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CISG CASE PRESENTATION

Switzerland 18 December 2003 Commercial Court Aargau (Building material and timberware case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/031218s1.html]

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

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Case identification

DATE OF DECISION: 20031218 (18 December 2003)

JURISDICTION: Switzerland

TRIBUNAL: Handelsgericht [Commercial Court] Aargau

JUDGE(S): Dr. A. Bühler (Präsident); Dr. W. Boner (Ersatzrichter); A. Kim, O. Münch, H. Nauer (Handelsrichter); D. Schai (Gerichtsschreiber)

CASE NUMBER/DOCKET NUMBER: OR.2003.0037

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Building material and timberware


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 6 ; 78 [Also cited: Article 35 ]

Classification of issues using UNCITRAL classification code numbers:

6A [Exclusion or modification of Convention by contract: limitation of liability clause upheld];

78A [Interest on delay in receiving price or any other sum in arrears]

Descriptors: Autonomy of parties ; Interest

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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/959.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

Commercial Court (Handelsgericht) Aargau

18 December 2003 [OR.2003.00037]

Translation [*] by Thomas Arntz [**]

Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor
[***]

[...]

FACTS

A. 1. The Plaintiff [Seller] runs a small trade and forwarding agency in Germany.

The Defendant [Buyer], a company seated in Lenzburg, Switzerland, trades in building material and timberware for the gardening and recreation industry.

      2. The parties had an ongoing business relationship for eight years. [Seller] bought building material and timberware in Germany and transported the goods to Switzerland by truck. The claims arising out of the delivery and transport of the goods were continuously set off against cash payments made by [Buyer]. The amount of the respective payments did not correspond to the amount of the invoices. [Buyer] established a so-called "chart of accounts" containing the claims of [Seller], the payments of [Buyer] and the respective balance. In December 2002, a disagreement arose concerning the amount of the balance owed by [Buyer]. On 19 January 2003, [Seller] reminded [Buyer] of a balance claim in the amount of EUR (Euro) 10,179.17. By letter of 28 March 2003, [Buyer] informed [Seller] that the balance claim only amounted to EUR 4,910.00 - further corrections reserved. [Seller] accepted deductions in the amount of EUR 431.45. Thus, claims in the amount of EUR 9,747.72 remain debatable.

B. 1. In its complaint dated 9 May 2003, [Seller] requested that:

1. [Buyer] pay [Seller] the amount of EUR 9,747.72 plus default interest of 5% since 20 January 2003.
2. [Buyer] bear costs and pay compensation.

      2. In its answer dated 21 June 2003 / 10 September 2003, [Buyer] requested the court to dismiss the suit and to order [Seller] to provide security for the notice of defects. [Buyer] justifies its request by stating that it had paid all the accounts. If this was not the case, the notice of non-conformity of one of its customers should be taken into account.

      3. In its counterplea dated 29 August 2003, [Seller] adhered to its claim and added that some of the payments made by [Buyer] had been reimbursements of custom charges and value added tax duties, which [Seller] had paid when it entered Switzerland and which had been reimbursed later by [Buyer]. However, these payments had not been part of the "chart of accounts". They had appeared for the first time in the course of [Buyer]'s corrections.

      4. In its rejoinder of 11 November 2003, [Buyer] requested the court to dismiss the suit and to order [Seller] to provide security for the notice of non-conformity. [Buyer] justifies its request by asserting that [Seller] acted as an "intermediary" and therefore had to accept responsibility for the notice of defects amounting to [Sf] (Swiss francs) 60,000. Furthermore, it asserts that a counterclaim existed in the amount of [Sf] 90,000 which by far exceeds the outstanding amount.

REASONING

      1. [Buyer] explicitly accepted the venue and subject jurisdiction of the Commercial Court.

      2.   a) Since the parties have their domiciles in two different countries, the issue at hand is international. Thus, the applicable law has to be determined in accordance with the Swiss Code on the Conflict of Laws (IPRG) [*], unless a convention in the sense of Art. 1(2) IPRG is applicable.

            b) The CISG applies to the sales contracts between [Buyer] and [Seller] concerning the building and garden materials. Switzerland as well as Germany are Contracting States of the CISG.

            c) The contracts of carriage, however, are not sales contracts in the sense of the CISG. The Convention on the Contract for the International Carriage of Goods by Road (CMR) [*] is applicable to carriage of goods between two different States. Since Switzerland and Germany have ratified the CMR, this convention governs the [Seller]'s claims arising out of the contracts of carriage.

      3.   a) The claims arising out of the contracts of sale and carriage between the parties have been recorded on a so-called "chart of accounts". [Seller] refers to its chart of accounts (Plaintiff's exhibit no. 3, hereinafter referred to as KpKl), while [Buyer] has presented another chart (Defendant's exhibit no. 2, hereinafter referred to as KpBe). It is undisputed that both charts of accounts have been drafted by [Buyer] and include the respective payments. The chart of accounts provided by [Seller] was faxed to [Seller] by [Buyer] on 20 January 2003. Thus, [Buyer] is to be held responsible for the content of the chart (KpKl) it has established and which was approved by [Seller], unless [Buyer] proves that the [Seller]'s claims have no legal basis or that it had effected payments that are not listed on the chart.

            b) The differences between the two charts of accounts concern -- in chronological order -- the following points:

                  - 2 January 2002: The "KpKl" displays a "carryover" of EUR 1,408.20 in favor of [Seller], while the "KpBe" only displays a "carryover" of EUR 657. [Buyer] did not provide a reason for this discrepancy. Therefore, the relevant figure is EUR 1,408.20.

                  - 16 May 2002: The cash payment in the amount of EUR 1,342.00 is not included in the "KpKl". However, [Buyer] furnished a receipt for this payment, signed by [Seller] on 16 May 2002. Thus, this amount has to be deducted from the outstanding amount owed by [Buyer].

                  - 29 August 2002: The amount of EUR 1,600.55 listed on the "KpKl" is to be reduced to EUR 1,600.00 because of a spelling mistake.

                  - 14 October 2002: [Seller] acknowledges the payment of EUR 345 for diesel fuel listed on the "KpBe". This amount has to be deducted from the outstanding sum.

                  - 6 November 2002: [Buyer] did not prove the additional payment of EUR 472 listed on the "KpBe". Therefore, this amount cannot be deducted from the outstanding sum.

                  - 28 November 2002, 3 December 2002, 14 December 2002: The additional payments of EUR 709, EUR 675 and EUR 425 listed on the "KpBe" concern the reimbursement of custom charges paid by [Seller]. [Seller] convincingly stated that the custom charges were dealt with "outside" the chart of accounts. Accordingly, [Seller] never invoiced custom charges. [Buyer] may not subsequently require reimbursement for custom charges as compensation for the delivery and transport costs. Thus, the amounts of EUR 709, EUR 675 and EUR 425 cannot be deducted.

            c) By referring to a "correction list", [Buyer] claims further deductions in the amount of EUR 1,881. [Buyer] inserted this position in its chart of accounts on 28 March 2003. In this context, [Buyer] asserts that: (a) the amount charged by [Seller] was too high, (b) [Seller] did not give a discount, (c) [Buyer] made pallets, which were no longer required, available for pickup, (d) several "offsetting-mistakes" occurred.

                  aa) There is no evident basis for the alleged price differences. [Buyer] asserts that [Seller] wrongly added 8% to the purchase price on the invoices. But the claimed deductions do not amount to 8% of the purchase price. Thus, [Buyer]'s assertions as to the price differences are not justified. Hence there cannot be any deduction in this respect.

                  bb) [Buyer] did not substantiate why there should be a discount of 3%. In fact, [Seller] convincingly declared that the discount was already included in the amounts on the invoices. Therefore, a deduction is also not possible in this respect.

                  cc) Further, [Buyer] asserted that it had made pallets worth EUR 677.80 available for pickup and that it had informed [Seller] about this in writing. However, [Buyer] did not prove that [Seller] received such a document. Thus, the assertion does not justify a deduction.

                  dd) Finally, [Buyer] asserts to have found "offsetting mistakes" on several invoices. Concerning invoice no. 58/2002, [Seller] acknowledges to have wrongly charged the Swiss LSVA (the Swiss Distance Related Heavy Vehicle Fee) for the whole transport distance (including the distance covered in Germany). [Seller] therefore accepts a deduction of EUR 86.45. Apart from this, [Buyer] neither substantiated nor proved which other "offsetting mistakes" occurred. Thus, only EUR 86.45 can be deducted.

                  ee) As a conclusion to this, the deduction claimed by [Buyer] on 28 March 2003 in the amount of EUR 1,881 is only justified in the amount of EUR 86.45, being the sum acknowledged by [Seller].

            d) In conclusion the examination of the [Seller]'s receivables and the payments made by [Buyer] lead to the result that [Buyer] owes [Seller] the following amount:

-   Balance in favor of [Seller] as of 20 December 2002: EUR 10,179.17
-   Cash payment of 14 May 2002 ./. EUR   1,342.00
-   Correction of cash payment of 29 August 2002 ./. EUR          0.55
-   Receipt of diesel fuel of 14 October 2003 (acknowledged) ./.   EUR         345.00
-   Correction of invoice 58/2002 (acknowledged)   ./. EUR        86.45
 
-   Outstanding amount EUR   8,405.17

      4. By letter of 14 January 2003, a customer of [Buyer] filed a notice of non- conformity, criticizing the bumpiness and imprecision of garden paving stones. [Buyer] holds [Seller] liable for these defects.

            a) Pursuant to Arts. 35 et seq. CISG, the seller is liable if the goods do not conform with the contract. According to Art. 6 CISG, the parties may derogate from the provisions of the CISG. In the present case concerning the rights of [Buyer] in case of defectiveness of the goods delivered by [Seller], the parties have agreed on the following provision:

"1. The forwarding agency Juergen Rodig acts for Galabau Lenzburg as intermediary in the distribution of building materials from Germany to Switzerland.
"2. [...].
"3. The forwarding agency Rodig cannot perform an inspection of the goods. Possible customer complaints will be handed to [Buyer] by the forwarding agency.
"4. If the producer does not accept the complaint and reimburse the claim, the Galabau company is not entitled to deduct and retain the value of the goods from the transportation costs."

By virtue of this provision, [Seller] referred [Buyer] to the German producer for all defect-related claims and contracted out of any liability for defects.

            b) [Buyer] asserts that the agreement of 5 September 2002 contains a passage pursuant to which the forwarding agent has to be informed in writing about any damages within six days. Apparently, [Buyer] refers to the ADSp [*] which were indicated on the receipts and which contain such a passage. These standard terms, however, were not part of the sales contracts concluded between the parties. Therefore, they cannot be the legal basis for contractual deficiency claims.

            c) Thus, [Buyer] is not entitled to deficiency claims against [Seller]. Therefore, the [Buyer]'s counterclaim for [Sf] 60,000.00, as well as for the provision of security on the [Seller]'s part is not justified.

      5. [Seller] claims default interest of 5% since 20 January 2003. On 19 January 2003, [Seller] sent a reminder to [Buyer] claiming an outstanding amount of EUR 10,179.17.

            a) Since the CISG and the CMR do not provide for the amount of interest and the parties did not reach an agreement concerning this point, the national law applicable pursuant to the conflict of law rules governs this question. Pursuant to Art. 117(3)(c) IPRG [*], German law is applicable to the carriage claims. The same applies to the claims arising out of the sales contracts. Pursuant to Art. 118(1) IPRG, the "The Hague Convention of 15 June 1955 on the Law Applicable to International Sales of Goods" applies to the purchase of movable goods. Art. 3 of this Convention states that, if the parties have not agreed on the applicable law, the law of the State in which the seller had its habitual residence at the time he received the order is applicable. Since [Seller] has its residence in Germany, the amount of interest for the claims arising out of the sales contracts has to be determined in accordance with German law.

            b) Because [Seller] runs a small trade, the BGB [*] is applicable. Pursuant to 288(2) BGB, the default interest rate is eight percentage points above the base lending rate if, as in this case, no consumer is involved in the transaction. By demanding 5 % [Seller] claims a significantly lower default interest.

      6. [Seller] claimed only slightly too much, while the [Buyer]'s demand for provision of security in the amount of [Sf] 60,000.00 is rejected to the full extent.

[JUDGMENT]

Accordingly, the court orders:

      1. [Buyer] has to pay EUR 8,405.17 plus interest of 5% since 20 January 2003.

      2. The [Buyer]'s claim for provision of security on the [Seller]'s part is dismissed.

      3. [Buyer] has to bear the costs of the court proceedings, amounting to [Sf] 4,737 (consisting of the court costs amounting to [Sf] 4,500 and of expenses in the amount of [Sf] 237).

      4. [Buyer] is obliged to reimburse [Seller] for its legal fees in the amount of [Sf] 4,658.20 (VAT incl.).

      5. This decision is to be addressed to the legal representatives of the parties in writing.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Germany is referred to as [Seller] and the Defendant of Switzerland is referred to as [Buyer]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sf].

Translator's note on other abbreviations: ADSp = Allgemeine Deutsche Spediteurbedingungen [General Terms and Conditions of the German Forwarding Trade]; BGB = Bürgerliche Gesetzbuch [German Civil Code]; CMR = Ûbereinkommen über den Beförderungsvertrag im internationalen Strassengüterverkehr vom 19 Mai 1956 [Convention on Contracts for the International Carriage of Goods by Road of 19 May 1956]; IPRG = Bundesgesetz über das internationale Privatrecht [Swiss Code on the Conflict of Laws].

** Thomas Arntz is a law student at the University of Cologne. During 2003-2004, he spent a year in Clermont-Ferand as an Erasmus student. In 2004-2005, he participated in the Twelfth Willem C. Vis Moot.

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

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Pace Law School Institute of International Commercial Law - Last updated September 6, 2007
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