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CISG CASE PRESENTATION
Germany 18 June 2003 District Court Tübingen (Computers and accessories case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030618g1.html]
Primary source(s) of information for case presentation: Case text
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Case identification
DATE OF DECISION: 20030618 (18 June 2003)
JURISDICTION: Germany
TRIBUNAL: LG Tübingen [LG = Landgericht = District Court]
JUDGE(S): Unavailable
CASE NUMBER/DOCKET NUMBER: 21 O 11/03
CASE NAME: German case citations do not identify parties to proceedings
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plantiff)
BUYER'S COUNTRY: Unavailable (defendant)
GOODS INVOLVED: Computers and accessories
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles 39(1) ; 53 ; 78
Classification of issues using UNCITRAL classification code
numbers:
39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];
53A [Buyer's obligation to pay price of goods]'
78B [Rate of interest]
Descriptors: Lack of conformity notice, timeliness ; Price ; Interest
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
Unavailable
CITATIONS TO TEXT OF DECISION
Original language (German): [2003/5] Internationales Handelsrecht 236-237; cisg-online.ch website <http://www.cisg-online.ch/cisg/urteile/814.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 49 Art. 39 para. 17
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Case text (English translation)
Queen Mary Case Translation Programme
District Court (Landgericht) Tübingen
18 June 2003 [21 O 11/03]
Translation [*] by Dr. Andrea Vincze [**]
Edited by Jan Henning Berg [***]
FACTS AND PLEADINGS
Plaintiff [Seller] claims payment of the purchase price for computers and electronic data
processing [EDP] accessories.
The parties concluded a sale of goods contract for the purchase of computers and EDP
accessories. The goods were delivered directly to the customer of Defendant [Buyer], Company
T. According to [Seller]'s presentation and confirmed by the documents the latter provided, this
delivery took place on 7 February 2002. On the same day, receipt of the goods in four packs
was attested by the signature of an employee of Company T. Subsequently, it gave notice to
[Buyer] that some goods were missing. On 6 February 2002, [Seller] sent an invoice to [Buyer],
in which several items were listed and according to which payment was due on 12 February
2002. However, payment was not made.
[Seller] argues that it had fulfilled the contract of sale by delivering conforming goods. It also
stated that it did not deliver less than what was contracted for. [Seller] further contends that the
notice was made only on 15 February 2002.
[Seller] states that the claim for the purchase price was based on Art. 53 CISG and the request for
interest follows from Art. 78 CISG: The amount of interest should be governed by Art. 28(2)
EGBGB [*] under national law. [Seller] further contends that [Buyer] could not base its
arguments on Art. 39 CISG concerning the allegations on missing goods because the notice
concerning the fact that the goods were not delivered in conformity with the contract was not
made in time.
[Seller] requests that the Court order [Buyer] to pay 78,750 [Euros] plus interest, the rate of
interest being a further 8 percent added to the basic interest rate as of 13 February 2002 on.
[Buyer] requests that [Seller]'s claim be rejected.
[Buyer] states that [Seller] did not deliver the goods in conformity with the contract since
Company T., upon receipt of the delivery, found that many of the goods were missing. [Buyer]
further contends that it immediately notified [Seller] about the non-conformity, by all means
within the time limit provided in Art. 35 CISG. [Translator's note: This appears to be a
typographic error, with "Art. 39 CISG" probably intended. ] Notice was made during a
telephone conversation on 6 February 2002 immediately after which a fax was sent as well.
In [Buyer]'s opinion, [Seller]'s claims are unfounded because of non-conforming delivery by
the latter.
JUDGMENT OF THE COURT
[Seller]'s claim is admissible and well founded.
1. 1.1 [Seller] requests payment of the purchase price with reference to Art. 53 CISG.
Concerning that request, [Buyer] cannot raise the objection that not all the goods were
delivered.
a. In the instant case, there is possible evidence in favor of [Seller] that the goods
were fully delivered. [Seller] sent an invoice to [Buyer] on 6 February 2002 in which several
goods were listed, which were packed in four packs. On 7 February 2002, receipt of the four packs was attested on the export bill of lading by one of the employees of [Buyer]'s customer
(i.e., Company T.). All data included in the bill of lading and in the invoice provided that the
goods listed were actually delivered. In the field of commerce, general life experience confers
that it is very likely that the customers received exactly the goods that were ordered and for
which the invoice was sent (BGH [*], 1ZR [*]104/00, judgment on 24 October 2001).
Although that decision by the BGH concerned transport law, these contentions are also
applicable in the instant case. Since the goods were delivered in a closed container and because
[Seller] is a businessperson, it can be contended prima facie that the goods listed in the bill of
lading and the invoice were delivered in the container (BGH, ib. id). Therefore, it would have
been [Buyer]'s obligation to repudiate this possible evidence in favor of [Seller]. However,
[Buyer] did not manage to do so. [Buyer] mentioned only that its customer notified it about the
fact that some goods were missing but failed to provide any evidence thereof. Thus, the
evidence in question was not repudiated.
b. Besides should there have been less goods delivered, pursuant to Art. 39(1) CISG,
[Buyer] should have notified [Seller] about it within a certain time period after the discovery of
non-conformity. The duration of that time period depends on objective and subjective
circumstances of the case but there is a common assumption that it should be short. Properly applying a strict standard, the time period should normally be not more than a few days (Reinhart, UN Kaufrecht:
Kommentar zum Übereinkommen der Vereinten Nationen vom 11.4.1980 über Verträge über
den internationalen Warenkauf, 1991, Art. 39 Rn.5).
According to [Buyer]'s arguments, the purchaser (Company T.) found upon receipt of the
goods that many of the items were missing. That receipt was provable based on the bill of
lading provided by [Seller] and it was not disputed on 7 February 2002 either; therefore the
time period within which notice of non-conformity should have been made started on that exact
date. Yet, [Buyer] stated that it had objected to the non-conformity already on 6 February
2002. That statement is not right, though, because the goods were delivered only on 7 February
2002. Regardless, if [Buyer] made a mistake in its statement and actually meant 7 February
2002, the notice still reached [Seller] only later. [Seller] also added that the fax concerning the
latter issue arrived on 15 February 2002, a copy of which was submitted to the court. The date
of sending is not unambiguously readable on the fax, yet, it is certain that the number of the day
consists of two numbers, "1" being the first and "5" or "9" being the second. Therefore, the
notice of non-conformity was made either on 15 February 2002 or 19 February 2002. Thus, the
time limit was not complied with. Since [Buyer] itself argued that its customer, Company T.,
had immediately informed it about the alleged missing goods, it would have been objectively
and subjectively possible for [Buyer] to forward such notice within a few days, adhering to the
time limit. Yet, because it did so only on 15 February 2002 at the earliest, the time period
required by Art. 39(1) CISG was not complied with, therefore [Buyer] lost its right to rely on
non-conformity of the goods. It further failed to submit any evidence of the alleged notice made
by telephone, not mentioning that the objection on non-conformity should be communicated by
fax at the same time, therefore it could not have been made before 15 February 2002 either.
2. [Seller]'s request for interest follows from Art. 78 CISG. Its prerequisites are simply that the claim for paying the purchase price shall be due and that the party in breach has failed to deliver (Bacher, in: Schlechtriem, Kommemtar zum Einheitlichen UN-Kaufrecht, 3rd ed., 2000, Art. 78
Rn. 17). Since the claim for payment of the purchase price was evidently due according to the
invoice of 13 February 2002 and payment did not take place, those conditions were met. The
interest rate is not provided for in Art. 78 CISG, therefore it shall be determined according to
the complementary applicable national law under the conflict of laws provisions of the forum.
That shall be Art. 28 (1) and (2) EGBGB [*] of German law (Bacher, in: Schlechtriem, Art. 78
Rn. 27 & 32) because the Seller carried out the characteristic service of the contract and it has
its place of business in the Federal Republic of Germany. Therefore, the interest rate shall be
governed by Art. 288(2) BGB [*].
Additional award: The award of costs is governed by Art. 91 ZPO [*]; the decision on provisional enforceability is based on Art. 709 ZPO.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For the purposes of this translation, the German Plaintiff is referred to as [Seller]; the
Defendant is referred to as [Buyer]. Amounts in European currency are indicated as [Euros].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [Civil Code of
Germany]; BGH = Bundesgerichtshof [Federal Supreme Court of Germany]; EDP = electronic
data processing; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuch [German Code
on Private International Law]; ZPO = Zivilprozessordnung [German Code of Civil Procedure];
ZR = Zivilrecht [Civil Law].
** Dr. Andrea Vincze received her law degree from the University of Miskolc, Hungary, in
2002. Currently, she is a Ph.D. candidate at the same university, working on her research
project on international commercial arbitration and ICSID arbitration. She has also dealt with
cross-border and Internet-related copyright issues.
*** 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.
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Institute of International Commercial Law - Last updated October 31, 2007
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