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CISG CASE PRESENTATION

Switzerland 10 March 2003 Cantonal Court Appenzell Auserrhoden (Machine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030310s1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20030310 (10 March 2003)

JURISDICTION: Switzerland

TRIBUNAL: KG Appenzell Ausserrhoden [KG = Kantonsgericht = Cantonal Court]

JUDGE(S): W. Kobler (Präsident); Kantonsrichter H.P. Wick Fischer, E. Geiger Th. Bruppacher; Kantonsgerichterin S. Lenz; Kantonsgerichsschreiberin M. Epprecht

CASE NUMBER/DOCKET NUMBER: Proz, Nr. 433/02

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Switzerland (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Machine


IHR headnote

Headnote provided at Internationales Handelsrecht (6/2004) 254

"1. The buyer who is obliged to pay before delivery is entitled to defer payment as long as the seller is in default with the agreed determination of a date for the collection of the goods.

"2. If the seller has - without fixing a particular period or date - promised to deliver the goods within about one and a half months, a delivery after more than three months is not within a reasonable time according to Art. 33(c) CISG.

"According to Art. 74 CISG, the damages claimed have to be assessed on a concrete basis. An estimate of damages (as under Swiss law, Art. 42 OR) is not admissible."

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UNCITRAL case abstract

SWITZERLAND: Cantonal Court of Appenzell Ausserrhoden (Machine case) 10 March 2003 [433/02]

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/87],
CLOUT abstract no. 883

Reproduced with permission of UNCITRAL

Abstract prepared by Thomas M. Mayer

concluded a contract of sale concerning a machine being used by a third company until the beginning of March 2002. The agreed sale price was 15,000 euros, payable 14 days before the delivery of the machine. The precise date for taking possession of the machine was to be communicated to the buyer in the course of the following days. Notwithstanding several requests from the plaintiff, the defendant never communicated a date for taking possession. Following the expiry of a final additional period of time fixed by it, the plaintiff brought an action for damages before the competent court, claiming the payment of approximately 7,000 euros as compensation for the loss that it had suffered by reason of the resale of the machine to a Turkish customer.

The court held that, in accordance with article 71(1) CISG, the plaintiff was entitled to suspend the performance of its obligation to pay the sale price. Citing article 33(c) CISG, it further held that the defendant should have fixed a date for delivery of the machine no later than the beginning of April 2002. In accordance with article 49(1)(b) CISG, the plaintiff, having unsuccessfully fixed an additional period of time for performance within the meaning of article 47(1) CISG, was thus entitled to terminate the contract on 29 April and could claim compensation for its loss. However, the court considered that the loss asserted had not been sufficiently demonstrated. For that reason it finally rejected the claim.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 33(c) ; 47(1) ; 49(1)(b) ; 58 ; 71(1) ; 74

Classification of issues using UNCITRAL classification code numbers:

33C [Time for delivery: where not fixed by or determinable from contract, reasonable time after contract's conclusion];

47A [Notice fixing additional final period for performance: buyer's right to fix additional period for performance];

49A21 [Buyer's right to avoid contract: seller does not deliver or refuses to deliver within additional period set under art. 47];

71A [Grounds for suspension of performance: apparent that other party will not perform substantial part of obligations];

74A [General rules for measuring damages (loss suffered as consequence of breach): computation, burden of proof]

Descriptors: Delivery ; Nachfrist ; Avoidance ; Suspension of performance ; Damages ; Burden of proof ; Legal costs

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language German: CISG-online.ch website <http://www.cisg-online.ch/cisg/overview.cfm?test=852>; Internationales Handelsrecht (6/2004) 254-256

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Kantonsgericht [Cantonal Court] of Appenzell Ausserrhoden

10 March 2003 [No. 433/02]

Translation [*] by Mariel Dimsey [**]

Edited by Jan Henning Berg [***]

[...]

VALUE OF THE CLAIM: Swiss francs [CHF] 9,500.00.

POSITIONS OF THE PARTIES

[Buyer]'s action

     a) The Plaintiff [Buyer]:

aa) Before the Justice of the Peace (Vermittleramt) and in the statement of claim:

     1.   [Seller] should be obliged to pay [Buyer] the amount of Euro 6,599.76 plus 5% interest since 10 May 2002.
     2. The amount in Swiss francs owing to [Buyer] should be determined in the judgment.
     3. The right of [Buyer] to amend its claim (Nachklagerecht) should be noted, subject to costs and damages.

          bb) Before the court:

     4.   [Seller] should be obliged to pay [Buyer] the amount of Euro 7,179.76 plus 5% interest since 10 May 2002.
     5. The amount in Swiss francs owing to [Buyer] should be determined in the judgment.
     6. The right of [Buyer] to amend its claim (Nachklagerecht) should be noted, subject to costs and damages.

[Seller]'s response

     b) The Respondent [Seller]:

aa) Before the Justice of the Peace (Vermittleramt): The above claims should be rejected in their entirety.

bb) In the response to [Buyer]'s claim and before the court: If this point is to be argued, the claim should be dismissed and everything should be subject to costs and damages.

FACTUAL BACKGROUND

A. [Chronology of events]

     1. On 21 January 2002, [Seller] sent [Buyer] information and photos concerning a particular machine by e-mail, which, according to [Seller], was operational in the company of a third party until approximately the beginning of March 2002 (act. 4/1).

     2. On 24 January 2002 (act. 4/2), the parties concluded a sales contract regarding the above-mentioned machine. A price of Euro 15,000.00 was agreed on, payable fourteen days before collection from Switzerland. Furthermore, [Buyer] was informed that the precise collection date would be communicated to it in the following days.

     3. By e-mail dated 25 January 2002, [Buyer] confirmed to [Seller] the purchase of the machine and requested the dispatch of an invoice and communication of the collection date (act. 17).

     4. On 3 February 2002, [Seller] sent [Buyer] an invoice, which contained its request for payment of the purchase price by bank transfer by 22 February 2002 (act. 4/3).

     5. By e-mail dated 10 February 2002, [Seller] informed [Buyer] of the postponement of the collection date and stated that further information would be forthcoming (act. 4/5).

     6. By e-mail dated 7 March 2002, [Buyer] reminded [Seller] that the communication of the definite delivery date was still outstanding, in response to which [Seller] informed on the same day that it itself had not yet received information as to the precise date from the suppliers; however, the reasons for the delay were known (act. 4/6).

     7. On 8 March 2002, [Buyer] concluded a sales contract with Company C for a machine at a purchase price of Euro 21,500.00. The delivery date for this machine was set for around 15 March 2002 (act. 4/12).

     8. By e-mail, [Buyer] set [Seller] a deadline until 8 April 2002, in which to state whether it could perform the contract at all (4/7). By e-mail dated 8 April 2002, [Seller] disputed its alleged inability to perform and referred to the lack of communication of the delivery date of the machine from the suppliers (4/8).

     9. With letter dated 12 April 2002, the then-legal representative of [Buyer] set [Seller] a deadline until 17 April 2002, in which to state a collection date (act. 4/9). In its letter dated 16 April 2002, [Seller] referred to the statement contained in the offer dated 21 January 2002 of an approximate delivery date at the beginning of March and re-emphasized its current inability to give a precise collection date (act. 4/10). In response thereto, the then-legal representative of [Buyer] demanded payment of Euro 6,500.00 by 10 May 2002 (act. 4/11).

     10. With letter dated 16 April (in any case, May) 2002, [Seller] again disputed its alleged inability to perform and re-emphasized the comprehensive information supplied by it to [Buyer] regarding the temporal course and the background (act. 11/1). By means of a fax dated 17 May 2002, the then-legal representative of [Buyer] set [Seller] a final deadline of 23 May 2002 to resolve the dispute outside the courts (act. 11/2).

     11. In this proceeding, [Buyer] claims a total of Euro 7,179.76 plus 5% interest since 10 May 2002, in accordance with its legal pleadings before the court.

B. [Earlier proceedings]

On 21 May 2002, [Buyer] requested settlement proceedings (Vermittlungsvorstandes). Settlement was attempted to no avail on 12 June 2002; however, the protocol was left open until 12 August 2002 (act. 1). With its statement of claim dated 11 July 2002, [Buyer] brought the matter in dispute before the competent court (act. 3). The response to [Buyer]'s claim was received by the Court on 3 October 2002 (act. 10). On 17 February, the main proceedings were held in Herisau, on the occasion of which the parties signed a settlement agreement subject to a right of revocation (act. 18). By letter dated 27 February 2003, [Buyer] revoked the settlement agreement (act. 19). On 10 March 2003, the final hearing took place in Trogen.

C. [Buyer's position]

To establish its claim, [Buyer], acting through its legal representative, basically indicated in the statement of claim and before the court that, in the sales agreement dated 24 January 2002, a due date for payment of fourteen days before delivery was agreed upon, with delivery to take place at the beginning of March. In accordance therewith, a due date for payment of 22 February 2002 was stated by [Seller] in the invoice dated 3 February 2002. In the telephone conversations subsequent to the conclusion of the contract, 11 March 2002 was set as the collection date. On 25 January 2002, [Buyer] then resold the machine to [Turkish] Company C by a sales contract concluded over the telephone, followed by written confirmation of this agreement on 8 March 2002. Since [Buyer] assumed that [Seller] was going to comply with the delivery date of 11 March, it agreed upon a delivery date of 13 March 2002 in the agreement with Company C. A delivery date was doubtlessly agreed upon between the parties, as if this had not been the case, then a dissent would have to be assumed regarding the delivery date and the expression of intention in the offer of [Seller] would then have to be interpreted according to the principle of good faith (Vertrauensprinzip). The approximate delivery date of the beginning of March would perhaps mean 26 February, or even as late as 10/11 March for a reasonable contractual partner. Therefore, [Buyer] was entitled, in good faith, to rely upon the machine being ready for collection within the first two weeks of March at the latest. The term "beginning of March" became a part of the contract and, due to its failure to deliver the machine on time, [Seller] was in default. The fact that, by the communication of [Seller] regarding the delay in delivery, the due date for payment was extended implicitly, is to be held against the claim of [Seller] that, as long as the purchase price remained unpaid, it could not have been in default. It was thereby in the hands of [Seller], in fixing an actual collection date, to determine the due date for the purchase price. [Seller] never did this, and consequently was in default and is obliged to pay damages. The damages consist of the lost profits from the transaction with Company C., as well as the fees of the German legal representative. In addition, [Buyer] must be able to reserve the right to amend its claim (Nachklagerecht), as it could suffer further damages owing to the potential loss of the business relationship with its Turkish customers. An amendment of claim is factually not present; however, this would be permissible anyway. Finally, counsel for [Seller] wrongly disputes the interest of legal protection (Rechtsschutzinteresse).

D. [Seller's position]

In contrast thereto, [Seller] generally asserted in the response to [Buyer]'s claim and during the main negotiations that, alone due to [Buyer] establishing contact, it could be seen that the machine in question would fall victim to a substitute project of the owner; however, the precise cessation date was yet to be determined. It was also mentioned in the sales agreement that the collection date was still to be communicated. By e-mail dated 25 January 2002, [Buyer] requested an invoice and a collection date. This e-mail also included the sentence that they would continue to stay in contact. This remark referred to the fact that the delivery date still remained open. A definite collection date was not agreed upon, i.e., a just-in-time transaction was not at stake. According to the sales agreement, the payment of the purchase price before delivery or collection was agreed upon. [Buyer] requested an invoice, which it then received, but no payment was made. In this regard, there was clearly an obligation on [Buyer] to perform its obligation first. On 7 March, [Buyer] threatened legal action, and then concluded the so-called sales contract with the Turkish company on 8 April, and then waited until 28 April. The risk associated with the on-sale must be borne by [Buyer]. Contact with [Seller] by telephone continued to occur. With regard to the damages asserted by [Buyer] and to be proven by him, there is firstly a lack of fault on behalf of [Seller], but also a lack of causal connection. In the alternative, if [Seller]'s liability could generally be accepted, this would have to be assessed by the judge.

E. In the following reasons for judgment, further factual matters and further assertions of the parties will, to the extent necessary, be discussed.

REASONING OF THE CANTONAL COURT

     1. a) Germany and Switzerland are member states of the Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the so-called Lugano Convention, SR [*] 0.275.11), as a consequence of which the applicability of the provisions of the Lugano Convention to the present dispute must first be examined (cf. Art. 1(2) IPRG [*]). According to Art. 2(1) Lugano Convention, subject to the provisions of this Convention, persons who reside in the sovereign area of a member state, regardless of their nationality, can be brought before the courts of this state in legal actions. Decisive for jurisdiction is therefore the place of residence of [Seller]. [Seller] has its place of residence in S. [Switzerland], which leads to the application of local jurisdiction. As local jurisdiction already results from an application of Art. 2(1) Lugano Convention, there is therefore no further need to examine whether Art. 5 Lugano Convention would give rise to special jurisdiction. Subject matter jurisdiction of the Cantonal Court of Appenzell Ausserrhoden is established similarly (Art. 12(1) ZPO [*]).

          b) Associated with the question of the applicable law, Art. 118(1) IPRG refers to the Convention on the Law Applicable to International Sales of Goods (the so-called Hague Convention, SR [*] 0.221.211.4). This Convention can, however, not be applied to the above question, as the parties to the present proceedings are located or reside in Germany and in Switzerland, respectively, and both states do not fall within the sphere of application of the Hague Convention. However, both states are member states of the United Nations Convention on Contracts for the International Sale of Goods (so-called CISG, SR 0.221.211.1). Consequently, the CISG applies as the applicable law. This results either from Art. 1(1)(a) CISG or from Art. 118 IPRG together with Arts. 2(1), 3 Hague Convention; here, the CISG is to be regarded as the domestic law (Honsell/Vogt/Schnyder, Kommentar zum Schweizerischen Privatrecht, Internationales Privatrecht, Basel 1996, Reason 4 on Art. 118). The Swiss law of obligations is, however, subsidiarily applicable (SG GVP 2000, No. 66; SZIER 2002 p. 143).

          c) The claim is concerned with payment in a foreign currency. Such a claim is admissible (OGer AR, decision dated 27 August 1996 in the matter of S. AG against J.H., Case No. 9/95).

          d) [Buyer] has amended its pleadings before the court to the extent that it now demands Euro 7,179.76. According to Art. 114(1) ZPO [*], after the dispatch or submission of the claim, changing the pleadings is only permitted if the opposing party agrees, or if the change does not fundamentally burden the proceedings and the legal position of the opposing party is not impaired. [Seller] has not given its consent to the additional Euro 580 claimed by [Buyer] and the amendment of the pleadings doubtlessly impairs the legal position of [Seller]. Therefore, an inadmissible amendment to the claim has been made, which must be disregarded.

          e) According to Art. 115(1) ZPO, the value of a dispute over a claim for payment of money is ascertained according to the pleadings of the Claimant. Claimant [Buyer] is asserting a claim of Euro 6,599.76, a claim for a foreign currency. A foreign currency is to be converted at the average exchange rate for dividends at the point in time the judgment becomes legally effective (supplementary volume Frank in Frank/Sträuli/Messmer, Kommentar zur zürcherischen Zivilprozessordnung, Zürich 2000, para 1 on 18). [Buyer]'s claim became legally effective with the making of determinative pleadings on 21 May 2002 (Art. 118(1) ZPO). [Buyer]'s claim of Euro 6,599.76, converted as of 21 May 2002, produces CHF 9,596.71 (Conversion under: <http://www.oanda.com/convert/classic>). Consequently, the value of the dispute amounts to approx. CHF 9,500.

          f) According to Art. 99 ZPO [*], a claim or another pleading will only be examined if a legal interest in the judgment exists. Not only every claim, but also every application is to be based upon a factual or legal interest of legal protection (M. Ehrenzeller, Zivilprozessordnung des Kantons Appenzell A.Rh., Speicher 1988, para 1 on Art. 99 ZPO). As the conversion only becomes relevant in the context of the prosecution, in relation to point 2 of [Buyer]'s pleadings, the interest of legal protection is absent. In addition, the debtor can make payment in the currency provided for in the contract. In any case, the Court cannot be obliged to convert the claim into Swiss currency on the day of judgment (M. Ehrenzeller, ibid, para 5 on Art. 203 ZPO). As a consequence of the lack of interest of legal protection, point 2 of [Buyer]'s pleadings cannot, therefore, be admitted.

          g) The remaining procedural condition to be examined ex officio (Art. 116(1) ZPO) is fulfilled in the present case. Therefore, the claim is admissible.

     2. a) Both parties agree in their assumption that a valid sales agreement was concluded (act. 3/p. 3 and act. 10/p. 3). The subject matter of the agreement, the purchase price and the guarantee were explicitly provided for in the sales agreement dated 24 January 2001 (act. 4/2). The collection date of the machine was not provided; however, the communication of the precise collection date was foreseen for the following days in the sales agreement, which was titled as an "order confirmation" (act. 4/2).

          b) [Seller] relies on the point of view that [Buyer] was obliged to make prior performance with respect to the payment of the purchase price. [Buyer] did not fulfill this obligation, for which reason [Seller] could not have fallen into default. In this regard, [Buyer] raises the defense that a delivery date had been agreed upon between the parties. As [Seller] did not deliver the machine on time, [Seller] fell into default.

In the sales agreement dated 24 January 2002, it was agreed (act. 4/2) that the price of Euro 15,000 was payable fourteen days before collection. By e-mail dated 25 January 2002, [Buyer] asked [Seller] (act. 17) to send it the invoice and to inform it of the collection date. On 3 February 2002, [Seller] fulfilled this request and demanded payment by 22 February 2002 (act. 4/3). However, already on 10 February 2002, [Seller] informed that there would be a delay (act. 4/5) and indicated on 7 March 2002 that a collection date was not yet determinable (act. 4/6).

According to Art. 71(1) CISG, a party can suspend the performance of its obligations if, after the conclusion of the contract, it turns out that the other party will not perform an essential part of its obligations, either due to a grave defect in its ability to perform the contract, or in its ability to pay, or due to its behavior in preparation for performance or during performance of the contract. Consequently, [Buyer] was entitled to suspend performance of its obligation to pay from 10 February 2002. On this date, [Seller] informed [Buyer] firstly about the postponement of the collection date and it was thereby obvious that [Seller] was not going to be able to comply with the fourteen-day period for the provision of the machine after payment. The obligation of prior performance of [Buyer] was thereby suspended; a communication of [Seller] concerning the precise collection date would have been required in order to rejuvenate [Buyer]'s payment obligation.

          c) On 12 April 2002, [Buyer], acting through its then-legal representative, set a deadline of 17 April 2002 (4/9), by which the collection date of machine was to be announced. However, by e-mail dated 16 April 2002, [Seller] stated that it was still unable to announce a precise date and founded this on problems with a third company (4/10).

The deadline set by [Buyer] is to be regarded as an additional period of time (Nachfrist) within the meaning of Art. 47(1) CISG; according to this provision, the buyer can set the seller a reasonable additional period of time for the performance of its obligations. Such an additional period of time can only be set by the buyer if the seller has not performed its obligations under the contract (Schlechtriem, Kommentar zum Einheitliche UN-Kaufrecht, 3rd ed., Munich 2000, para 5 on Art. 47). The sales contract concluded between the parties dated 24 January 2001 (act. 4/2) provided for the collection of the machine by the buyer from its location in Switzerland, after [Seller] -- and here is its fundamental obligation -- had communicated the collection date. According to this, the question must be posed as to until which point [Seller] would have been obliged to fulfill its obligation to make the machine available. In the sales agreement dated 24 January 2001 (act. 4/2), the collection date was left open. As a consequence thereof, [Seller] would have had to deliver the machine within a reasonable period of time after the conclusion of the contract (Art. 33(c) CISG). As to the question of what would have been a reasonable period of time, [Seller] mentioned in its first e-mail dated 21 January 2002 that the machine was currently still in operation until approx. the beginning of March (cf. act. 4/1) and that this must also be considered in the present case. Consequently, at this stage, it was indicated to [Buyer] that the machine would be available in approx. 1.5 months. Extending this period of time twice as long resulted in an approximate date of availability and collection of the beginning of April. In any case, a period of time still longer than this could no longer be regarded as a reasonable period of time within the meaning of Art. 33(c) CISG. According thereto, [Seller] would have had to have made the machine available for collection by the beginning of April 2002. [Seller] obviously did not fulfill this obligation.

          d) By letter dated 29 April 2002, i.e., after the expiry of the additional period of time set by [Buyer], [Buyer] declared that it would refuse the further performance of the contract and was instead making claims for damages (act. 4/11). [Buyer] asserted the lost profits from the transaction with the Turkish company, as well as the fees of the German legal representative as damages (act. 3/p. 3).

Here, a declaration of avoidance within the meaning of Art. 49(1)(b) CISG becomes relevant; the buyer can declare avoidance of the contract if, in the case of non-delivery, the seller does not deliver the goods within the additional period of time set by the buyer under Article 47(1), or if [Seller] declares that it will not deliver within the period of time so set (cf. Schlechtriem, ibid, para 2 on Art. 47). The damages to be compensated by a breach of contract committed by one party are the losses incurred by the other party as a consequence of the contractual breach, including loss of profits (Art. 74, first sentence CISG). Lost profits are defined here as every prevented increase in value caused by the contractual breach (Schlechtriem, ibid, para 23 to Art. 74). The damage incurred to the creditor by a breach of contract is to be calculated by the concrete method of calculation (Schlechtriem, ibid, para 28 et seq to Art. 74). An estimation of the damages, as would be undertaken under Swiss law (cf. Art. 42 OR; ZR 100 p. 101, 102), is therefore not permitted. The buyer bears the burden of proof with respect to the existence of damage; it has to substantiate and specify the damage for evidentiary purposes (Schlechtriem, ibid, paras 47, 48 to Art. 74).

In the present case, it can be seen from the files (act. 4/12) that [Buyer] intended to re-sell the machine for a price of Euro 21,500. As the sales contract with the Turkish company provided for delivery EXW, and absolutely no reference was made to the location of the machine in Switzerland, it must be assumed that only the company of [Buyer] in Wuppertal could be understood as "works". However, the costs [Buyer] would have had for the transportation of the machine from Switzerland to Germany are left open. These transportation costs would have had to be borne by [Buyer] and these costs would have had to be deducted from the profit from the re-sale of the machine to the Turkish company. Consequently, the concrete damages that [Buyer] actually incurred are not clear.

In summary, it must be held that [Buyer] has not provided legally sufficient evidence as to which damages it actually suffered. Consequently, its claim must be rejected.

     3. a) The legal costs are usually borne by the losing party (Art. 81(1) ZPO [*]). According to the course of proceedings, the official costs will be borne by [Buyer]. The court costs have been determined as CHF 1,700.

          b) Art. 86(1) ZPO states that the losing party shall be obliged to reimburse the winning party with all costs caused by the legal dispute. Starting from a dispute value of CHF 9,596.71, average fees of CHF 2,707.90 (Art. 9(2)(b) Swiss Attorneys' Fee Schedule) is reached. In additional, petty cash expenditure of CHF 50, plus VAT are to be added. Thereby, [Buyer] is to compensate [Seller] with out-of-court costs in the total amount of CHF 2,970.

CONSEQUENTLY, THE CANTONAL COURT HELD:

     1. [Buyer]'s claim is dismissed.

     2. The official costs, comprising

CHF 110 lodging fees (Vermittlungsgebühr)
CHF 1,700 court fees
__________________
CHF 1,810 in total,

will be borne by [Buyer], including set-off of the advanced payments of CHF 410 made by it.

     3. [Buyer] is obliged to compensate [Seller] out-of-court in the amount of CHF 2,970.

     4. Instructions as to Legal Proceedings:

Whoever, after the handing down of the judgment, will appeal to the Supreme Court of Appenzell A.Rh., and wishes to pursue this, must submit a declaration of appeal, with this decision attached, to the Supreme Court chamber, 9043 Trogen, within fourteen days after the handing down of this founded judgment. Faxes and e-mails are not legally valid and have no effect with regard to the observance of limitation periods.

The declaration of appeal must contain information concerning in which points this judgment is appealed, which amendments are demanded and which evidentiary applications will be made. If the appeal is solely concerned with the issue of costs, this must be made in writing.

In civil law disputes, in addition to these provisions, that the appeal declaration is to contain all new factual claims and must be submitted in sufficient copies for the court and the opposing party also applies.

     5. Provided to the parties via their legal representatives.

     -  Judgment not given orally.

     -  Appeal registered by [Buyer] through its attorneys on 14 March 2003.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Claimant is referred to as [Buyer] and the Respondent is referred to as [Seller]. Amounts in the currency of Switzerland (Swiss Francs) are indicated as [CHF]; amounts in European currency are indicated as [Euro].

Translator's notes on abbreviations: IPRG = Gezetz über das Internationale Privatrecht [Swiss Code on Private International Law]; OR = Obligationenrecht [Swiss Code of Obligation]; SR = Swiss collection of Federal law; VAT = Value Added Tax; ZPO = Zivilgesetzbuch [Swiss Code of Civil Procedure].

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

*** Jan Henning Berg is a law student at the University of Osnabrück, Germany, who participated in the 13th Willem C. Vis Moot with the Osnabrück team. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and the 4th Willem Vis (East) Moot.

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