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CISG CASE PRESENTATION

Switzerland 12 March 2004 County Court Willisau (Wood case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040312s1.html]

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

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Case identification

DATE OF DECISION: 20040312 (12 March 2004)

JURISDICTION: Switzerland

TRIBUNAL: Amtsgericht [County Court] Willisau

JUDGE(S): Troxler (Präsidentin); Häfliger (Amstrichterin), Koller (Amtsrichter); Schwegler (Gerichtsschreiber)

CASE NUMBER/DOCKET NUMBER: 10 01 5

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany

BUYER'S COUNTRY: Switzerland

GOODS INVOLVED: Wood


UNCITRAL case abstract

SWITZERLAND: County Court of Willisau (Wood case) 12 March 2004 [10 01 5]

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/88],
CLOUT abstract no. 893

Reproduced with permission of UNCITRAL

Abstract prepared by Thomas M. Mayer

The judgement in question contained a preamble on the obligation to pay interest on arrears in accordance with article 78 CISG and on exemption from liability within the meaning of article 79 CISG. If a party failed to pay the sale price or any other sum overdue, the other party was entitled to interest on it. The obligation to pay interest on arrears was not subject to any conditions other than expiry of the payment due date and delay. The debtor was not able to plead an exemption within the meaning of article 79 CISG.

In the present case, the Swiss buyer of a consignment of wood delayed payment of the sale price because of uncertainty as to who was entitled to receive the sale price. The plaintiff and a third person stated that they were the assignees of the sum owed to the seller domiciled in Germany. The court did not view that as an impediment to the discharge of the buyer's obligation to pay interest on arrears as from the payment due date. However, the defendant was exempt from payment of damages on the basis of article 79(1) CISG.

The court acknowledged that the lawyer's costs borne by the plaintiff in order to recover the debt constituted a loss within the meaning of article 74 CISG. Account was taken of the requirement of foreseeability as set out in the second sentence of that article.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 79 [Also cited: Articles 4 ; 58 ; 59 ; 61 ; 74 ; 78 ]

Classification of issues using UNCITRAL classification code numbers:

79B [Impediments excusing party from damages]

Descriptors: Exemption or impediments

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

German: [1/2005] Swiss Review of International and European Law (SRIEL) 124 et seq.

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/961.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

Canton Luzern, County Court (Amtsgericht) Willisau

12 March 2004 [10 01 5]

Translation [*] by Kirstin Stadtländer [**]

Edited by Jan Henning Berg [***]

[...]

FACTS

A. Plaintiff [Seller's Assignee] operates in the factoring-business. It acquired claims of the company I (...) GmbH [Seller] against Defendant [Buyer]. Company A (...) P (...) had a claim of Deutsche Mark [DM] 56,110.80 against the [Seller]. Company A (...) P (...) had a hold-payment order in the amount of DM 61,207.31 served upon [Buyer] and attached [Seller]'s claim against the [Buyer]. Thereafter, there was a dispute between Company A (...) P (...) and [Buyer] for a long time, as to who was entitled to that claim. [Buyer] first retained the payment due to a legally unclear situation between A (...) P (...) and [Seller's Assignee].

[Seller's Assignee] demands from [Buyer] the outstanding amount of the claim assigned to it to the [Seller], interest for late payment and the costs for legal counsel that arose.

B. By claim of 21 February 2001:

"[Seller's Assignee] seeks to have [Buyer] ordered to pay [Seller's Assignee] the following amounts:

-   DM 1,086.80 plus interest at the rate of 5% since 18 June 1998
-   DM 6,771.85
-   DM 2,284.97 plus interest at the rate of 5% since 6 December 1999
-   Swiss francs [CHF] 5,617.60 plus interest at the rate of 5% since 6 December 1999

"[Seller's Assignee] also seeks to have [Buyer] ordered to pay the costs and compensation."

As to the legal basis of its claim, [Seller's Assignee] elaborates that it acquired claims from [Seller] against [Buyer] in the amount of DM 130,020.00. On the invoices of the [Seller] there was a note that the payment was to be made to the DG D (...) GmbH [Seller's Assignee]. The complete amount that was assigned to [Seller's Assignee] was due on 4 June 1998. [Seller] alleges that the freezing of payment by Company A (...) P (...) to [Buyer] that was ordered by a German court was invalid at the outset. The attachment of the demand would not have been successful in any case, because the [Seller] had previously assigned the claim against [Buyer] to [Seller's Assignee] in the way of factoring. [Buyer] took advantage of the situation by not paying the amount. Especially, the amount of DM 68,812.69 that was not secured by the (invalid) German pledge, could have been paid without a problem. As [Buyer] retained payment, [Seller's Assignee] had to instruct German legal counsel G (...) & S (...) and legal counsel I (...). Only in May 1999 was a first partial payment of DM 63,070.04 made and at the beginning of July 1999 a second partial payment of DM 65.863,16 was made.

C. In its statement of defense of 16 May 2001, [Buyer] demands rejection of the claim. [Buyer] explains that it was delivered wood in the amount of DM 128,906.20 by the [Seller]. This amount results from a calculation of [Buyer] which it made according to the conditions of delivery on the basis of the scale certificates. The invoices that were produced by the [Seller] and given to [Seller's Assignee] were irrelevant and furthermore were not sent to [Buyer]. An outstanding claim does not exist. On 18 June 1998, the legal representative of Company A (...) P (...) served upon [Buyer] an order freezing and attaching payment. By decision of 24 June 1998, the County Court of Rothenburg issued an order of attachment against the [Seller]. [Buyer] as a third party debtor was prohibited from paying to the [Seller]. [Buyer] had to obey the official prohibition of payment. [Seller's Assignee] did not take action to prove to [Buyer] that the [Seller] had assigned the claim before the order of the enforceable default summons. [Buyer] cannot be blamed for retaining the payment due to the unclear legal situation between A (...) P (...) and [Seller's Assignee] in order to avoid the risk of a double payment. Only at the end of May 1999 was the factoring-contract between [Seller] and [Seller's Assignee] sent to [Buyer], however, not by [Seller's Assignee] but by the legal representative of A (...) P (...). The claim was then immediately paid by two partial payments. The due date of the claim was set aside by the freezing of payment and the order of attachment. The retention of legal counsel by [Seller's Assignee] was not necessary. [Buyer] had from the beginning clearly pointed out that payment was made as soon as the legal situation was clear. The interest for late payment as well as the costs for legal representation are therefore contested to the ground as well as to the amount.

D. On 3 October 2001, a first hearing took place. [Seller's Assignee] was requested to contribute to the determination of the applicable law (record p. 2).

E. By submission of 28 November 2001, [Seller's Assignee] elaborated on the applicability of the CISG as well as in the applicability and the content of German law. In its statement of 9 January 2002, [Buyer] contests the submissions of [Seller's Assignee].

F. By submission of 5 September 2003, [Seller's Assignee] declared that it changed its company from DG D (...) GmbH into VR D (...) GmbH. It further asks the following changed motions, to accommodate the substitution of the Euro for the DM:

"[Seller's Assignee] seeks to have [Buyer] ordered to pay [Seller's Assignee] the following amounts:

-   EUR 555.67 plus interest at the rate of 5 % since 18 June 1998
-   EUR 3,462.39
-   EUR 1,168.28 plus interest at the rate of 5 % since 6 December 1999
-   CHF 5,617.60 plus interest at the rate of 5 % since 6 December 1999

"[Seller's Assignee] also seeks to have [Buyer] ordered to pay the costs and compensation."

G. The taking of evidence was closed on 3 February 2004 after the parties had waived the trial process. Both parties waived a written statement to the result of the taking of evidence.

CONSIDERATIONS

1. In the taking of evidence the submitted documents were taken to the file. The examination of witnesses can be refrained from. The facts are sufficiently determined.

2. Concerning the outstanding claim for deliveries of wood of the [Seller]

[Seller's Assignee's position]

      a) [Seller's Assignee] demands a claim in the amount of EUR 555,67 (originally DM 1,086.80) plus interest at 5% since 18 June 1998. [Seller's Assignee] asserts that the [Seller] delivered wood in the amount of DM 130,020.00 to [Buyer] but [Buyer] has only paid DM 128,9333.20. The difference of DM 1,086.80 is still owed. A notice of defects has never been provided to the [Seller] or to [Seller's Assignee].

[Buyer's position]

[Buyer] contests the claim. [Buyer] alleges that the conditions of delivery between [Buyer] and the deliverer provided that - as is usual in the business of wood trade - it was not the seller who calculated the amount and invoiced it to [Buyer], but that [Buyer] at the end of each month calculated the delivered wood and then paid the amount to the deliverer. The deliveries of wood were weighed on the premises of [Buyer]. On the basis of the scale certificates, the invoice amount was calculated by [Buyer]. The invoice of the month of March 1998 for the [Seller] was of the total amount of DM 128,906.20. The invoices that the [Seller] made and gave to [Seller's Assignee] are irrelevant.

[Seller's Assignee] contests that the scale certificates of [Buyer] were supposed to be the basis for the determination of the price.

[Opinion of the Court]

      b) The contract between the [Seller] and [Buyer] constitutes a contract of sale for the delivery of wood. Concerning the conclusion of the contract and the rights and duties of the seller and the buyer, the provisions of the United Nations Convention of the International Sale of Goods (CISG) are to be applied. This Convention is explicitly not concerned with the validity of individual clauses of a contract or the validity of commercial customs (Art. 4(a) CISG).

      c) It is undisputed that the [Seller] delivered wood to [Buyer]. As proof for the price that has to be paid by [Buyer], [Seller's Assignee] submits six invoices which show a total claim of DM 130,020.00. The invoices show indications of quantities in the unit of AT. Furthermore, in five of the invoices it is referred to several "WG-No.", probably scale certificates. [Seller's Assignee] further submits 62 scale certificates. These are not scale certificates of the [Seller] but of [Buyer]. On these scale certificates, the quantity is stated in kg. Between the parties, it is disputed whether the scale certificates of the [Seller] or those of [Buyer] constitute the basis for the calculation of the price. This question can remain unanswered. It is a fact, that [Seller's Assignee] has not provided proof that the [Seller] delivered the quantity of wood listed on the invoices. [Seller's Assignee] did not submit scale certificate by the [Seller], but on the contrary those of [Buyer]. It is also impossible to compare the invoices with the scale certificates for their accordance, as the weight is once stated in AT and once in kg and as it is further impossible to determine which scale certificate relates to which invoice.

To conclude, [Seller's Assignee] did not prove that the [Seller] delivered the quantities of wood stated on the invoices. Thus, neither the amount of the total claim of DM 130,020.00 nor the amount of the asserted outstanding claim is shown. The claim is to be rejected in the amount of EUR 555.67 plus interest.

3. Concerning the claim of interest for late payment

[Seller's Assignee's position]

      a) [Seller's Assignee] demands interest for late payment in the amount of EUR 3,462.38 (originally DM 6,771.85). [Seller's Assignee] alleges that the total claim of DM 130,020.00 had been due on 4 June 1998 with regard to the period of payment of 90 days; and that the interest for late payment from 4 June 1998 to the average payments received of the two payments, which means until 18 June 1999, is owed at the rate of 5% of the requested amount.

[Buyer's position]

[Buyer] contests the claim for interest for late payment. Undisputedly, the creditor of the claim against [Buyer] was disputed. The due date of the claim was set aside by the freezing of payment and the order of attachment.

It cannot be burdened on [Buyer] that it retained the payment due to the unclear legal situation in order not to risk a double payment. The non-performance is justified by the objection that the claim is only payable after the resolution of the legal situation and therefore does not constitute a breach of duty. There was no delay of payment.

[Seller's Assignee's response]

[Seller's Assignee] argues that according to the CISG the only prerequisite for the claim of interest for late payment is that the claim is due. Grounds for exemption according to Art. 79 CISG are not given. According to [Buyer], the question of the due date is to be determined with regard to the contract of sale or the domestic law of the respective country.

      b) The due date is first of all determined by the agreement of the parties (Art. 58(1) CISG; Schlechtriem/Hager, Kommentar zum Einheitlichen UN-Kaufrecht-CISG, Munich 1990, Art. 58 CISG, No. 2). According to Art. 59 CISG, the buyer has to pay the price at the date that is agreed in the contract or that is determinable with regard to the contract and this Convention, without a request or the compliance with any formality by the seller.

[Seller's Assignee] asserts that the invoices were due after 90 days. The average due date was 4 June 1998. [Buyer] does not assert a longer period of payment. According to its submissions, the calculation of the delivered wood is always made at the end of each month and the amount paid to the deliverer then. According to the conditions of delivery of [Buyer], (but for the year 2001) payment is due after 30 days. Consequently, payment would have had to take place at the end of April 1998. Therefore, it can be referred to the due date of 4 June 1998 that was asserted by [Seller's Assignee].

[Buyer] submits that the due date of the payment was set aside by the freezing of payment and the order of attachment. Such a legal provision is not known by the court. [Buyer] does in no way give grounds for its submission.

      c) If a party fails to pay the price or any other due amount, the other party is entitled to interest on these amounts (Art. 78 CISG). There are no further prerequisites than the due date and the non-performance for the claim of interest. Especially, a reminder by the creditor is not necessary. Also an exemption of the debtor under Art. 79 CISG is not possible. The exemption of the debtor under Art. 79 CISG does only lead to a lapse of the claim for compensation, but the creditor can still rely on any other legal remedy. The payment of interest under Art. 78 CISG is not compensation and it is therefore independent of the question whether the debtor can justify its delay of payment according to Art. 79 CISG (Schlechtriem/Bacher, Kommentar zum Einheitlichen UN-Kaufrecht-CISG, 3rd edition, Art. 78 CISG, No. 7 and 17; Schlechtriem/Stoll, Munich 1990, Art. 79 CISG, No. 57; OR-Koller, Basler Kommentar, Art. 214 OR, No. 29, Art. 214 OR). Undisputedly, [Buyer] only paid the invoices one year after the due date. It is therefore obliged to pay interest for the period of time from the due date to the date of payment of the claim.

[Buyer] argues that the non-performance was justified due to the unclear legal situation and the risk of double payment and did therefore not constitute a breach of duty, and that a delay of payment did not take place. With regard to the above-mentioned considerations, this objection is not to be followed. The obligation to pay interest still remains even if the debtor is able to prove an exemption under Art. 79 CISG.

[Buyer] further submits that it is due to generally accepted principles that a claim for interest for late payment cannot be asserted if the debtor is able to show that the delay of payment was not due to its fault. This objection is also irrelevant. In contrast to several domestic laws, the CISG does not provide this prerequisite for the obligation of payment of interest for late payment. However, under Swiss law fault is only relevant for a claim for compensation (Art. 103(2) OR), but not for a claim for interest for late payment.

[Opinion of the Court]

      d) To conclude, [Buyer] owes [Seller's Assignee] the requested interest for late payment on the amount of the invoice of DM 128,906.20 at a rate of 5% from 4 June 1998 to 18 June 1999. The rate of interest of 5% is not contested. This leads to an amount of DM 6,713.85 or EUR 3,432.72.

4. Concerning the costs for legal counsel

[Seller's Assignee's position]

      a) [Seller's Assignee] demands compensation of the damage it suffered due to the retention of legal counsel. It requests compensation of the cost of the counsel G (...) & S (...) of the invoice with the amount of DM 2,284.97 (EUR 1,168.28) as well as of the invoice of counsel Dr. I (...) of Fr. 5,617.60. As [Buyer] did not pay its debt within the periods of payment, [Seller's Assignee] had to retain legal counsel in Germany and Switzerland.

[Buyer's position]

[Buyer] contests the claim as to the grounds as well as to the amount. The payment was adjourned by the freezing of payment and the order of attachment. The deferral of payment was not [Buyer]'s fault. Also, an instruction of legal counsel was not necessary. From the beginning, [Buyer] pointed out that it would pay as soon as the legal situation was clear. If [Seller's Assignee] had provided early and sufficient proof for the assignment, the delay of payment would not have taken place.

[Seller's Assignee's response]

      b) If the buyer does not fulfil one of its obligations according to the contract or under this Convention, the seller can claim compensation according to Arts. 74-77 (Art. 61(1)(b) CISG). As compensation for the breach of duty committed by one party, the other party is entitled to compensation of the loss it suffered due to the breach of duty, which includes lost profit. However, this compensation must not exceed the loss that the party in breach foresaw as a possible consequence of its breach of contract at the time of the conclusion of the contract or which it must have foreseen with regard to the circumstances it knew or must have known (Art. 74 CISG). It is sufficient for a breach of contract under Art. 74 CISG, that an obligation is not fulfilled at the time it is due. The damage to be compensated can also result from expenses of the creditor that were caused by the breach of contract. Also, the costs for legal counsel can constitute damages to be compensated, if the breach of contract gives reasonable cause for this prosecution of an action.

The strict objective liability of the debtor under the CISG is mitigated by the limitation to the compensation of the foreseeable damage. It is decisive whether at the time of the conclusion of the contract the debtor could have foreseen that - if the contract was breached in the respective way - these consequences of the damage could have taken place. It is irrelevant, whether the debtor had to foresee the breach of contract. The foreseeability of the damage is to be determined from the perspective of the party in breach of the contract at the time of the conclusion of the contract with regard to the circumstances that it knew or could have known at that time. For the extent of the compensation, it is irrelevant if the breach of contract was caused with fault (Schlechtriem/Stoll, Munich 1990, Art. 74 CISG, No. 6, 13, 14, 27 and 29).

Based on these considerations, the costs for legal counsel of [Seller's Assignee] are damages that can generally be compensated. For [Buyer] it was foreseeable that [Seller's Assignee] would retain legal counsel in case of non-performance of the payment.

[Buyer's response]

      c) [Buyer] asserts that the delay of payment was not its fault. If [Seller's Assignee] had provided proof of the assignment early enough and sufficiently enough, the delay of payment would not have taken place.

[Buyer] implicitly asserts grounds for exemption according to Art. 79 CISG.

[Opinion of the Court]

Under this provision, a party is not liable for the non-performance of one of its contractual duties if it proves that the non-performance is based on facts that are not within its own scope of action and that it could not reasonably expected of it to take this impediment into account at the time of the conclusion of the contract or to avoid or supersede the impediment or its consequences. In the following, the requirements for the exemption are to be considered in detail:

            aa) Impediments can only be objective circumstances that hinder the performance. The contrast to that are personal circumstances that constitute an incapacity to perform (Schlechtriem/Stoll, Munich 1990, Art. 79 CISG, No. 18).

On 18 June 1998, [Buyer] was served an order of a freezing of payment according to Section 845 German Code of Civil Procedure concerning the amount of DM 61,207.31. By decision of 24 June 1998, the County Court of Rotenburg a. d. Fulda issued the order of attachment in the execution proceedings between A (...) P (...) and the [Seller].

[Buyer] as the third party debtor was prohibited to pay to the [Seller] as far as the claim resulting of the delivery of wood of the month of March 1998 was attached. Thereafter, it was disputed between the legal representatives of Company A (...) P (...) and [Seller's Assignee] who was entitled to the claim. Both demanded payment from [Buyer]. With regard to the result of the taking of evidence, the assignment of the claim to [Seller's Assignee] was not proved at that time. Thus, there were undoubtedly objective circumstances that hindered the payment. Due to these circumstances, [Buyer] could not be sure, to whom it could pay without the risk of double payment.

            bb) For the exemption, an impediment that arose after the conclusion of the contract is required (Schlechtriem/Stoll, Munich 1990, Art. 79 CISG, No. 20). This requirement is fulfilled.

            cc) The impediment must result from a sphere that is not controlled by the debtor. Also this requirement is fulfilled. Neither the execution proceedings against the [Seller] nor the assignment of the claim to [Seller's Assignee] fall within the scope of responsibility of [Buyer].

            dd) Even in the case of an impediment on which it has no influence, the debtor is liable if the impediment can be overcome in a way that can be expected of the debtor. Concerning this, a strict standard has to be applied (Schlechtriem/Stoll, Munich 1990, Art. 79 CISG, No. 27). As mentioned before, [Buyer] was not allowed to pay to the [Seller] due to the freezing of payment and the order of attachment. It was disputed between the legal representatives of A (...) P (...) and [Seller's Assignee] who was entitled to the claim. [Seller's Assignee] demanded payment for the reason that the claim was assigned to it. [Buyer] asserts that [Seller's Assignee] did not contribute anything in order to prove that the claim of the [Seller] was assigned to [Seller's Assignee] before the enforceable default summons.

[Seller's Assignee] elaborates in its court claim that on the invoices of [Seller] it was noted: "Payments (...) shall be made to DG D (...) GmbH (...), to which we assigned the claim that is the basis for this invoice." According to Section 410(1) German Civil Code, the debtor is only obliged to pay to the new creditor if it is handed a document stating the assignment which is signed by the old creditor. These provisions do not apply if the former creditor informs the debtor about the assignment in writing (Section 410(2) German Civil Code). According to the submitted invoices, the [Seller] informed [Buyer] of the assignment in writing, so that further proof is generally not necessary. However, [Buyer] contests that it received these invoices. With regard to its submissions, it is not usual in the wood trade, that the deliverer produce the invoices and send them to [Buyer]. [Seller's Assignee] did not provide proof that the invoices were actually sent to [Buyer]. Thus, it is not shown that the [Seller] informed [Buyer] of the assignment in writing. Under these circumstances, [Buyer] was entitled to request the submission of the factoring-contract. It can be concluded from the files, that [Seller's Assignee] did nothing to prove the assignment. It only asserted the assignment. By writing of 23 September 1998 by [Buyer]'s legal counsel, [Seller's Assignee] was informed that a notification of the assignment was not made or was made too late. A claim for release from bankrupt's estate of [Seller's Assignee] has not been proved so that a payment to [Seller's Assignee] was not advisable. [Seller's Assignee] did not provide proof after this writing, either. It can be seen in the file, that the factoring-contract was finally served in the middle of May 1999 by the legal counsel of A (...) P (...). Thereupon, [Buyer] made the first partial payment on 19 May 1999. From the factoring-contract that was finally presented, it resulted that the claim of the [Seller] had already been assigned to [Seller's Assignee] at the time of the enforceable default summons and the levy of execution. As a consequence, Company A (...) P (...) withdrew the levy of execution on 28 June 1999 and [Buyer] immediately fulfilled the outstanding payment.

To conclude, it is determined that nearly for one year [Seller's Assignee] did nothing to prove the assignment of the claim to [Buyer] and Company A (...) P (...). Especially in view the background of the freezing of payment and the order of attachment, it could not have been expected of [Buyer] to pay to [Seller's Assignee].

      d) On the basis of these considerations [Buyer] can rely on an impediment under Art. 79(1) CISG. Thus, it is not liable for the non-performance of its obligation. The claim for compensation is to be rejected.

5. Concerning the costs

The costs of the proceedings are to be burdened upon the defeated party, in so far as the law does not provide otherwise. If the parties are partially defeated and if there is not just a slightly excessive demand, the cost are to be distributed proportionately (Section 119 Swiss Code of Civil Procedure).

The value in dispute is about Fr. 13,500.00. Mainly, foreign law had to be applied. Within the official scale of fees, the court costs are therefore set at the amount of Fr. 2,000.00 (Section 7 (a) KoV). The fee of the legal counsel is limited to 40% of the value in dispute. The general fee can reasonably raised, if the proceedings require special efforts with regard to the facts or the law (Sections 55(1), 65(1) KoV). The costs of legal counsel V (...) P (...) are set forth at the amount of Fr. 5,870.30 (honorarium Fr. 5,429.70, expenses Fr. 26.00, tax Fr. 414.60) based on the statement of costs. The statement of costs of legal counsel Dr. I (...) of Fr. 8,120.50 is too high. At a value in dispute of Fr. 13,574.25, the honorarium of the legal counsel is at the maximum Fr. 5,429.70. The complete costs of the conciliation proceedings are to be beard by [Seller's Assignee] (Section 190 (4) Swiss Code of Civil Procedure). For the generally necessary photocopies, Fr. 20.00 have to be paid. The copying of one's own files is contained in the work of the law office (Section 70 KoV). The amount of Fr. 386.00 only for photocopies certainly includes a high amount of copies that cannot be invoiced. These are to be set forth at Fr. 100.00. The statement of costs of Dr. I (...) is therefore set forth at Fr. 6,219.60 (honorarium Fr. 5,429.70, expenses Fr. 220.50, costs of conciliation proceedings Fr. 140.00, tax Fr. 429.40).

[Seller's Assignee] was successful in its court claim at a rate of 38%. Therefore the following distribution of costs is justified.

RULING

  1. [Buyer] is ordered to pay [Seller's Assignee] the amount of EUR 3,432.72.

  2. Claims in excess of this amount are rejected.

  3. [Seller's Assignee] is to pay the court costs in the amount of Fr. 2,000.00, its own costs of legal counsel and Fr. 500.00 of [Buyer]'s costs of legal counsel. The costs of legal counsel in excess of this amount are to be paid by [Buyer].

    The court costs of Fr. 2.000,00 are set off against the advance in the amount of Fr. 1.400,00 paid by [Seller's Assignee]. [Seller's Assignee] has to pay the remaining court costs of Fr. 600,00 to the County Court chambers of Willisau.

  4. Appeal against this judgment is admissible (Sections 245 et seq. Swiss Code of Civil Procedure). The declaration of appeal must be submitted in writing (with one copy for the court and one for each counter-party) to the Higher Court of the Canton Luzern within 20 days after service of the judgment. It must contain the motions for the change of the ruling of the judgment of the first instance. The challenged judgment must be attached.

County Court Willisau
I. Department

The Presiding Judge
The Court Clerk


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, I (...) GmbH is referred to as [Seller], Plaintiff is referred to as [Seller's Assignee], and Defendant is referred to as [Buyer].

** Kirstin Stadtländer is a trainee lawyer at the Higher Regional Court of Düsseldorf. She obtained her law degree at Humboldt University Berlin and was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 2001/02 and a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.

*** 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.

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