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CISG CASE PRESENTATION

Germany 30 August 2002 District Court München (Wine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020830g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20020830 (30 August 2002)

JURISDICTION: Germany

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

JUDGE(S): Bachmann (Chair); Hildebrandt, Schornstein (Associate Judges)

CASE NUMBER/DOCKET NUMBER: 12 HKO 5593/01

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: Wine


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39 ; 74 ; 78 [Also cited: Articles 53 ; 61(1)(b) ; 81 ]

Classification of issues using UNCITRAL classification code numbers:

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

39A11 ; 39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Degree of specificity required];

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

78B [Rate of interest]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness ; Lack of conformity notice, specificity ; Damages ; 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): cisg-online.ch website <http://www.cisg-online.ch/cisg/urteile/668.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: 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); 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]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 74 para. 12; CISG-AC advisory opinion on Calculation of Damages under CISG Article 74 [Spring 2006] n.102 (related cases cited in addendum to opinion)

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) München

30 August 2001 [12 HKO 5593/01]

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

Translation edited by Veit Konrad [***]

The District Court Munich, 12th commercial chamber, represented by the judge at the District Court Dr. Bachmann and commercial judges Hildebrandt and Schornstein as associate judges, following the oral hearing of 2 August 2001, hands down the following

FINAL DECISION

I. The [buyer] is ordered to pay to the [seller] 26,835.48 DM [Deutsche Mark] plus 5% interest from 7 February 2001 and 79.50 DM pre-judicial costs.
II. The remainder of the claim is dismissed.
III. The [buyer] bears the costs of the proceedings.
IV. The decision is preliminarily enforceable against the lodging of security in the amount of 31,300.- DM.

FACTS OF THE CASE

The [sellers] are siblings and wine producers with seat in the vicinity of […], Italy. The [buyer] is a wholesaler and retailer of wine who operates a wine shop in Munich and imports wine from Italy. The [sellers] invoiced the [buyer] for wine deliveries in an overall amount of 26,567,100.- ItŁ [Italian Lire]. These claims are undisputed with regard to their amount.

With their claim, the [sellers] seek payment of the entire purchase price, which they have converted to the German currency following the current exchange rate.

The [sellers] request the court to order the [buyer] to pay to the [sellers] DM 26,835.48 plus 10% interest from 7 February 2001 as well as DM 79.50 pre-judicial costs.

The [buyer] requests that the claim be dismissed.

The [buyer] submits that the invoices in question listed wine deliveries that had not been effected in the way they had been invoiced; the [sellers] identified wines in the delivery slips and invoices that differed from the wines which were actually delivered. [Buyer] had asked the [sellers] in vain to draw up orderly invoices. [Buyer] furthermore pleads that the [seller] had delivered defective goods. As a result, [buyer]'s customers had queried the delivered wine and had returned wines already sold. [Buyer] had immediately passed on the respective customer complaints to the [sellers], who had accepted the return of the goods and credited the [buyer]'s account. The delivery of the non-conforming goods had caused considerable damages, both due to the taking back of the wine and due to turnover losses. [Buyer] declares that the [sellers] had a conversation with it regarding compensation for the damages, but that they failed to submit an offer.

With regard to the further submissions, the Court refers to the briefs exchanged by the parties and the documents attached thereto.

REASONS FOR THE DECISION

[Sellers]' claim is admissible and justified with respect to the principal matter. The [buyer] owes the [sellers] the purchase price for the wines delivered.

The [sellers]' claim follows from Art. 53 CISG, under which the buyer must pay the price. The [buyer]'s objection that the [sellers] did not effect the deliveries according to the invoices is unfounded.

The [buyer] in this context solely refers to deliveries listed in two invoices and pleads that the [sellers] charged the same prices for two types of wine of considerably different quality. However, this fact firstly does not allow an inference with respect to all deliveries in dispute. And, secondly, the [buyer] does not submit which type and quantity of wine it ordered and did not receive and which type and quantity of wine the [sellers] delivered to [buyer] instead.

Even if it had turned out - at the latest after receipt of the invoice no. 151 of 12 September 2000 - that the [sellers] had made a delivery of the wrong goods, the [buyer] would have lost its right to rely on this lack of conformity. The [buyer] relied on the alleged lack of conformity only in its statement of defense, that is eight months after the delivery, while it would have been obliged to discover and give notice of the non-conformity within a short period of time as was practicable after the delivery (Art. 39(1), Art. 38(1) CISG).

The requests to draw up orderly invoices, which the [buyer] allegedly posed to the [sellers], do not constitute a notice to the effect that the delivered goods differed from the ones ordered. In case that the ordered goods had been delivered, the invoices, however, listed different types of wine than the ones delivered, the [buyer] would possess a right of retention in the meaning of § 273 BGB [*]. [Buyer] would be entitled to refuse payment of the purchase price until it received an orderly invoice. This, however, would require the pleading of facts revealing which types of wines were delivered and which invoice contained a type of wine different from the one delivered. The [buyer] failed to make corresponding submissions. [Buyer] accordingly also did not declare its intention to rely on a retention right.

The [buyer]'s pleading that the [sellers] delivered defective wines also does not stand in the way of the claim. [Buyer] did not claim that the goods listed in the invoices in question had been defective. The "written complaints" by the [buyer]'s customer do not reveal such a fact. While the complaints do include wines that were delivered by the [sellers] to the [buyer], it is unclear whether they refer to wines from the deliveries in dispute.

Accordingly, the [buyer] does not rely on an avoidance of the contracts which form the basis for the deliveries in dispute. If one follows the [buyer]'s submission that the [sellers] "also took back part of the affected goods" and that [buyer] received corresponding credit, this is of no effect to the invoices in question. The [buyer] has neither declared a set-off with the credited amount, nor does it plead that it was released from its obligation to pay the purchase price following an avoidance of the sales contracts (Art. 81(1) CISG).

Instead, [buyer] submits that it "suffered considerable damages" as a result of the lack of conformity of the deliveries. However, [buyer] does not put an amount to its alleged damages and furthermore did not declare a set-off with any damages claims. The [buyer]'s damages claims would also be unfounded. It need not be decided whether the [buyer] - as it submits - immediately forwarded its customers' complaints to the [sellers] and asked them to take back the defective deliveries. The [buyer] failed to show that it suffered a loss (Art. 74 CISG) as a consequence of the breach of contract. [Buyer] did not submit that it paid the [sellers] for the non-conforming deliveries, respectively that it did not receive a credit by the [sellers] after it had effected payment. Insofar as [buyer] pleads that it did receive a credit, [buyer] did not suffer any losses. The [buyer] furthermore made no submission to the effect that it delivered substitute goods, that is, other wines, to its customers and that it paid a price for those goods which exceeded the one agreed with the [sellers] (Art. 74 CISG). Turnover losses caused by the "loss" of customers, who, because non-conforming deliveries, fail to place new orders, do not constitute a - direct - loss of wealth caused by the [sellers]' breach of contract in the meaning of Art. 74 CISG. In any case, the [buyer] again failed to submit any corresponding facts.

An objection against the [sellers]' claim can also not be based on the fact that the [sellers] - as the [buyer] submits - raised the "possibility" of a "damages compensation", but then did not make an "offer". The [sellers] did not declare an acknowledgement of indebtedness. It was upon the [buyer] to prove a mature claim for damages and to declare a set-off with such a claim before the proceedings were initiated or as a defense to the [sellers]' claim for payment of the purchase price.

The Court can finally leave open the question of whether - as the [buyer] submits - the [sellers]' commercial agent "directly" approached and offered wines to [buyer]'s customers, which the [sellers] then delivered directly to the [buyer]'s customers. [Buyer] did not plead that [buyer] had acted as an authorized dealer for the [sellers]; there are no apparent mutual contractual obligations which formed the basis for [buyer]'s wine purchases. The [buyer] therefore failed to show that the [sellers] were obliged to deliver solely to it or to charge [buyer] lower prices than other customers. Even if that had been the case, the [buyer] would have had to submit the loss [buyer] suffered as a result of the direct deliveries. [Buyer] would have needed to at least name the recipient, the kind and quantity of the delivered wines and their prices. Again, [buyer] failed to make respective submissions of facts.

Consequently, the [sellers]' claim was justified with respect to its principal matter.

The [buyer] was in culpable delay with payment of purchase price on 7 February 2001, as the [sellers]' attorneys sent [buyer] a reminder of payment requesting payment to be effected until 6 February 2001. The [buyer] therefore at the latest at this point in time failed to pay the purchase price (Art. 78 CISG). The interest rate for sums in arrears is fixed at 5%. As the CISG does not provide for an interest rate, the interest rate needs to be determined under Italian law. The contract in dispute is governed by Italian law, as the party obliged to effect the characteristic performance, that is the delivery of the goods, has its place of business in Italy (Art. 28(1) and (2) EGBGB [*]). Under Art. 1284(1) of the Italian Civil Code [C.c.] in connection with Art. 2(185) of the Budget Concomitant Act no. 662 of 22 December 1996, the interest rate is 5% per annum (cf. Kindler, Jahrbuch des italienischen Recht, vol. 10, p. 149-152). The [buyer] is liable for the pre-judicial expenses shown by the [sellers] under Art. 78 in connection with Art. 74, 61(1)(b) CISG.

The decision on costs is based upon § 92(2) ZPO [*], the decision regarding the provisional enforceability is based on § 709 ZPO.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiffs of Italy are referred to as [sellers]; the Defendant of Germany is referred to as [Buyer]. Amounts in German Currency (Deutsche Mark) are indicated as [DM]; amounts in the currency of Italy (Italian Lire) are indicated as [ItŁ].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Ruth M. Janal, LL.M. (UNSW), a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg, has been an active participant in the CISG online database of the University of Freiburg.

*** Veit Konrad has studied law at Humboldt University, Berlin, since 1000. During 2001-2002 he spend a year at Queen Mary College, University of London, as an Erasmus student.

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Pace Law School Institute of International Commercial Law - Last updated November 8, 2006
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