Germany 28 August 2003 District Court Düsseldorf (Shoes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030828g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 36 O 193/02
CASE HISTORY: 2d instance Oberlandesgericht Düsseldorf 22 July 2004
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Shoes
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
78A [Interest on delay in receiving price or any other sum in arrears]
78A [Interest on delay in receiving price or any other sum in arrears]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): Click here for German text of case; see also CISG-online.ch database <http://www.cisg-online.ch/cisg/urteile/1619.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
28 August 2003 [36 O 193/02]
Translation [*] by Jan Henning Berg [**]
Defendant [Buyer] is ordered to pay Plaintiff [Seller] EUR 2,175.31. The residual part of the action is dismissed.
[Seller] has to bear 90% of the costs of the proceedings and [Buyer] has to bear 10%.
The judgment is preliminarily enforceable by either party if assurance is provided in the amount of 120% of the enforceable sum.
[Buyer] had ordered a large amount of shoes from [Seller]. Upon invoices nos. 576/A and 662/A (worth EUR 88,849.05) dated 11 March 2002 and 19 March 2002, [Buyer] made partial payments of EUR 30,000 on 20 June 2002 and 28 June 2002 as well as of EUR 28,849.05 on 5 July 2002.
POSITION OF THE PARTIES
Position of [Seller]
[Seller] claims interest on these transactions in the amount of EUR 2,175.31. Reference is made to the statement of claim, p. 3 and the court files for the calculation.
Furthermore, [Seller] demands compensation of its attorneys' fees, incurred for the purposes of the litigation, in the amount of EUR 1,297.
Finally, [Seller] claims damages for [Buyer]'s non-acceptance of 1193 pairs of shoes. [Seller] submits that a purchase price of EUR 43,487.90 had been agreed for them. Upon [Buyer]'s failure to accept the delivery, [Seller] had made cover sales to third parties which rendered a profit of merely EUR 25,385.38.
After [Seller] initially claimed interest in relation to all parts of the primary claim, it decided to partially withdraw its claim for interest.
[Seller] now requests the Court to order [Buyer] to pay EUR 21,574.83; plus interest of 8% above the prime lending rate on the sum of EUR 1,297 since pendency of the proceedings (28 January 2003) as well as on the sum of EUR 18,102.52 since 8 August 2002.
Position of [Buyer]
[Buyer] requests the Court to dismiss [Seller]'s action.
[Buyer] argues that the parties had agreed on a period for payment of 90 days since delivery of the shoes. Moreover, it was agreed between the parties that [Buyer] would not be obliged to pay prior to the settlement by [Seller] of a warranty matter which had arisen out of transactions from the previous season. The parties also agreed on a 5% discount. [Buyer] was thus entitled to a counterclaim in the amount of EUR 4,442.45 which it could use as a set-off by way of precaution.
For further details of the parties' submissions reference is directed to the exchanged memoranda and their exhibits.
REASONING OF THE COURT
[Seller]'s action is admissible. However, the predominant part of the action is unfounded on the merits.
I. [Seller's claim for interest]
[Seller] is entitled to a claim for interest against [Buyer] in the amount of EUR 2,175.31 pursuant to Art. 78 CISG. [Seller]'s claim for payment of EUR 88,849.05 has arisen at the time of conclusion of contract according to Art. 53 CISG. Under the CISG, interest may be claimed without the requirement to issue a reminding notice, Arts. 59, 78 CISG.
[Seller] argues that payment was to be made within 30 days. However, it did not demonstrate that such agreement had been concluded. It may remain unresolved whether or not § 286(3) BGB [*] is applicable in this context; [Seller] has calculated interest only for the time after expiration of the payment period of 30 days, i.e., less than it would be entitled to in the absence of a payment period.
[Buyer]'s argument that a payment period of 90 days had been agreed is entirely unfounded. It failed to demonstrate when and at which occasion the agreement had been concluded and which representative of [Buyer] was involved. The Court does not disregard that in general very specific submissions are not required in order to trigger a certain legal outcome. However, [Seller] has expressly challenged an agreement on a payment period of 90 days. Thus, by way of exception, [Buyer] will have to state the exact time and specific circumstances of such agreement.
[Buyer]'s argument is also unfounded in regard to any rights that had arisen out of warranty. [Buyer]'s submission reads as follows:
"In the particular case it was agreed between the parties that [Buyer] would be under no obligation to pay before settlement of a warranty matter from the previous season for which [Seller] was responsible" (memorandum of 18 February 2002, p. 3). This submission is unfounded. Since [Seller] has expressly contested the existence of this agreement, [Buyer] would have had to make more specific submissions.
[Seller]'s interest claim has not expired on the basis of a set-off with a claim in favor of [Buyer] of EUR 4,442.52. Again, [Buyer] has failed to demonstrate the existence of an agreement on the alleged discount. Thus, the issue whether Italian law prohibits the set-off may remain unresolved.
Consequently, [Buyer] is obliged to pay [Seller] the interest awarded. The amount of interest is based on § 288(2) BGB [*] and well-founded.
II. [Seller's claim for attorneys' fees]
[Seller] is not entitled against [Buyer] for payment of its attorneys' fees under Art. 74 CISG. This is because [Buyer] has expressly challenged receipt of the attorney's request for payment. [Seller] may rely on a damages claim only if the attorney has in fact been engaged in business vis-à-vis [Buyer].
[Seller] has offered proof of dispatch of the attorney's letter, but that does not constitute proof of its actual receipt at the addressee. [Seller]'s action is thus unfounded in the amount of EUR 1,297.
III. [Seller's claim for lost profit]
Furthermore, [Seller] cannot claim from [Buyer] payment of lost profit of EUR 18,102.52 under Art. 74 CISG. [Seller] has submitted the order no. 1348. [Buyer] has first contested the existence of this order but subsequently contested the amount.
Even under these circumstances is [Seller]'s argument is insufficient to prove the existence of an order. It cannot be ascertained that the 1193 pairs of shoes related to the particular order in question. No exact description has been submitted to prove that the particular non-accepted shoes were in fact the shoes delivered under this order. When [Seller] referred to further deliveries of shoes in its letter of 18 July 2003, then its quantity is neither 1193 nor is it evident that there is an underlying order. Rather, it reads that the shoes were ready to be called by [Buyer] if it needed them (p. 20 GA). It furthermore indicates that any subsequent delivery of shoes should be made only upon prior order by [Buyer].
Additionally, [Seller] has submitted in its memorandum of 24 April 2003 that [Buyer] had stated on 14 March 2002 to do without the goods (p. 94 GA). [Seller] has not demonstrated that it objected to this. Consequently, the parties have mutually cancelled the contract of sale, without [Seller] being entitled to rights under Art. 88 CISG, irrespective of the requirements concerning a cover-sale under that provision. [Seller] has not argued in relation to any reservation.
The claim is further unfounded because it cannot be ascertained in its amount. No connection can be drawn between the shoes sold and those ordered. The determination cannot be made by expert opinion. No specific submissions on the facts have been made.
An indication by the Court under § 139 ZPO [*] was not necessary. The parties have mutually referred to defects within its respective submissions. No decisive legal aspects of the dispute have remained undiscussed.
IV. [Ancillary decisions]
The decision on costs is based on §§ 92(1), 269(3) ZPO. The decision on preliminary enforceability is based on § 709(1) ZPO.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Germany is referred to as [Buyer]. Amounts in the uniform European currency (Euro) are indicated as [EUR].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].
** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He 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 and 4th Willem C. Vis (East) Moot.Go to Case Table of Contents