Germany 18 June 2003 District Court Tübingen (Computers and accessories case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030618g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 21 O 11/03
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:
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]
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]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
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:  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. 17Go to Case Table of Contents
Queen Mary Case Translation Programme
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.
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.
* 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.Go to Case Table of Contents