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CISG CASE PRESENTATION

Denmark 22 April 2004 Supreme Court (Furniture parts case)
[Cite as: http://cisgw3.law.pace.edu/cases/040422d1.html]

Primary source(s) of information for case presentation: CISG Nordic website

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Case identification

DATE OF DECISION: 20040422 (22 April 2004)

JURISDICTION: Denmark

TRIBUNAL: Højesteret [Supreme Court]

JUDGE(S): Marie-Louise Andreasen, Asbjørn Jensen, Børge Dahl

CASE NUMBER/DOCKET NUMBER: U.2004.1869H

CASE NAME: Unavailable

CASE HISTORY: 1st instance District Court of Odense 21 May 2001; 2d instance Eastern High Court 17 January 2003

SELLER'S COUNTRY: Denmark

BUYER'S COUNTRY: Germany

GOODS INVOLVED: Furniture parts


UNCITRAL case abstract

DENMARK: Supreme Court, 22 April 2004 (Birkemose A/S v. Interstuhl BuromoÅNbel GmbH)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/100],
CLOUT abstract no. 996

Reproduced with permission of UNCITRAL

Abstract prepared by Joseph Lookofsky, National Correspondent

A Danish seller and a German buyer contracted for the delivery of chrome plated steel tubes for use by the buyer in connection with the manufacture of furniture. Due to problems attributable to its subcontractor, the seller could not deliver all the tubes as originally agreed. In February 1999 the parties agreed that the seller should deliver as many chrome plated tubes as possible and at the same time deliver the remaining number of tubes in raw steel. Following delivery by the seller of a quantity of uncoated tubes, the buyer ceased to place further orders. Later, in July 1999 the buyer notified the seller that it would not pay for prior deliveries of uncoated tubes, claiming that uncoated tubes had been delivered later than the date agreed and that the buyer was entitled to a set-off sums paid by the buyer to a German subcontractor for chrome coating.

Denying that any deadline had been agreed for the seller's delivery of uncoated tubes and further denying that it had agreed to pay for the chroming of uncoated tubes delivered, the seller sued the buyer for payment. The seller also argued that the buyer had lost any alleged right to a set-off in any case, as the buyer first gave notice of this claim in July 1999; in reply to this argument, the buyer argued that it was not necessary to notify the seller of its claim, as the seller had known of the delays concerned.

The City Court of first instance held that the buyer had accepted a modification of the contract in February 1999 and that there was no evidence that the parties had set a deadline for the delivery of uncoated tubes. Describing the buyer's claimed right of set-off as a claim for damages, the court of first instance further held that the buyer, by failing to notify the seller of its various claims until July 1999, had lost the right to claim a set-off by reason of passivity under general principles of the Danish law of contract and sales law. In this connection the court noted that the situation could also be expressed as a violation by the buyer of the generally applicable obligation of contracting parties to act in accordance with the principle of Danish domestic law which requires contracting parties to act loyally towards one another. While not referring specifically to article 7 CISG, the City Court noted that it saw no evidence that this principle was confined to obligations governed by Danish domestic law or that the principle did not apply under the CISG. On the contrary, the court noted, the parties to an international transaction have a particular need to be able to "count on one another". For these reasons the court held that any claim for damages which the buyer might otherwise have against the seller was barred by reason of passivity. For the reasons stated, the buyer's claim for damages was denied, and the buyer was held required to pay the agreed price.

On appeal to the Western High Court, the buyer relinquished its claim that deliveries had been delayed, claiming instead that deliveries of uncoated steel after the alleged deadline for such deliveries constituted nonconforming delivery; in this connection, the buyer maintained that the seller was barred for claiming late notice under article 40 CISG. Rejecting these arguments, the High Court affirmed the decision of the court of first instance. The buyer then appealed the decision of the Western High Court to the Supreme Court, but only as regards the amount of damages awarded to the buyer under domestic procedural law for costs incurred in connection with the translation of German legal documents into Danish. The decision of High Court, affirming the court of first instance with respect to the substantive issues in the case, was thus allowed to stand.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 44

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Danish): CISG Nordic website <http://www.cisgnordic.net/040422DK.shtml>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated October 1, 2013
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