Germany 11 June 2003 District Court Hamburg (Used car case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030611g2.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 327 O 394/02
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: France (defendant)
GOODS INVOLVED: Used Mini-Rover automobiles
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
53A [Buyer's obligation to pay price]; 78B [Rate of interest]
53A [Buyer's obligation to pay price];
78B [Rate of interest]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1089.pdf> [cited as 18 June 2003]; see also <http://www.cisg-online.ch/cisg/urteile/1220.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
11 June 2003 [327 O 394/02]
Translation [*] by Stefan Dietrich [**]
Edited by Jan Henning Berg [***]
Defendant [Buyer] is ordered to pay to Plaintiff [Seller] 23,289.35 Euros together with interest at 5 percentage points above the respective base rate since 1 July 2001 as well as 77.55 Euros together with interest at 5 percentage points above the respective base rate since 28 February 2003.
[Seller]'s claim for interest in excess of this amount is dismissed. [Buyer] has to pay the costs of the litigation. This decision is provisionally enforceable. The period for objection is stipulated at one month from the service of the decision.
I. [Seller] has sued to require [Buyer] to pay the purchase price for used cars.
[Seller] alleges that it sold and handed over five used cars, model "R. M.", to [Buyer], who is domiciled in France, on 1 June 2001 in H___. [Seller] had the property in these cars. The agreed purchase price was Deutsche Mark [DM] 45,550 (= 23,289.35 Euros). On [Buyer]'s demand, single invoices were issued for each car in addition to an overall invoice. [Buyer] handed over two checks in order to settle the purchase price. They were deposited on the same day at the Sparkasse [= German type of savings bank] in H___. The checks were to be credited to an account of [Seller]'s mother-in-law, Mrs. I.H. However, neither check could clear for want of cover, whereby fees in the amount of DM 151.67 (= 77.55 Euros) were incurred. Mrs. H. has "assigned" the damage that [Seller] had incurred because of the checks that could not clear. The purchase price for the cars remains unpaid.
[Seller] seeks to have the court order [Buyer] to pay to [Seller] 23,289.35 Euros together with interest at 5 percentage points above the base rate since 1 July 2001, and to pay to [Seller] check costs in the amount of 77.55 Euros together with interest at 6 percentage points above the base rate since 1 June 2001.
II. Upon request of 20 December 2002, the 27th Civil Division of the District Court of Hamburg ordered the written preliminary proceedings according to § 276 ZPO [*] and gave [Buyer] inter alia a deadline of one month within which to present its defense. At the same time, [Buyer] was notified that a default judgment can be entered against it if it does not respond within the fixed time.
The papers were served on [Buyer] on 28 February 2003 by way of judicial order in international redress pursuant to Art. 7(1) of Council Regulation (EC) No. 1348/2000 on the Service in Member States of Judicial and Extra-judicial Documents in Civil or Commercial Matters (ABl. L 160/2000, p. 37). [Buyer] did not submit any statement regarding its intention to defend itself against the action. Therefore, the court can issue a default judgment pursuant to § 331(3) ZPO on [Seller]'s application without an oral hearing.
III. [Seller]'s claim is accepted, in essence. The court has international and territorial jurisdiction. Its jurisdiction follows from Art. 5 No. 1 a, b of Council Regulation (EC) No. 44/2001 of December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (EuGVVO)(ABl. L 12/2001, p. 1, L 225/2002, p. 13). According to this, a party can be sued in the court of the place where the contractual obligation was fulfilled; in case of a sale of movable goods, the place where the goods were delivered. Thereby, jurisdiction applies to all disputes following from the contract (Thomas/Putzo/ Hüßtege, Art. 5 EuGVVO, Rn. 10). The place of performance is Hamburg, Germany, because this is the place where [Seller] delivered the cars to [Buyer].
On the basis of [Seller]'s submission, which can be taken as conceded according to § 331(1) sentence 1 ZPO [*]:
|(1)||[Seller] is entitled to the payment of the purchase price|
|(2)||Together with interest|
|(3)||As well as compensation of the check costs.|
|(4)||[Seller] is also entitled to interest also in regard to the check costs; however, not to the requested extent.|
1. [Seller]'s claim for payment of the purchase price follows from Art. 53 of the Convention on Contracts for the International Sale of Goods (CISG). The Convention applies pursuant to its Art. 1(1)(a) because the parties have their places of business or, as the case may be, habitual residences (Art. 10 CISG) in Germany and France, and thus in different States, which are both Contracting States to the CISG. [Seller] conclusively argued that it agreed with [Buyer] on 1 June 2001 on the sale of the five used cars at the indicated price and that the cars were handed over. The purchase price claim has also not been extinguished pursuant to § 362(1) BGB [BGB = German Civil Code], which is complementarily applicable according to Art. 7(2), clause two, CISG in conjunction with Art. 28(1) sentence 1, (2) EGBGB [EGBGB = German Code on private international law]. It was not argued, that the acceptance of the checks through [Seller] should happen contrary to the legal assumption of § 364(2) BGB, namely, in lieu of fulfillment. As the cashing of the checks failed for want of cover, no payment occurred.
2. The claim for interest relating to this follows from §§ 284(3), 288(1) BGB in the version which was effective until 31 December 2001, which is authoritative here, according to Art. 229 § 5 sentence 1 EGBGB and which specifies the interest claim under Art. 78 CISG. According to this, interest at 5 percentage points above the base rate is to be paid in case of a monetary debt during the delay. According to [Seller]'s conclusive assertion, the purchase price claim was due, in default of another agreement, on 1 June 2001 and a corresponding invoice was handed over. Thus [Buyer] was in arrears as of 1 July 2001.
3. Moreover, [Seller] is entitled to compensation for the expenses in connection with the checks that could not be cashed out of an assigned right pursuant to Art. 45 No. 3 ScheckG [ScheckG = German law on checks] in conjunction with § 398 BGB. Such expenses are the fees, which Mrs. H. was charged for the refused cashing of [Buyer]'s checks. The applicability of the provisions follows from an analogy to Arts. 63, 64 ScheckG.
4. In regard to these expenses, [Seller] is entitled to procedural interest pursuant to §§ 291, 288(1) BGB since pendency of proceedings, which commenced on 28 February 2003. In contrast, no interest claim can be derived from Art. 45 No. 2 ScheckG. This provision grants interest in respect of the sum of an uncashed check as of presentation. However, already for systematic legal reasons, it does not refer to compensable expenses, already for systematic reasons, because they are first mentioned in Art. 45 No. 3 ScheckG and for which no "presentation" exists. Moreover, it would be absurd to grant interest for a compensable sum, the existence of which the liable person is possibly not aware of.
The order as to costs is based on § 92(2) No. 1 ZPO [*], the order as to provisional enforceability is based on § 708 No. 2 ZPO.
Pursuant to § 338 ZPO, the party against which a default judgment was given, is entitled to an objection against the decision. The period for objection is one month; it is a deadline and starts with the service of the default judgment (§ 339 ZPO). The objection may be filed by submission of the statement of objections by a licensed lawyer at the District Court of Hamburg. In regard to the details reference is directed to § 340 ZPO.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Germany is referred to as [Seller] and the Defendant of France is referred to as [Buyer]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; EuGVVO = Verordnung über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen [Council Regulation of December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters]; ScheckG = [German law on checks]; ZPO = Zivilprozessordnung [German Civil Procedure Act].
** Stefan Dietrich, Dipl. iur University of Bochum, LL.M. University of London (2004/2005). His fields of law are International Commercial Law and Corporate Law. Since January 2006 articled clerk with the Higher Regional Court (OLG) Hamm.
*** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis Moot and 4th Willem C. Vis (East) Moot.Go to Case Table of Contents