction or from their choice of German law (see below) which can be concluded from their behaviour in court. German law refers to the CISG being part of German law and therefore being special law (see BGH NJW [*] 1999, pp. 1259-60).

Furthermore, an exclusion of the CISG cannot be inferred from the stipulation of liability for damages for the quality not being in accordance with trade usage (according to point 16) contained in the written contract between the parties. The statutory regulation was not hereby replaced but merely confirmed and made concrete. The parties have not stipulated any special agreements as to the period of limitation; therefore the general rules are effective at least in that respect (see below).

     3. [Merits of the case]

Lastly, the question of whether or not the [seller] has breached his obligation, namely to deliver goods of the quality demanded by the contract (Article 35(1) CISG), and whether the [seller] is therefore liable for damages according to Article 45(1)(b) CISG can be left undecided. At any rate, such a claim would be statute-barred. As already laid down in the challenged judgment, the CISG itself does not contain any statutory limitation rules - apart from Article 39, which is not relevant here; consequently, in principle, the national law agreed to under the rules of private international law, comes into play (Staudinger, Article 3 VertragsG No. 2). As also demonstrated correctly by the trial judge, the choice of German law can be taken for granted according to Article 27 EGBGB [*]. This follows from the agreement on the place of jurisdiction referring to Germany (see Palandt/Heinrichs, BGB, 61st edition, Article 27 EGBGB No. 6; MünchKomm/Martiny, BGB, 3rd edition, Article 27 EGBGB No. 43), and from the fact that the parties agreed at court to rely on the German statutory limitation rules (see, referring to this point, Palandt, Article 27 EGBGB No. 7, 10). In that respect, the German law - Article 3 VertragsG of the CISG - in its version effective until 31 December 2001 and amended by the Statute for the Modernization of the Law of Obligations (Schuldrechts-Modernisierungsgesetz) refers to 477 et seq. BGB [*] in its corresponding version. According to the relevant transitional provisions of Article 229 5 and 6 EGBGB, the previous statutory provisions are still to be applied where they had led to a limitation of actions before 1 January 2002; this is the case here. The previous version of the statute, however, provided for a period of limitation of six months according to 477(1) BGB (original version), which began to run (Article 3 VertragsG, original version) following the notice of lack of conformity in accordance with Article 39 CISG.

Notice of the lack of conformity was undisputedly provided "immediately" after the seizure of 9 March 1998, which might have taken place on 9 March 1998 itself or the following day according to further statements of the parties. On the other hand, it can be established that the limitation of actions was already interrupted at the time the claim was submitted on 23 July 1999 according to 209 BGB (original version) and not just at the time of the service of papers of 13 July 2000 ( 270(3) ZPO [*] in the version which was relevant at that time and effective until 31 December 2002). This service of papers, made almost one year later, can still be regarded as "made soon" within the meaning of 270(3) ZPO (original version), because almost none of the delays that occurred were imputable to the [buyer], but were to be explained due to the process of translating the complaint and the proceeding of service abroad.

The [buyer] immediately answered a request of the Lower Court B (Amtsgericht B.) regarding the jurisdiction and paid the subsequently demanded charges for the translation in advance. The fact that the proceedings were delayed shortly by the suspension from 22-28 September 1999 requested by the [buyer], due to (alleged) conciliation proceedings, does not conflict with the assumption of the service of papers having been carried out soon afterwards; this establishes a delay of not more than two weeks, which has to be regarded as insignificant and therefore irrelevant to the issue (see Zöller/Greger, ZPO, 23rd edition, 167 No. 11). The service of 13 June 2001 was itself effective according to 187 ZPO (in the relevant version, effective until 30 June 2002; now 189 ZPO), even though it had not been addressed to the [buyer]'s executive officer. However, the service can be regarded as "factually" delivered within the meaning of the provision since it got to the premises and reached the undisputed "relevant owner" D. (see also Senate OLGR 01, 279). Moreover, the [seller] has expressly renounced the opportunity to challenge the incorrect addressing of the served papers. Yet, the six months limitation in 477(1) BGB (original version) had already expired by the time between 9/10 March 1998 and 23 June 1999. Circumstances which might have delayed this process cannot be established in the outcome since the [buyer] has not -- not even after representations to that effect in the first-instance judgment -- demonstrated conclusively the required preconditions.

An estoppel by the granting of a right to withhold performance according to 202(1) BGB (original version) is all that can come into consideration. Such an estoppel could be assumed if the parties had concluded a so-called standstill agreement, an express or implied agreement according to which they would not assert a claim in the meantime. That requires the intention of the parties to establish a right to withhold performance for the debtor or to exclude the enforcement of the claim; mere negotiations or further measures of clarification are not sufficient (Palandt 202 No. 8). However, an implied standstill agreement can be assumed where the parties agree on waiting to observe any further development of the damage (Palandt (above); BGH NJW [*] 1986, pp.1337-38). The existence of such an implied agreement is maintained by the [buyer], who refers to the obtaining of the special permit and the marketing of the criticized wine, the entailed losses of which could be minimised thanks to the permit. Nevertheless, the [buyer]'s submissions still do not suffice. The [buyer]'s presentation remains formulaic. The [buyer] has not explained precisely at what time which of the mutual statements for a preliminary standstill agreement had supposedly been made. The fact that the [seller] -- according to the objected allegation of the [buyer] -- is said to have known about the efforts to obtain a special permit, could not suffice. The [seller] concretely replied that, during the only two conversations (telephone conversation in March 1998; personal dialogue in Germany in September 1998), the [seller] had rejected the claims. This was not rebutted by the [buyer]; above all, the [buyer] did not explain when and to whom the [seller] made any contrary statements.

Moreover, the [buyer]'s formulaic submissions are shaken somewhat by the pre-litigation correspondence handed in by the [buyer]. The [buyer] has not cleared up this inconsistency. The [buyer] already settled the claim for damages, later also brought to court against the [seller] with the invoice of 4 September 1998. This invoice does not refer to a standstill agreement but requests the transfer of the amount subsequently sued for. The "last notice to pay" of 17 March 1999 mentions an intermediate "repeated reminding". The period of limitation, however, would also have expired had it started to run with the invoice of 4 September 1998.

The shorter time limit of 477 BGB [*] (original version), however, does not come into play for CISG sales where [in language similar to that of Article 40 CISG] the breach of contract is due to facts which the seller knew or should have known and did not reveal to the buyer (Article 3 VertragsG; therefore almost equivalent to 477(1) BGB, malicious nondisclosure; see v. Caemmerer/Schlechtriem/Schlechtriem, CISG, Article 3 VertragsG No. 9). In this case, a time limit of 30 years would have been applicable, which would have become a three-years time limit after the modernization of the law of obligations as of 1 January 2002, starting from that date (Article 229 6 EGBGB [*] and 195 BGB amended version).

Since it is the short period of limitation, which, according to the statute applies under normal circumstances, the Plaintiff as the buyer has to prove the conditions for the longer time limit, which is beneficial to her (see Staudinger/Honsell (1995) BGB, 477 No. 59; Baumgärtel/Laumen, Handbuch der Beweislast im Privatrecht, 3rd edition, 477 No. 3: referring to 477 BGB, original version).

The [buyer] failed to produce that evidence.

It has not been proven that witness D., acting for the [seller], had conceded during a telephone conversation with witness P. an intentional dilution of the wine delivered by the [seller].

Merchant P., who works for international wine businesses as an agent who had arranged the deal at issue between the parties, and since then has worked to a large extent for the [buyer], but not for the [seller] anymore, in fact confirmed a corresponding statement of D.'s during his examination before the Appellate Court. He had had various telephone conversations with D. subsequent to the complaints raised by the [buyer], in which inter alia the restoration of the second partial delivery was at issue. In one of these conversations, D. had revealed that also his firm was responsible for adding a certain extent of water, which, however, could only have led to the amount detected in the final analysis by similar behavior presumably by the suppliers. Yet, this statement per se does not suffice in convincing the Appellate Court. Such facts, however, conflict with the contradictory statements of D., although the Appellate Court considers there to be no drastic reasons to proceed on the footing that the statements of one or the other side are true. Witness P. failed to convince the Appellate Court of the accuracy of his evidence. He could not -- which is not surprising, considering the time passed in the meantime -- remember properly the wording and other circumstances of the conversation at that time. His statements do not rule out the possibility that he -- influenced by his own expectations and ideas - could have misunderstood D.'s remarks and could have attached too extensive a meaning to them. Finally, he himself committed to the -- objectively not unambiguous - term "corrections", which D. had used for the description of the treatment of the wine carried out by him. Moreover, P. failed to make vivid for the Appellate Court the whole situation of the telephone conversation of that time and also his own subsequent reaction. On the other hand, he did not show any kind of exaggerated attempt to incriminate D.; moreover, by his appearance, he can be well regarded as a serious and honourable merchant. In all, however, there were no sufficiently certain indications, as far as the Appellate Court could see, of the accuracy of the serious accusations made by him. P.'s statements conflict with D.'s testimony. D has confirmed that no water had been added by the [seller]'s company. He claims he neither expressed anything contrary to that during the telephone conversation with P., where he had merely said that somebody else must have added water. Indeed, D. was not an unbiased witness in the litigation; being the apparently economically authoritative person on the [seller]'s side, and as the husband of the current executive officer, he rather appears to be at least as interested in the outcome of the proceeding as the parties themselves. Nor can P., on the other hand, be classified as a neutral witness. According to his own statements, his own commercial relations with the [buyer] appear to be rather closer than to those with the [seller]; in particular, P. still works with the [buyer], whereas he used the incident, which is the subject of the litigation at issue, as an opportunity to stop making further deals with the [seller].

Both of the witnesses have confirmed their statements upon oath.

Not even the considerable weaknesses of D.'s testimony suffice to be able to follow P.'s presentations. Before the Appellate Court, D. initially made unclear and contradictory statements. Only very gradually could his report be put together to form a complete picture, which cannot be explained sufficiently by the difficulties of the required translation. Indications of a high degree of personal credibility or reliability also could not be inferred from the appearance of the witness. Consequently, it seems out of the question to be prepared to found a relevant conviction as regards content on D.'s testimony. Yet, neither do the established conspicuous facts suffice to consider D.'s testimony as rebutted completely by the statements of P. Nor do the statements of further witnesses and the other circumstances of the case considered by the Appellate Court result in the success of the claim. Accordingly, however, significant indications suggest that the disputed wine has not been diluted by the [buyer]'s business, but that it had been delivered by the [seller] already in the condition later criticized by the wine control. This follows from the thoroughly credible statements of witnesses G. and H. about the further treatment of the wine, after being taken out of the sealed tank truck sent by the [seller]. Here, reference has to be made to the result of the analysis, carried out by the laboratory Eurofins, as regards sample No. 1, which was, according to the statements of witness H., taken immediately after the unloading of the tank trucks. Moreover, the [seller] might be presumed -- according to what the statements of witness P. are indicating -- to have a far greater interest in the dilution of the wine than the [buyer]. That interest could well consist of the idea of making the wine, which often has a higher alcoholic content in southern regions, achieve the quality required by the [buyer] for the production of sparkling wine by addition of water and thereby cheaply increasing the quantity. Lastly, the [buyer] convincingly has referred to the fact that she had ordered and undoubtedly received wine with an alcoholic content of 9.2%. Samples No. 1 and No. 4 (from the [seller]'s second delivery) were ascertained to have an alcoholic content of at least 9.13% (tests by Eurofins). As regards the sample taken by the wine control authority, an alcoholic content of 9.16% was diagnosed. This does not leave any substantial scope for an addition of water by the [buyer]. These indications, however, do not establish the required certainty that the [seller] had known or should have known the quality of the material delivered by [seller]. This cannot necessarily be inferred from the delivery of diluted wine. The District Court Trier did not justify more precisely its legal opinion (stated obiter), that the delivery of diluted wine (always) constituted malicious behaviour (NJW-RR 1996, pp.564-5).

The Appellate Court, however, cannot agree with that.

In the case at hand, the parties unanimously assume that the [seller] himself has not been the producer of the delivered wine; that was also the testimony -- besides witness D. -- of agent P. According to the testimony of D., the [seller] had obtained the wine from various producers. It does not appear impossible that those producers have carried out the addition of water and that this was not noticed or at least need not have been noticed in the [seller]'s business. Witness B., at that time working for the [seller], did not make any substantive statements in that respect. Witness D. outlined that the wine sent to the [buyer] had been taken from a quantity that had been supplied by deliveries from various producers, each of a different volume. That a considerable dilution resulted from this procedure, as claimed here by the [buyer], seems to be less likely than if the quantity had come mainly from one producer. In the former case, the various producers would have to have, so to speak, spontaneously and unwittingly worked together for such a dilution. The Appellate Court cannot, however, rule that out. This applies even more due to T.'s statements, according to which the parts of the quantity from the various suppliers were different. The misconduct of some or many major suppliers could therefore have had an effect on the quality of the finished product.

Not even the prima facie evidence requested by the [buyer] can be effective according to the Appellate Court's opinion considering the existing uncertainties. The [buyer]'s relevant considerations on the grounds of appeal are based on the assumption that the dilution must have been carried out at the [seller]'s business; such an ascertainment, however, cannot be made for the reasons mentioned above. Neither can the allegation that the [seller] must have known about the dilution be laid at the [seller]'s door. According to the compatible statements of witness H., nominated by the [buyer], and witnesses D. and B., nominated by the [seller], the analysis of whether or not water had been added constituted -- at that time -- an expensive and unusual method of examination, which could be carried out only by few laboratories and therefore was not used routinely. Thus, the [seller] cannot be charged with the non-performance of the examination. Not even the [buyer], who has -- as evidenced by the written contract of purchase concluded by the parties and its annexes (result of the analysis of the sample left by the [seller]; datasheet) -- taken special precautions to receive a marketable product, has neither carried out such an examination herself nor demanded it from the [seller]. Moreover, the Appellate Court cannot infer anything from the presented facts, especially from the [buyer]'s submissions, that suggests the [seller] could have expected a dilution by its suppliers and therefore had to take special precautions.

In light of all this, the claim according to 823(1) BGB [*], considered above in the grounds for appeal, which the [buyer] wants to base on the spoilage of the ingredients used by her, especially the Spanish basic wine, is not to be considered. Nor in that respect, however, can the [seller]'s fault be established. Besides, a claim based on that by the [buyer] would have expired according to the short period of limitation imposed by the law on sales (see BGH NJW -RR 1993, pp. 793; Palandt (above) 852 No. 1a).

[...]


FOOTNOTES

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

Translator's note on other terms and abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; NJW = Neue Juristische Wochenschrift [a well-known German Law Journal]; Rohsekt = Sparkling wine from the beginning of the second fermentation until the process of taking out the yeast; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Julian Waiblinger, Humboldt University, Berlin, Faculty of Law since 1999; King's College, London, Diploma in Legal Studies 2001/2002. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

***Mark Beamish: Graduate of King's College London - LL.B. Law with German Law (2002); Diploma in German Civil Law, Passau University (2000); LL.M. Master of Law, Humboldt University, Berlin (2003).

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