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CISG CASE PRESENTATION

Germany 21 April 2004 Appellate Court Düsseldorf [15 U 222/02] (Thread case) [detailed abstract available]
[Cite as: http://cisgw3.law.pace.edu/cases/040421g2.html]

Primary source(s) of information for case presentation: CISG-online.ch website

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Case identification

DATE OF DECISION: 29940421 (21 April 2004)

JURISDICTION: Germany

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

JUDGE(S): Schüßler, Spahn, Tackenberg

CASE NUMBER/DOCKET NUMBER: 15 U 222/02

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

CASE HISTORY: 1st instance Landgericht Düsseldorf (32 O 173/01) 10 December 2002

SELLER'S COUNTRY: Italy

BUYER'S COUNTRY: Germany

GOODS INVOLVED: Thread


Case abstract

GERMANY: Oberlandesgericht Düsseldorf [I-15 U 222/02], 21 April 2004

Case abstract prepared by dr. Andrea Vincze [*]

Pursuant to Arts. 53 and 62 CISG, Plaintiff [Seller] requested the Court to order Defendant [Buyer] to pay the price of goods (thread) delivered to "A. Italia S.r.l." upon [Buyer]'s instruction. The governing law the CISG since the parties' places of business are in Italy and Germany, Contracting States that had ratified the CISG at the time of the conclusion of the contract. The parties do not dispute that [Buyer] ordered "Type 2/32" thread from [Seller] on 30 August 2000. Thread was delivered and [Seller]'s invoice of 30 September 2000 was based upon that delivery.

[Buyer] contended that the thread that was delivered was "Frassino 2.26", which is not the same as the "Type 2/32" thread that was ordered. Citing Arts. 35(1) and 39(1) CISG, the Court ruled against the [Buyer], holding that:

     -      Although the seller is obliged to deliver goods which conform in quantity, quality and to contractual specifications according to trade practices, differences in quantity and contractual requirements can only be regarded as non-conforming goods under Art. 35 CISG if the defects reach a certain level of seriousness, and the buyer must raise timely objections as required by Art. 39 CISG.
 
     -      In the instant case, [Buyer] objected to insignificant defects and alleged differences in thickness (2/26 instead of 2/32) and only during the course of the proceedings. That complaint is delayed and inadmissible.
 
     -      [Buyer] is therefore obliged to pay the amount specified in [Seller]'s invoice of 30 September 2000. A deduction of Italian lira [Itú] 1,618,500 shall also be taken into account, which is based on other invoices.

[Seller] also sought to have [Buyer] required to pay the contract price of other goods ordered on 30 August 2000. As [Seller] failed to explain upon what facts the price of that delivery was calculated, a request to pay the price for these goods is not substantiated. Therefore, [Seller] can only claim Itú 15,803,880 minus Itú. 1,224,000 (Farb-No. 191) [equals Euro 7,529.88] which was the amount originally claimed by [Seller] under the disputed invoice.

Concerning other aspects, the Court held [Seller]'s claim inadmissible. The Court ruled that [Seller] cannot require [Buyer] to comply with the amounts included in other invoices. In resolving these matters, the Court ruled on evidentiary issues not connected with the CISG [representation of a "GmbH" (German limited liability company) by its "general manager" (Geschäftsführer), etc.]

The Court then ruled that [Seller]'s request for interest on the claim that was allowed is founded and that, as the CISG does not provide for rate of interest, this issue is governed by Italian law.


FOOTNOTES

* Dr. Andrea Vincze is a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She received her law degree from the University of Miskolc, Hungary, in 2002. Currently, she is a Ph.D. candidate at that university, working on her research project on international commercial arbitration and ICSID arbitration. She has also dealt with cross-border and Internet-related copyright issues.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 35(1) ; 39(1) ; 78 [Also cited: Articles 53 ; 62 ]

Classification of issues using UNCITRAL classification code numbers:

35A [Conformity of goods: quality, quantity and description required by contract];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonabletime];

78B [Rate of interest]

Descriptors: Conformity of goods ; Lack of conformity notice, timeliness ; 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/914.pdf>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 10

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Pace Law School Institute of International Commercial Law - Last updated August 10, 2005
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