Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Germany 25 July 2003 Appellate Court Düsseldorf (Rubber sealing parts case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030725g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20030725 (25 July 2003)

JURISDICTION: Germany

TRIBUNAL: OLG Düsseldorf [OLG = Oberlandesgericht = Provincial Appellate Court]

JUDGE(S): Plum, Heinen, Dr. Allstadt-Schmitz

CASE NUMBER/DOCKET NUMBER: 17 U 22/03

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: 1st instance Landgericht Mönchengladbach (7 O 199/02) 20 December 2002

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Rubber sealing parts (auto accessories)


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7 ; 8 ; 18 ; 19 [Also cited: Articles 14 ; 25 ; 34 ; 53 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): set-off];

7A3 [Principles of interpretation: observance of good faith];

8A ; 8C [Intent of party making statement or engaging in conduct ; Interpretation in light of surrounding circumstances];

18A [Criteria for acceptance of offer];

19A ; 19C [Reply purporting to accept offer but containing additions or modifications; Modifications that are material];

Descriptors: Scope of Convention ; Set-off ; Good faith ; Standard terms and conditions ; Battle of the forms ; Acceptance of offer

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents

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/919.pdf>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents

Case text (English translation)

Appellate Court (Oberlandesgericht) Düsseldorf

25 July 2003 [I-17 U 22/03]

Translation [*] by Mariel Dimsey [**]

Edited by Instituts für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg

Daniel Nagel, editor [***]

[...]

JUDGMENT

On the basis of oral hearings on 11 June 2003, Presiding Judge Plum, Judge Heinen and Judge Dr. Allstadt-Schmitz held:

The Respondent [Buyer]'s appeal against the judgment of the First Chamber for Trade Matters of the Mönchengladbach Landgericht [District Court] of 20 December 2002 is dismissed. The costs of the appellate proceedings are to be borne by the [Buyer]. The judgment is provisionally enforceable.

REASONING

A. The Claimant [Seller], located in Carobbio degli Angeli, Italy, who had a continual business relationship with the [Buyer] located in Grevenbroich [Germany], requests the remainder of a purchase price in the amount of EUR 12,409.64, arising from a delivery of rubber sleeves that was made in May 2000. Against this claim, the [Buyer] declared a set-off with a claim for damages in the same amount, derived from an alleged delay in delivery in respect to another sales contract executed in 1999.

In accordance with § 540 No. 1 German Civil Procedure Regulations (ZPO), reference is made to the actual findings of the Court of First Instance in the challenged judgment in respect to the details of the subject matter of the dispute.

The Court of First Instance allowed the [Seller]'s claim in all respects. In its reasoning, it stated that the set-off declared by the [Buyer] against the otherwise undisputed claim for the purchase price constituted a breach of the principle of good faith, as, by concluding the sales contract in 2000, the [Buyer] had intentionally created the possibility of setting-off in order to avoid a claim in a foreign country.

The [Buyer] appeals against this decision, The [Buyer] challenges the reasoning of the Court of First Instance. [Buyer] also continues its approach taken in the First Instance by repeating and intensifying its plea to have the claim dismissed. [Buyer] alleges that it is entitled to the counterclaim made by way of set-off. Following an indication from the court, [Buyer] further holds the view that, as a consequence of the incorporation of its standard terms of purchase (p. 122 of the court file), German law is to be applied to the contract, which allows a set-off.

The [Buyer] applies for the challenged judgment to be amended and the (initial) claim to be dismissed.

The [Seller] files for the appeal to be dismissed. It defends the challenged judgment. [Seller] denies that [Buyer]'s standard terms of purchase were incorporated in the contract and further alleges that the [Buyer] is not entitled to the counterclaim in question.

For further details of the subject matter of the dispute, reference is made to the letters exchanged between the parties, as well as to the documents on file.

B. The [Buyer]'s appeal is admissible, but unsuccessful. The Court of First Instance was correct in finding the [Buyer] liable to pay an amount of EUR 12,409.64 plus interest.

      I. According to Art. 53 CISG, the [Seller] is entitled to its claim for payment in the amount of EUR 12,409.64.

            1. The provisions of the United Nations Convention on the International Sale of Goods dated 11 April 1980 (BGBl. [*] 1989, Part II, p. 588 et seq., CISG) are applicable to the legal relationship between the parties, who concluded a sales contract for the delivery of goods. The parties are located in Italy and in the Federal Republic of Germany, respectively, and thereby in different Contracting States of the Convention (Arts. 1(1)(a), 100(2) CISG). In Italy, the Convention entered into force on 1 January 1988 (cf. Schlechtriem, CISG, 3rd ed., Appendix I, p. 923), in Germany on 1 January 1991 (BGBl. 1990, Part II, p. 1477).

            2. According to Art. 53 CISG, which is accordingly applicable, the [Buyer] is liable to pay the [Seller] the purchase price for the rubber sleeves it obtained, which were invoiced by the [Seller] on 11 May 2000 (p. 11 of the court file) and on 19 May 2000 (p. 12 of the court file). On 10 November 2000, the [Buyer] paid an amount of EUR 2,064.09 of the total amount of these invoices of EUR 14,473.73 (Deutsche Mark [DM] 28,308.15), with the consequence that, from these invoices, an undisputed amount of EUR 12,409.64 still remains open.

      II. This remaining claim for payment is not extinguished by the set-off declared by the [Buyer] with its asserted counterclaim in the same amount, either. The reason for this is that the [Buyer] cannot set-off with respect to the claim in the present legal dispute.

            1. However, the set-off is not inadmissible solely for the reason that the German courts do not have international jurisdiction in this regard. On the contrary, in its earlier case law, the German Federal Supreme Court (Bundesgerichtshof) had accepted the application of the Brussels Convention -- also applicable to the present dispute -- whereby a set-off with a disputed, unrelated counterclaim, according to the correct application of Art. 6 No. 3 Brussels Convention, is inadmissible where there is a lack of international jurisdiction (cf. BGH [*] NJW [*] 1993, 2753). However, this case law has been overruled by the judgment of the European Court of Justice of 13 July 1995 (NJW 1996, 42 et seq.) and has also not been upheld by the German Federal Supreme Court (cf. BGH NJW 2002, 2182, 2183). The reason for this is that the provision of § 6 No. 3 Brussels Convention only applies to genuine counterclaims and is not to be used if a [Buyer] introduces a claim against the [Seller] into the proceedings as a mere means of defense. In this case, the question of international jurisdiction is to be answered under domestic law (cf. ECJ [*] ibid; BGH NJW 2002, 2182, 2183).

However, how these considerations of the European Court of Justice are to be understood in terms of domestic law, is in dispute. According to one view, the requirement of international jurisdiction for the counterclaim is generally unnecessary in the event of set-off (cf. Roth, RIW [*] 1999, 819; Busse, MDR [*] 2001, 729). The opposite view continues to require, without restriction, international jurisdiction under international German procedural law, even within the sphere of application of the Brussels Convention (cf. Wagner, IPrax [*] 1999, 65, 71 et seq.; Jayme-Kohler, IPRax 1995, 349; Geimer, internationales Zivilprozessrecht, 3rd ed., para. 868 c; Bülow/Böckstiegel/Auer, internationaler Rechtsverkehr in Zivil- und Handelssachen 1997, Art. 6 EuGVÜ [*], para. 60). However, the German Federal Supreme Court has, up until now, expressly left the question open (cf. BGH [*] NJW [*] 2002, 2182, 2184, with further references to the current state of opinion). In the present case, there is also no need for a decision (on the question) in this regard. Even if the international jurisdiction of the German courts was required for the set-off of the [Buyer], it is to be affirmed, simply for the reason that the requirements of an analogous application of § 33 German Civil Procedure Regulations (ZPO) are met. It can be derived from the basic approach of the provision of § 33 ZPO, which applies to counterclaims, that international jurisdiction for a counterclaim asserted by way of a set-off will always be present if the counterclaim is raised in connection with the original claim or with the means of defense used against it (cf. BGH NJW 1993, 2753, 2754; BGH NJW 2002, 2182, 2184). Such a connection will especially be held to exist if there is a legal association between both claims, which is to be interpreted widely (cf. BGHZ [*] 53, 166, 168; BGH NJW 2002, 2182, 2184; Zöller/Vollkommer, ZPO [*], 23rd ed., § 33 ZPO, para. 15). For example, this is to be assumed for contracts concluded within the scope of ongoing business relationships (cf. BGH NJW 2002, 2182, 2184 with further references; Musielak/Smid, 2nd ed., § 33 ZPO, para. 2; Busse, MDR [*] 2001, 729, 730). These requirements are met here. It is undisputed that an ongoing business relationship concerning the delivery of automobile accessories existed between the parties.

            2. The assertion of a set-off defence does not contradict - contrary to the opinion of the Court of First Instance - the principle of good faith set out in § 242 BGB [*], either. According to this provision, the exercise of a right can, in certain circumstances, be seen asan abuse of the law and thereby impermissible, if the person holding the right obtained it by dishonorable means, namely through behavior in violation of the law, custom or contract (cf. Palandt/Heinrichs, BGB, 62nd ed., § 242 BGB, para. 42 et seq. with further references). In this regard, it may be conceivable in the case of a set-off if the party claiming the set-off had, through subsequently establishing its own liability, consciously and intentionally created a position of set-off for the sole reason of procuring a simple possibility of obtaining satisfaction of a claim allegedly owing to it, and thereby, avoiding the (no-doubt arduous) 'active' assertion of its claim in, for example -- as is the case here -- a foreign country. However, the presence of such a motive of the [Buyer] at the time of concluding the sales contract in dispute cannot be found. Neither in the arguments of the [Seller] nor in the other contents of the file can any reasons whatsoever be found to infer that the delivery of the [Buyer] in May 2000 was made for the sole purpose of creating a possibility of set-off for the [Buyer] in the sense mentioned above. On the contrary, it would rather appear that the conclusion of the contract in dispute was made within the scope of a long-term, ongoing business relationship.

            3. Notwithstanding this, in the end, the [Buyer] is not able to claim a set-off against the [Seller]'s claim.

                  a. In terms of substantive law, the requirements for the set-off declared by the [Buyer] are to be determined by Italian law.

According to Art. 32(1) No. 4 of the Introductory Law to the German Civil Code (EGBGB), the law applicable to the contract is, among other things, also decisive for the various types of extinguishment of an obligation, namely also for a set-off, whose effect is, therefore, to be determined under the law applicable to the claim against which the set-off is being asserted (cf. BGHZ [*] 38, 254, 256; BGH [*] NJW [*] 1994, 1413, 1416; Palandt/Heldrich, ibid, Art. 32 EGBGB [*], para. 6 with further references). Therefore, in the present case, the law applicable to the claim for the payment of the purchase price is decisive, with the consequence that, primarily, the UN Sales Law is applicable and if this does not contain provisions for every aspect of the case additionally the law applicable under the general provision of the German Private International Law should be applied (cf. OLG [*] Koblenz RIW [*] 1993, 934, 937; OLG Düsseldorf, judgment dated 24 April 1997 - 6 U 87/96, with further references).

                        aa. According to German Private International Law, Art. 27(1) EGBGB, a contract of the type in the present case is primarily subject to the law chosen by the parties, with the requirement that this choice of law must be made either expressly or, in any case, must result, with sufficient certainty, from the provisions of the contract or from the circumstances of the case. Such a choice of law, which -- as alleged by the [Buyer] -- leads to the application of German law, has not been made here.

In this respect, the [Buyer] asserts that a choice of law leading to German law was made implicitly by the parties, as [Buyer]'s standard terms of purchase (p. 122 of the court file) became part of the contract through a reference in its deliveries. These terms expressly referred to the fact that the place of performance and jurisdiction was Grevenbroich [Germany]. It is true that the express agreement on a uniform place of jurisdiction and a uniform place of performance can, in fact, be an indication of a choice of law (cf. OLG Frankfurt/Main RIW [*] 1998, 477; OLG Köln RIW 1995, 970; Palandt/Heldrich, ibid, Art. 27 EGBGB [*], para. 6 with further references). However, it is doubtful whether this approach also applies if the agreements on the place of jurisdiction and place of performance are not based upon the agreement of the parties in a classical sense, but solely are a part of a standard term provided unilaterally by one contracting party, as in the present case. In such a case, objections can be raised against the assumption that a mutual will of the parties as regards a choice of law (cf. BGH [*] NJW-RR [*] 2000, 1004) can be inferred from the contract with sufficient certainty. If -- as in the present case -- the contracting partner, for its part, has made reference to its own conditions of delivery, which contain a contradictory clause regarding the place of performance and jurisdiction ,(such) objections are justified. However, a final decision is unnecessary as in the present case, a choice of law made implicitly by means of the incorporation of standard terms can be excluded, as the [Buyer]'s standard terms of purchase in their entirety, or at least with respect to the jurisdictional clause in question, did not become part of the contract.

                              aaa. According to the general view followed by the court, the incorporation of standard business terms into a contract subject to UN Sales Law is to be determined exclusively in accordance with the provisions in Arts. 14, 18 CISG that apply in this regard (cf. BGH NJW 2002, 370, 371 with further references; Staudinger/Magnus, BGB [*], year 2000, Art. 14 CISG, para. 40; Schlechtriem/Schlechtriem, CISG, 3rd ed., Art. 14 CISG, para. 16; Soergel/Lüderitz/Fenge, BGB, 13th ed., Art. 14 CISG, para. 10; Piltz, NJW 1996, 2768, 2770). As, however, the CISG does not contain any particular rules for the incorporation of standard business terms, it must be determined according to the general rules of interpretation set out in Art. 8 CISG, whether the standard business terms were part of the contractual offer, which can arise, from the negotiations between the parties, any practices which the parties have established between themselves or from usages (Art. 8(3) CISG). Furthermore, focus is to be placed upon "the understanding that a reasonable person of the same kind as the other party" would have had of the offer (Art. 8(2) CISG).

Starting from these principles, it is necessary for the incorporation of standard business terms that the recipient of a contractual offer based upon standard business terms must have the possibility to take note of these in a reasonable way (cf. BGH [*], ibid; Staudinger/Magnus, ibid, Art. 14 CISG, para. 41; Schlechtriem/Schlechtriem, ibid; Soergel/Lüderitz/Fenge, ibid). For an effective incorporation of standard business terms, the initial requirement is that the intention of the offeror to incorporate his conditions into the contract is recognizable by the offeree Furthermore, in respect to the sale of goods, it is required that the party using standard business terms send a copy of these to its contractual partner, or makes them accessible otherwise (cf. BGH NJW 2002, 370, 371 with further references; Staudinger/Magnus, ibid; Piltz, ibid). Since, in light of the fact that considerable differences exist between the respective provisions of the various domestic legal systems and customs, the contractual partner often cannot predict the detailed content to which it is consenting; an examination of standard business terms under domestic law (Art. 4, 2nd sentence (a) CISG) is not universally guaranteed, either. Although, in many cases, the possibility of obtaining advice as to the content of the respective standard business terms at hand exists, this can, however, lead to delays in concluding the transaction, which both parties rather want to avoid. In contrast, it is easily possible for a party to attach the standard business terms to its offer, which are usually beneficial for him. In light thereof, it would contradict the principle of good faith in international trade (Art. 7(1) CISG), as well as the general duty of the parties to cooperate and provide information, to place a duty on the contractual partner to inform itself of the content of untransmitted terms, and to burden him with the risks and disadvantages of the unknown standard business terms of the other side (cf. BGH NJW 2002, 370, 371 et seq. with further references).

Even though there are commercial enterprises involved in the present case, there is no need for a different approach. Although, under non-uniform German law, untransmitted standard business terms referred to in the context of a commercial transaction can become part of the contract if the customer has the reasonable possibility of becoming aware of them, for example, by requesting them from the user (cf. BGHZ [*] 117,190, 198), this legal position is, however, based upon the assumption that, in domestic transactions, such clauses are often set out in a similar way within a particular trade branch and that they are usually known to the trade partners concerned. If not, one can still expect from a commercially active contractual partner -- under the principle of good faith -- that he would ask for a copy of such terms before concluding a contract. However, these requirements cannot be applied in the same way to international trade, with the consequence that, according to the requirements of good faith (Art. 7(1) CISG), it cannot be reasonable to place a duty on the contractual partner to inform himself of the content of the terms (cf. BGH ibid).

In the present case, according to the [Buyer]'s version of the facts, it referred to its standard terms of purchase in its orders. However, this alone does not suffice under the principles described above. It would have been necessary for the [Buyer] to additionally send its standard terms of purchase or to make them accessible in some other way. There is no proof that this actually occurred -- neither at the commencement of the business relationship nor within the scope of an arrangement concerning the continuation of the business relationship, nor on the occasion of the conclusion of the contract.

Indeed, the [Buyer] claimed that it had drawn the [Seller]'s attention to its conditions of purchase. On further inquiry of the court the [Buyer] supplemented this general and unsubstantiated statement in the oral hearings by alleging to have sent its conditions of purchase to the [Seller] at the beginning of the business relationship, but admitted at the same time that it could not make a more definite statement in this regard. Even this supplemented statement, which, in any case, has also not been proven, does not suffice, in light of the disputing claims of the [Seller], to give rise to the assumption that the [Seller] actually received the [Buyer]'s standard conditions of purchase.

                              bbb. However, even if one assumed the latter in favor of the [Buyer], this does not lead to the assumption of an agreement between the parties on the choice of law within the meaning of Art. 27(1) EGBGB [*] for the entire business relationship and, thereby, also for the individual transactions at the heart of this dispute. Namely, the fact that the [Seller], for its part, always referred in its invoices to its own conditions of delivery that were printed on each invoice, which expressly contained a contradictory place of performance and jurisdiction ("Bergamo"; cf. for example p. 11 of the court file), must be taken into account. Thus the [Buyer] must have been aware, at the latest upon receipt of the first invoice and, consequently, long before the conclusion of the individual contracts at hand here, that the [Seller], for its part, had wanted to incorporate its own -- opposing -- conditions of delivery into the contracts, as a consequence, at least the place of performance and jurisdiction proposed by the [Buyer] did not become a part of the contract, without thereby simultaneously affecting the sales contracts in dispute. The latter follows from the fact that, in the case of a partial contradiction between the standard business terms respectively referred to by the contractual parties, a failure to conclude the contract within the meaning of Art. 19(1) and (3) CISG due to a lack of a meeting of the minds can only be assumed if the parties would have regarded the lack of consensus as fundamental (cf. BGH [*] NJW [*] 2002, 672, 674). However, this was not the case here, as can be doubtlessly seen from the execution of the contracts. The partial contradiction of the standard business terms had the consequence that the [Buyer]'s clause on the place of performance and jurisdiction was not incorporated in the contract. According to the leading doctrine, which is followed by the court, if namely -- as is the case here - where standard business terms collide, within the sphere of application of the CISG, this leads to standard business terms of the contractual parties only becoming a part of the contract to the extent that they do not contradict each other, whilr the legal rules apply to the remainder (so-called knock-out theory), cf. Schlechtriem/Schlechtriem, CISG, 3rd ed., Art. 19 CISG, para. 20; Staudinger/Magnus, BGB [*], supplementary volume CISG, 1999, Art. 19 CISG, para. 23 with further references). In any case, the same result is reached if one follows the opposing view, according to which the standard terms last sent apply (so-called last-shot rule; on the current state of opinion cf., in addition to the above-mentioned authors, also BGH NJW 2002, 672, 674 et seq. with further references), as in the present case according to the [Buyer]'s own statement, it first sent its conditions of purchase to the [Seller], which the [Seller], in any case, contradicted at the decisive point in time by subsequently sending the invoices containing another clause on the place of performance and jurisdiction. At the latest, upon receipt of the [Seller]'s first invoice, the [Buyer] could consequently no longer assume that the [Seller] had consented to the [Buyer]'s contradictory jurisdiction clause and, thereby, the eventual application of German law.

                        bb. Failing a choice of law made by the parties in accordance with Art. 27(1) EGBGB [*], under Art. 28(1), 1st sentence and (2), 2nd sentence EGBGB, the law of the State in which the party who has to make the characteristic performance of the contract is located, is consequently applicable to the present contract.

In the case of a sales contract, the characteristic performance is generally made by the party that delivers the item of sale (cf. BGH [*] NJW [*] 1997, 2322; OLG [*] Düsseldorf RIW [*] 2001, 304; Palandt/Heldrich, ibid, Art. 28 EGBGB, para. 8 with further references). As, in the present case, the [Seller], as seller of the rubber sleeves, delivered them to the [Buyer], and did so from its location in Italy, Italian law is applicable.

                  b. Whether the set-off is justified is hence to be assessed according to Art. 1241 et seq. Italian Civil Code (Codice civile (Cc)). According to this provision, the admissibility of a set-off depends on whether the counterclaim can either be determined according to Art. 1243(1) Italian Civil Code as a liquidated amount ("liquidi") or, as quickly and easily within the meaning of Art. 1243(1) Italian Civil Code ("di facile e pronta liquidazione"). Neither possibility can be established here.

The first alternative is excluded in light of the dispute between the parties concerning the entitlement to make the counterclaim brought as set-off. The question as to whether there was an actual delay in delivery regarding the execution of the sales contract dated 17/23 November 1999, which could entitle the [Buyer] to claim damages under Art. 74 et seq. CISG in conjunction with Arts. 25, 34(a) CISG, depends upon clarifying the question, disputed between the parties, as regards the agreement they made with respect to the time of delivery. This dispute is not yet ready to be resolved; it requires further clarification of the facts.

The exchange of correspondence submitted by the parties to the file, in itself, does not allow a time for performance on 10 December 1999, as claimed by the [Buyer], to be determined with sufficient clarity to view this claim as proven. This can be seen in respect to the declarations of intention that led to the conclusion of the contract: although in the invoice of the [Buyer] dated 17 November 1999 (pp. 15, 16 of the court file) the 49th calendar week of 1999 is actually named as the delivery date, the [Seller]'s confirmation of order dated 23 November 1999 (p. 17 of the court file) contains 17 December 1999 as the delivery date. If, at the time of conclusion of the sales contract, there is actually no consensus reached regarding the time for performance, a delay in delivery will only be held to exist if the parties had agreed upon delivery by 10 December 1999 subsequently. Such an agreement is alleged by the [Buyer], referring to, among others, the exchange in correspondence dated 1 December 1999 (p. 18 of the court file). However, a contractual agreement of the type alleged by the [Buyer] cannot be discerned with sufficient clarity from the correspondence in question. In its fax dated 1 December 1999, the [Buyer] referred to the allegedly agreed delivery date of 10 December 1999 and, at the same time, requested that a large partial amount be delivered earlier. In response thereto, the [Seller] stated that deliveries would only be made on 10 December 1999 for the week concerned. Contrary to the view of the [Buyer], a binding consent regarding the delivery date cannot be derived from this explanation. It is just as conceivable that the [Seller]'s explanation be understood as a simple non-binding statement, to the effect that it would endeavor to have a corresponding partial amount available for delivery on 10 December 1999.

It is important therefore, whether -- as the [Buyer] continues to claim -- a corresponding arrangement as to the time of performance was made between the parties by telephone. In this regard, the [Buyer] alleges that its director of sales had a phone conversation with an employee of the [Seller] on 1 December 1999 and that, during this conversation, the delivery date of 10 December 1999 was agreed upon with binding effect. The [Buyer] seeks to prove this allegation by the testimony of its director of sales, and the witness M [...] S [...]. By way of contrast, the [Seller] disputes such an arrangement and offers, as opposing evidence for the correctness of its allegations, the testimony of its employee, the witness P [...] B [...]. These offers of evidence should be further investigated, with the consequence that the legal dispute cannot currently be resolved by final judgment.

For the reasons stated above, it automatically follows that the entitlement to counterclaim cannot be easily and quickly determined within the meaning of Art. 1243(2) Italian Civil Code. To establish the basis for the claim, evidence would have to be collected through interviewing two witnesses. One of these, namely witness B [...], lives in Italy. In order to ensure the interviewing of the witness, a request for legal assistance would have to be made to the Italian government, in order to have the witness interviewed at an Italian court by a commissioned judge within the scope of legal assistance. An additional factor is that, in the event of a positive result for the [Buyer] from this taking of evidence, further clarification of the facts would have to take place as to the amount of damage. This could not be done by simply supplementing and more closely defining the allegations, which have found little legal basis up until now, but would also require the collection of further evidence.

      III. The claim for interest, to which Italian law is also applicable under Art. 28(1) 1st sentence and (2) 2nd sentence EGBGB [*], arises from Art. 1284 et seq. Italian Civil Code. Objections to the amount have not been raised by the [Buyer].

      IV. The decision on costs is based on § 97(1) ZPO [*]. The decision on the conditional enforceability results from §§ 708 No. 10, 713 ZPO. The value of the [Buyer]'s claim is EUR 12,409.64. The requirements for allowing an appeal are not met, according to § 543(2) ZPO,. The dispute value of the proceedings is set at EUR 12,409.64.

Plum Heinen Dr. Allstadt-Schmitz

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff / Appellee of Italy is referred to as [Seller] and Respondent / Appellant of Germany is referred to as [Buyer].

Translator's note on abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGBl = Bundesgesetzblatt [German Law Gazette]; BGH = Bundesgerichtshof [Federal Supreme Court of Germany]; BGHZ = Entscheidungen des Bundesgerichtshofes in Zivilsachen[Civil Judgments of the Federal Supreme Court of Germany]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [Introductory Statute to the German Civil Code]; ECJ = European Court of Justice; EuGVÜ = Europäisches Gerichtsstands- und Vollstreckungsübereinkommen[Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters]; IPrax = Praxis des Internationalen Privat- und Verfahrensrechts [German law journal]' MDR = Monatsschrift für Deutsches Recht [German law journal]; NJW = Neue Juristische Wochenschrift [German law journal]; OLG = Oberlandesgericht [Provincial Appellate Court]; NJW-RR =NJW-Rechtsprechungs-Report [German law journal containing case law]; RIW = Recht der Internationalen Wirtschaft [German law journal]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

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

*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated February 12, 2007
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography