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CISG CASE PRESENTATION

Germany 15 September 2003 Appellate Court Rostock (Plastic ketchup bottles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030915g1.html]

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

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Case identification

DATE OF DECISION: 20030915 (15 September 2003)

JURISDICTION: Germany

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

JUDGE(S): Dr. Jedamzik, Gombac, Feger

CASE NUMBER/DOCKET NUMBER: 3 U 19/03

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

CASE HISTORY: 1st instance Landgericht Stralsund (3 O 49/01) 30 April 2002

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Denmark (defendant)

GOODS INVOLVED: Plastic ketchup bottles


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 33 ; 71(1)(b) [Also cited: Articles 45(1) ; 53 ; 62 ; 74 ; 77 ; 78 ] [Also relevant: Article 29 ]

Classification of issues using UNCITRAL classification code numbers:

33C [Time for delivery: where not fixed or determinable from contract, reasonable time after contract's conclusion];

71A12 [Grounds for suspension of performance: conduct in performing or preparing to perform contract]

Descriptors: Delivery ; Suspension of performance

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Editorial remarks

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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/920.pdf>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Rostock

15 September 2003 [3 U 19/03]

Translation [*] by Stella Heyken [**]

Edited by Todd Fox [***]

In the dispute between:

R. F. GmbH [Ltd. under German law] (hereinafter referred to as [Buyer]), Defendant and Claimant in the appeal, authorized legal counsel: Attorney L.

vs.

Gesellschaft mit beschränkter Haftung dänischen Rechts in Fa. U. A. [Ltd. under Danish law] (hereinafter referred to as [Seller]), Plaintiff and Respondent in the appeal, authorized legal counsel: Attorney S.

The Third Civil Chamber of the Appellate Court of Rostock with Mr. Dr. Jedamzik, Judge of the District Court, Ms. Gombac, Judge of the Regional Court and Ms. Feger, Judge of the Regional Court has, following the oral proceedings of 25 August 2003, handed down the following decision.

DECISION

1. The appeal of the [Buyer] against the decision of the Regional Court of Stralsund - Case No. 3 O 49/01 - is dismissed.

2. The [Buyer] bears the costs of the appeal.

3. The decision is preliminarily enforceable. The [Buyer] may avert enforcement by providing a security bond in the amount of 120% of the sum enforceable under the judgment if the [Seller] does not post security in the same amount before the time of the enforcement.

4. The amount in dispute on the appeal: 161,800.83

I. REASONS FOR THE DECISION

The [Seller] claims payment for the purchase price in the amount of 99,689.46 less 9,826.28 for plastic bottles produced and delivered. The [Buyer] alleges damages in the amount of 71,937.65 and seeks to compensate this loss by way of a set-off.

The facts determined in the judgment of 30 April 2002 by the Court of First Instance, the Regional Court of Stralsund, are supplemented as follows:

    -   On 15 February 2001, A. E. Ltd. (hereinafter "A.S.") ordered from B. P.- & V. Ltd. 1,873 pallets with bottles of "Gewürzketchup" (spiced ketchup) to be delivered during the period 21 May 2001 through 25 May 2001.
 
    -   By fax of 22 May 2001, A.S. informed R.G. P.- and V. Ltd. (hereinafter "R.G.") how 1,281 pallets already delivered should be divided for shipment to its branches.
 
    -   In a writing dated 6 June 2001, A.S. charged R.G. with lost profits amounting to 90,843.65 DM [German Marks], since R.G. failed to deliver a quantity of 304,640 bottles. R.G. forwarded this claim to the [Buyer] via a writing dated 11 June 2001.

In its judgment of 30 April 2002, the Regional Court of Stralsund had ordered the [Buyer] to pay to the [Seller] 99,689.46 plus interest, less an amount of 9,826.28. The Regional Court gave the following reasons for its decision:

    -   The [Seller] had a claim due for the purchase price pursuant to the contractual agreement and Arts. 53, 62 CISG. The [Buyer] never declared avoidance of the contract based on delayed delivery. Further, the [Buyer] did not substantiate that it suffered damages as a result of the delayed delivery according to Arts. 45(1), 74 - 77 CISG, nor did the [Buyer] show by what contractual relationship the damages claimed by A.S. were also damages the [Buyer] had suffered.
 
    -   The [Buyer] thus did not have a claim for compensation of damages incurred since 23 May 2001 by [Seller]'s failure to deliver. The [Seller] was allowed to stop delivery according to Art. 71(1)(b) CISG, since the [Buyer] did not comply with its duty to pay the purchase price.
 
    -   The [Seller] did not fundamentally breach the contract since the original delivery period became obsolete due to change in the bottles caused by the [Buyer], and the parties had not agreed upon a new date for delivery.

The [Buyer] appealed against the judgment of the Regional Court Stralsund by written pleading submitted to the Appellate Court Rostock on 6 June 2002. [Buyer] substantiated its appeal within a granted extension of time until 8 August 2002.

    -   The [Buyer] alleges that its claim for damages arises solely from the late delivery of the [Seller].
 
    -   [Buyer] alleges that, due to the late delivery, in a fax from 22 May 2001 A.S. reduced the number of the pallets originally agreed to on 15 February 2001 from 1,873 to 1,281 and divided them in another way.
 
    -   Whereas the [Buyer], alleged in the first instance proceedings that the order by A.S. of 15 February 2001 was given to [Buyer]'s distribution company B. P.- & V. Ltd., [Buyer] now alleges in the appeal that A.S. merely accidentally addressed the order to B. P.- & V. Ltd. and that the business was indeed conducted by R.G.
 
    -   Finally, the [Buyer] argues that the parties to the dispute retained the original delivery period in the 19th and 20th calendar weeks even after the change of the bottles' height. It was the [Seller]'s duty to determine if that delivery period was still possible in light of the changed order specifications and if not to deny the changed order. [Buyer] alleges that the [Seller] allowed the [Buyer] to believe that delivery of the contracted amount was possible within the delivery period.

The [Buyer] asks the Court to overturn the decision of the Regional Court of Stralsund of 30 April 2002 and reject the [Seller]'s claim.

The [Seller] asks the Court to reject the [Buyer]'s appeal. [Seller] defends the decision of the Regional Court and moreover alleges that A.S. never complained about late delivery, but only of the failure to deliver the remaining ketchup bottles. [Seller] alleges that even if R.G. was a contractual partner with A.S., which is disputed, it is not clear what justification the [Buyer] has to assert its own claims.

Finally, as soon as the [Buyer] voiced its desired changes, the [Seller] immediately called attention to the temporal consequences they would entail and stated that the original delivery period would not be able to be maintained. In this situation, it was up to the [Buyer] to cancel the order, which it did not do.

II. REASONS FOR THE DECISION

The [Buyer]'s appeal is admissible but unfounded.

According to Arts. 53, 62 CISG, the [Seller] has a right to claim payment of 99,689.46 plus interest less 9,826.28 paid on 6 July 2001. The [Seller]'s claim is not extinguished because of the [Buyer]'s set-off counterclaim.

The Appellate Court upholds the correct ruling of the Court of First Instance. The [Buyer]'s assertions in the appeal are rejected.

1. The [Buyer] has not substantiated that the [Seller]'s late delivery caused damages according to Arts. 74, 45(1)(b) CISG.

The [Buyer] claimed damages in the amount of 90,843.65 DM (i.e., 46,447.62) as a set-off counterclaim. This was the sum the end-buyer A.S. invoiced R.G. as lost profits. This claim is not based on the deliveries by the [Seller] performed until 22 May 2001, but rather on the fact that no more deliveries were made after 23 May 2001. By writing dated 6 June 2001, A.S. expressly declared that it would claim compensation for the reduction in the amount of the bottles by 304,640.

Insofar as the [Buyer] alleges in the appeal for the first time that in a fax dated 22 May 2001 A.S. reduced the expected amount of spiced ketchup and divided it otherwise solely because of the late delivery, this introduction of new facts is inadmissible according to 531(2) ZPO [*].

In its decision of 29 January 2002, the Regional Court of Stralsund already found that the [Buyer] did not show that the damages claimed by A.S. were caused by the delay in delivery by the [Seller]. Moreover, the [Buyer] has not pleaded that the late introduction of facts is not due to its own negligence.

Furthermore, the content of the fax of 22 May 2001 in connection with the letter of 6 June 2001 does not justify the conclusion that A.S. avoided the contract and rejected further deliveries from 22 May 2001 because of the late delivery. A.S. only stated that a division of the bottles delivered so far should occur. The apparent reason for this was to distribute the bottles already delivered in relation to the individual branches. A.S. did not thereby preclude further deliveries of the remaining bottles.

2. The [Buyer] has furthermore not substantiated that it is entitled to claim the damages suffered by A.S. from the [Seller].

In the first instance, the [Buyer] declared in its written pleading of 6 December 2001 that A.S. forwarded the order to [Buyer]'s distribution company B. P.- & V. Ltd. However, the [Buyer] now alleges in the appeal that A.S. accidentally addressed the order to B. P.- & V. Ltd. and that the business was indeed conducted by R.G. This introduction of new facts cannot be considered as it is not admissible pursuant to 531(1) ZPO. [*] The Regional Court of Stralsund already stated in its decision of 29 January 2002 that the [Buyer] did not show that it suffered a loss of its own, since A.S. invoiced its damages to a company not identical to the [Buyer].

The [Buyer] did not claim that its introduction of the new facts is not due to its own negligence.

Even if A.S. concluded a contract with R.G., the [Buyer] did not sufficiently demonstrate under which contractual obligation it had compensated the loss R.G. had suffered. Since R.G. and the [Buyer] are two independent legal persons, it is not sufficient to state that the [Buyer] is a limited partner of R.G. and holds 50 % of the company's shares.

3. The [Buyer] is not entitled to damages due to the [Seller]'s stoppage of delivery on 23 May 2001. On the one hand, the [Seller] was allowed to suspend performance according to Art. 71(1)(b) CISG, since it could presume from the [Buyer]'s behavior that [Buyer] was also unwilling to meet its payment obligations in the future. On this point the Court refers to the correct decision of the Regional Court of Stralsund of 30 April 2002. On the other hand, the [Buyer] was not entitled to suspend performance as provided for in Art. 71(1) CISG, since the [Seller] had complied with Art. 33 CISG. Pursuant to this Article, if a time period for delivery is fixed by the contract, the seller must deliver the goods at that time; in all other cases the seller must deliver the goods within a reasonable time after the conclusion of the contract.

     a) Contrary to the [Buyer]'s assertion, the parties did not agree to a fixed date for delivery. The original period for the delivery was in the 19th and 20th calendar weeks. After that period had been fixed, on 16 March 2001 the [Buyer] withdrew its authorization for production and ordered bottles changed in design. This is to be understood as a new offer by the [Buyer], i.e., an offer to modify the existing contract. In principle, the [Seller] accepted the modification in its fax of 23 March 2001, but not at the original terms of the contract, especially not as to the period for performance. Rather, the [Seller] made clear that due to the changed design of the bottles and the corresponding reorganization and testing necessary, the delivery dates would have to be discussed over time and that problems could arise. Thus, through its continual and actual reports on the delivery situation, the [Seller] did not lead the [Buyer] to believe that the deliveries could still occur in the 19th and 20th calendar weeks even after the change in the design of the bottles.

[Seller] simultaneously indicated that its stated time schedule could only be kept under optimum conditions, namely if the tools proved serviceable after the tests and production could be started immediately. By fax of 12 April 2001, the [Seller] informed the [Buyer] about the actual situation concerning delivery, in particular about the fact that it had to delay the start of production due to the necessary testing required by the changed bottle design. On 19 April 2001, the [Seller] notified the [Buyer] by e-mail that due to the required changes it projected the end of production only by the 22nd and 23rd calendar weeks.

     b) The [Seller] delivered the bottles within a reasonable period of time after conclusion of the contract, in accordance with Art. 33 CISG.

    -   What is reasonable must be determined from the circumstances of the individual case. When determining a reasonable delivery period, circumstances in favor of any party may only be taken into consideration if the other party foresaw or could have foreseen them at the time of contract conclusion (cf. von Caemmerer/Schlechtriem/Hofer - Commentary on the CISG, 2nd ed., Art. 33 para. 16).
 
    -   In light of all these circumstances, an extension of the original time for completion by a period of approximately three weeks, or to calendar week 23, is reasonable, as this was due to the [Buyer's] subsequent order for a changed bottle design. That this required an extra effort for the [Seller] was evident for the [Buyer], in particular since the [Buyer] was regularly informed by the [Seller] about the delivery situation.

4. The claim for interest follows from Art. 78 CISG, Arts. 28(1)(1), (2) EGBGB [*], 5 of the Danish Law on Interest for Delayed Payment of 1 September 1986.

5. The [Buyer] bears the costs of the appeal according to 97(1) ZPO [*]. The decision on the preliminary enforceability derives from 708 (No. 10), 711 ZPO.

Revision is not admissible pursuant to 543(2) (1) ZPO, since the case does not require a decision by the Federal Supreme Court as it is neither of fundamental importance nor necessary for development of law or to guarantee a uniform jurisprudence.

The amount in dispute is 161,800.83 according to 19(3) GKG [*]. The sum consists of the claim amounting to 89,863.18 and the set-off counterclaim amounting to 71,937.65.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff/Claimant of Denmark is referred to as [Seller]; Respondent/Defendant of Germany is referred to as [Buyer]. Amounts in former German currency (Deutsche Mark) are indicated as [DM]; amounts in the European currency (Euro) are indicated as [].

Translator's note on other abbreviations: BGH = Bundesgerichtshof [German Supreme Court]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; GKG = Gerichtskostengesetz [German Law on the Costs of Judicial Procedures]; ZPO = Zivilprozessordnung [German Code of Civil Procedure]

** Stella Heyken is a law student of the University of Osnabrück, Germany.

*** Todd Fox received his J.D. from Rutgers University and his LL.M. summa cum laude from the University of Freiburg, Germany. A member of the Bar of the State of Pennsylvania, his is an Associate of the Institute of International Commercial Law.

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