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CISG CASE PRESENTATION

Germany 28 May 2004 Appellate Court Düsseldorf (Television sets case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040528g1.html]

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

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Case identification

DATE OF DECISION: 20040528 (28 May 2004)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: I-17 U 20/02

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

CASE HISTORY: 1st instance Landgericht Krefeld 5 December 2001 / 16 March 2002

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Television sets


Case headnote

Reproduced from Internationales Handelsrecht [5/2004] 203

"1. A set-off with a counterclaim that is not governed by the CISG against a claim for payment according to Art. 53 CVISG is subject to the domestic law applicable to the claim that is the subject of the payment action (here: Italian law).

"2. On the preconditions of an assignment under Italian law.

"3. The CISG applies to an agreement on the rescission of a sales contract that is subject to the CISG.

"4. If the seller does not deliver within the agreed period (Art. 34(b) CISG) he is liable to pay damages for default without a reminder of the buyer.

"5. It is not being determined whether the amount of interest payable according to Art. 78 CISG is subject to the law that applies to the contract according to the private international law of the forum state or subject to the law of the country where the party owing repayment is domiciled."

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Case abstract

GERMANY: Oberlandesgericht Düsseldorf 28 May 2004

Case law on UNCITRAL texts (CLOUT) abstract no. 591

Reproduced with permission of UNCITRAL

Abstract prepared by Ulrich Magnus, National Correspondent, and Klaus Bitterich

An Italian company (plaintiff) sold television sets both to the defendant, a German company, and to the defendant's affiliated German (Company E). The defendant had deducted about 100,000 DM from the invoiced price claiming that Company E was entitled to payment of this sum as a restitution for costs of repair and customer service and that this deduction had been assigned to him by the Company E. The defendant argued that the plaintiff agreed to pay back such costs relating to customer complaints exceeding a 5 per cent quota of the television sets delivered to the Company E. As it had been sued for the outstanding debt, the defendant raised a compensation defence claiming the restitution of repair and customer costs. Moreover, the defendant further put forward a counterclaim for restitution of the price paid under another sales contract between the parties which had later been cancelled. The plaintiff in turn sought to compensate this claim with the interests accrued on the amount due, on the allegation that the defendant did not request the delivery of television sets although it was obliged to do so under various sales contract provisions the parties entered into in 1995 and 1996.

The Regional Court of Appeal dismissed the claim, on the argument that the plaintiff could not rely on a failure of the Company E to give notice of a lack of conformity under the provision of article 39 CISG. By agreeing to repay the costs of repair and customer service as far as more than 5 per cent of the delivered television sets were concerned, the parties did not alter the liability of the plaintiff under article 45 CISG. They intended, however, to allocate the risk of consumer complaints in an appropriate manner by excluding the provisions of the CISG. Therefore, there was no obligation of the Company E to examine the goods and to give notice of non-conformity pursuant to articles 38 and 39 CISG. As the plaintiff agreed to repay the costs of repair and customer service in excess of the outstanding purchase price, the Court concluded that the defendant extinguished his debt by setting it off.

The Court recognized the counterclaim of the defendant. Referring to the right to modify or terminate a contract pursuant to article 29(1) CISG by the mere agreement of the parties, the court ruled that the Convention is applicable on an agreement to terminate a contract governed by the CISG and that the effects of such an agreement have to be determined pursuant to article 81(2) CISG. Under this provision, the defendant was entitled to restitution of whatever he had paid under the contract.

With regard to the alleged interest debt, the Court referred to article 78 CISG and held that the facts of the case did not indicate a failure of the defendant to pay the price at the time specified in the contracts in question. Under the provisions of these contracts, the defendant was bound to pay the price "five days after delivery" and the plaintiff was bound to arrange for carriage of the goods. The defendant therefore was not obliged to pay the price before the plaintiff had placed the goods at his disposal pursuant to article 58(1) CISG. As the defendant did not refuse to accept delivery of the goods, therefore it did not fail to meet the requirements of article 60(a) CISG. Furthermore, according to the contract the defendant was not bound to request the delivery of the goods at a specified time. For these reasons, there was no ground for an entitlement to interest and, consequently, the defendant's counterclaim could not be compensated by the alleged entitlement to interest.

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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 4 ; 33 ; 53 ; 74 ; 81(1) [Also cited: Articles 29(1) ; 31(1) ; 38 ; 39 ; 45 ; 58(1) ; 60(a) ; 78 ; 84 ] [Also relevant: Article 7(2) ]

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Scope of Convention (issues covered and issues excluded): set-off

33A [Time for delivery: on date fixed by or determinable by contract];

53A [Buyer's obligation to pay price of goods];

74A [General rules for measuring damages (loss suffered as consequence of breach];

81C [Obligation of both parties under Convention: restitution by each party of benefits received]

Descriptors: Scope of Convention ; Set-off ; Delivery ; Price ; Damages ; Restitution

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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 (German): CISG-online.ch database <http://www.cisg-online.ch/cisg/overview.cfm?test=850>; [5/2004] Internationales Handelsrecht 203-215

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) Düsseldorf

28 May 2004 [I-17 U 20/02]

Translation [*] by Tobias Koppitz [**]

Edited by Jakob Heidbrink [***]

RULING

Upon the appeal of the Plaintiff [Seller], and refusing the further appeal, the judgment of the 1st Commercial Court of the Landgericht of Krefeld [hereinafter Court of First Instance] handed down on 5 December 2001, as well as its supplementary judgment handed down on 6 March 2002, are partly altered, and in their entirety phrased as follows:

The action is dismissed.

Admitting the cross-action and the alternative cross-action of the Defendant [Buyer], the [Seller] is ordered to pay to the [Buyer] the sum of 77,540.47 Euro, to which is added interest thereon at the rate of 2.5 percent for the period from 4 March 2000 to 31 September 2000; at the rate of 3.5 percent for the period from 1 January 2001 to 31 December 2001; and at the rate of 3 percent from 1 January 2002 onward.

The claim for interest exceeding the sums awarded, and advanced in the cross-action and the alternative cross-action, is dismissed.

The [Seller] to bear the costs of the litigation.

The judgment is provisionally enforceable.

The [Seller] may prevent enforcement by depositing as security 120 percent of the enforceable amount due pursuant to this judgment, unless the [Buyer], before enforcement, deposits as security 120 percent of the enforceable amount. The appeal is admitted.

SUMMARY OF FACTS

For several years, the parties - the [Seller] of L... Italy and the [Buyer] of K... Germany - had an ongoing business relationship, during which the [Seller] delivered to the [Buyer], and in some cases also to the [Buyer]'s subsidiary, E... GmbH, television sets, which the [Buyer] or its subsidiary resold to retailers.

Within the framework of this business relationship, the [Seller], pursuant to several orders from the [Buyer], during the first half of the year 1998 delivered to the [Buyer] a multitude of television sets. The sets are subject to [Seller]'s invoices of 2 June 1998 (No. 50819, p. 5 and 6 of the Court File), of 9 June 1998 (No. 50857, p. 8 and 9 of the Court File), and of 10 June 1998 (No. 50870, p. 14 and 15 of the Court File, and No. 50872, p. 17 of the Court File). The [Buyer], on 25 June 1998, deducting 2 percent cash discount, paid an installment of Deutsche Mark [DM] 402,812 on the total sum of these invoices of DM 529,650. The [Buyer] withheld the remaining amount of DM 116,216 in reliance on an alleged counterclaim. In the present action, the [Seller] demands the payment of DM 69,058 (35,308.79 Euro) of the remaining amount; in response to an enquiry by the Court of Appeal, the [Seller] has made clear that it that this claim regards the invoice last mentioned, of 10 June 1998 - No. 50872 -, of the amount of DM 158,454 (p. 17 of the Court File).

Against this claim, the [Buyer] has, in the first alternative, declared a set-off, using the counterclaim of DM 116,216 (59,420.30 Euro) mentioned above, which was assigned to the [Buyer] by its subsidiary company, E... GmbH. The [Buyer] derives the counterclaim from a contract between the [Seller] and E. GmbH for the delivery of 36,788 television sets of the model 7971, which E... GmbH ordered from the [Seller] by Purchase Order No. 1000282 of 26 March 1997 (pp. 35 to 38 of the Court File). This order, written in the English language, contained a provision according to which the [Seller] bound itself to reimburse costs for repairs and services exceeding a ratio of 5 percent of the delivered sets. By letter of 17 October 1997 (p. 50 of the Court File), the [Seller] explicitly declared its assent to this term. On the basis of this agreement, the [Buyer] demands payment of the sum mentioned above of DM 116,216 in reimbursement.

In the second alternative, the [Buyer] has declared a set-off against another counterclaim the [Buyer] alleges it is entitled to. This counterclaim, in its entirety, amounts to DM 151,655.98, and the [Buyer], by way of its cross-action, also demands payment of the excess after set-off of this claim. The [Buyer] derives this counterclaim from an understanding between the parties that the purchase of additional television sets ordered by the [Buyer] from the [Seller] during 1998 be partially cancelled and performances rendered be restituted (cf. the orders in Appendix B 6, pp. 83 to 98 of the Court File). After notices of defect given by the [Buyer], the parties during a meeting agreed that the [Seller] take back such television sets from the relevant deliveries as were still at the [Buyer]'s and reimburse the purchase price. However, the parties disagree as to whether a set-off agreement was reached at the same meeting regarding further claims by the [Seller]. In any case, on the basis of this agreement, the [Buyer] returned a total of 729 television sets and presented the [Seller], first on 13 December 1999, and then again on 27 January 2000, with invoices amounting to DM 154,960, respectively (appendices B 7 and B 8, pp. 99 to 101 of the Court File). The [Seller], on its part, presented the [Buyer] with a corresponding credit of account amounting to DM 154,751 (p. 147 of the Court File). From this latter amount, the [Buyer] now deducts the cash discount of 2 percent originally withheld, and calculates its remaining claim for reimbursement as amounting to DM 151,655.98.

The [Seller], who denies the existence of any counterclaim of the [Buyer], has requested the Court to order the [Buyer] to pay to the [Seller] DM 69,058 (35,308.79 Euro) plus 5 per cent. interest thereon from 18 June 1998 onward.

The [Buyer] has requested that the Court dismiss the [Seller]'s claim. Further, the [Buyer] has instituted a cross-action requesting that the Court order the [Seller] to pay DM 82,597.98 (42,231.68 Euro) plus 5 percent interest thereon from 4 March 2000 onward.

Alternatively, in case the [Seller]'s claim is dismissed on the basis of the set-off put forward in the first alternative, and not only on grounds of the set-off in the second alternative, the [Buyer] has increased the amount requested in its cross-action and requests that the Court order the [Seller] to pay to the [Buyer] an additional DM 69,058 (35,308.79 Euro) plus 5 percent interest thereon from 4 March 2000 onward.

[Position of the Buyer at first instance]

The [Buyer] has asserted the following:

The claim has expired due to the set-off against the counterclaim of DM 116,216 which the [Buyer] has had assigned to it by E... GmbH. The [Buyer]'s subsidiary was entitled to reimbursement of costs of that amount relating to repairs and servicing carried out on sets delivered by the [Seller] pursuant to the order of 26 March 1997. On the basis of this and subsequent orders, the [Seller] had delivered to E... GmbH a total of 38,648 television sets of model 7971. Due to technical deficiencies, warranty services, repairs, and servicing had become necessary in relation to 2,728 sets of this model. As the defect ratio had thus exceeded 5 percent, the [Seller] is bound to reimburse the costs for repairs and servicing for a total of 796 sets. These costs amounted to DM 146 in total for each set. This results from an agreement between E... GmbH and the company H. T. K. GmbH & Co. KG, according to which warranty services and servicing that may become necessary in relation to television sets distributed to consumers by retailer were to be carried out by that firm. This agreement was concluded on the basis of another contract already concluded on 24 October 1995 (pp. 39-49 of the Court File) and relating to a different television model. By this latter agreement, the [Seller] had transferred to H. T. K. GmbH & Co. KG its obligation towards purchasers from the [Seller] to perform warranty services and servicing. H. T. K. GmbH & Co. KG was to receive an amount of in total DM 146 plus VAT for each repair. In 1997, the service agreement was extended to the television model in issue in the present case. On the basis of this agreement, H. T. K. GmbH & Co. KG had repaired a total of 2,728 television sets of the relevant type, and had received DM 146 for each repair (cf. Appendices B 4 and B 5, pp. 51 to 82 of the Court File). The claim for the reimbursement of DM 116,216 which had thus accrued to its subsidiary had been assigned to the [Buyer] by E... GmbH at the beginning of June 1998; as a precautionary measure, the assignment was repeated in writing on 4 January 2001 (pp. 106 and 404 of the Court File).

The counterclaim of DM 151,655.98, which has been used in the alternative for set-off, and which, furthermore, has been made the subject of the cross-action and the alternative cross-action, is based on the parties' understanding by which the [Seller] bound itself to take back, against refund of the purchase price, a total of 729 of the television sets delivered.

The [Seller] has requested the court to dismiss the [Buyer]'s cross-action as well as the alternative cross-action.

[Position of the Seller at first instance]

The [Seller] has submitted the following:

German Courts are not internationally competent either for the set-offs declared by the [Buyer] or for the [Buyer]'s cross-action and alternative cross-action. In addition, the set-offs could not be considered, as the formal prerequisites for set-offs according to the Italian law applicable to them have not been met. Furthermore, the [Buyer] is not entitled to the counterclaims it asserts.

This applies, in particular, to the claim assigned by E... GmbH for reimbursement of costs for alleged warranty services and servicing. The [Seller] had merely delivered the 36,788 television sets denoted in the order. These sets have neither been defective, nor has notice of the defects alleged to have existed in 2,728 sets been given in due time and in due form. The contract submitted by the [Buyer] with H. T. K. GmbH & Co. KG for the assignment of warranty services and servicing does not relate to the television model which is the object of the present action. The [Seller] pleads ignorance and denies that H. T. K. GmbH & Co. KG had repaired 2,728 television sets from the delivery in question, and received DM 116,216 for such services.

Nor is the [Buyer]'s own claim for reimbursement of the purchase price of DM 151,655.98 well-founded. The [Buyer] was not entitled to any warranty claims. It is true that the [Seller], as a sign of goodwill, has declared itself willing to take back the television sets against refund of the purchase price, but only on the condition that the [Buyer]'s claim for reimbursement of the purchase price be set-off against the [Seller]'s counterclaim of DM 152,951.

After the assessing the evidence, the Court of First Instance regarded the [Buyer]'s counterclaims as substantiated on the whole. In its judgment of 5 December 2001 - which is the object of the present appeal - the Court, having regard to [Buyer]'s set-off in the first alternative, therefore dismissed the claim and allowed the cross-action. The [Buyer]'s alternative cross-action, however, was not considered in the Court's decision. Upon the [Buyer]'s motion, proceedings have been conducted for the supplementation of the judgment in this respect. These proceedings resulted in the supplementary judgment of 6 March 2002, by which the alternative cross-action also was fully allowed.

[Position of the Seller in the appeal]

The [Seller] now appeals against these decisions and asserts the following, repeating, expanding, and supplementing its submissions in the Court below:

The Court of First Instance was not justified in dismissing the [Seller]'s claim. As regards the set-off the [Buyer] bases on the claim assigned to it, and which was deemed to have been substantiated, it has been overlooked that German courts do not have international jurisdiction in this respect, and that, furthermore, the formal prerequisites for set-off required by Italian law have not been fulfilled. In essence, the [Seller] maintains the non-existence of the counterclaims on the grounds of the factual and legal reasons submitted already in the Court below. The alleged assignment of the claim to the [Buyer] has not been proven, either.

The cross-action raised by the [Seller] [sic! Should be [Buyer]] is not admissible, as German courts lack international jurisdiction. Nor is the claim substantiated as the parties had reached an understanding to set off the claim for the purchase price against the [Seller]'s counterclaims of DM 152,951.

Alternatively, the [Seller] claims a set-off of, in total, eight claims, together amounting to DM 152,951 (78,202.60 Euro), against the claim asserted by the [Buyer]. In this respect, the [Seller] submits the following:

Pursuant to orders of the [Buyer], the [Seller] had, among other things, delivered the goods which are subject of the [Seller]'s invoices of 3 October 1997 (No. 51516, p. 134 of the Court File), of 17 November 1997 (No. 51889, p. 135 of the Court File), of 12 January 1998 (No. 50039, p. 136 of the Court File), of 21 January 1998 (No. 50101, p. 137 of the Court File), of 16 July 1998 (No. 51056, p. 138 of the Court File), and of 2 January 1998 (No. 51724, p. 139 of the Court File). Of the invoices of 17 November 1997 and of 2 January 1998, DM 1,280 and DM 9,600 still remain unpaid, while none of the other invoices has yet been paid at all. The invoice of 3 October 1997 (No. 51516, p. 134 of the Court File) is based on a contract for the sale of television sets concluded orally at the Internationale Funkausstellung. Without any justification, the [Buyer] has withheld DM 1,280 of the invoice of 17 November 1997 (No. 51889, p. 135 of the Court File). The invoices of 12 January 1998 (No. 50039, p. 136 of the Court File) and of 21 January 1998 (No. 50101, p. 137 of the Court File) refer to the delivery of packaging cartons and photos ordered and received by the [Buyer]. The delivery of 16 July 1999 [sic!] (No. 51056, p. 138 of the Court File) is based on the order and delivery of a sample. The invoice of 2 January 1998 (No. 51724, p. 139 of the Court File) has, for reasons unknown to the [Seller], not been fully settled. In addition, the [Seller], as follows from its invoice of 30 December 1996 (No. 51874, p. 140 of the Court File), is entitled to interest amounting to DM 105,024. This claim results from the [Buyer]'s breach of contract by not requesting delivery at the agreed dates of the goods requested by orders of 8 September 1995 (No. 8815, pp. 366, 563, and 564 of the Court File), of 7 May 1996 (No. 10127, pp. 369, 569, and 570 of the Court File), of 7 May 1996 (No. 10128, pp. 370, 571, and 572 of the Court File), of 14 December 1995 (No. 9455, p. 371 of the Court File), 7 May 1996 (No. 10130, p. 372 of the Court File), of 14 December 1995 (Nos. 9462 to 9464, pp. 373 to 375, and 577 to 582 of the Court File), of 7 May 1996 (No. 10135, pp. 376, 583, and 584 of the Court File), or by a further order No. 10155, which cannot be found. Finally, as emerges from its letter of 14 October 1998 (pp. 141, 561, and 562 of the Court File), the [Seller] is entitled to damages amounting to DM 33,385, as the [Buyer], by its letter of 25 August 1998 (pp. 555 and 556 of the Court File), without justification partly cancelled order No. 14313 of 30 June 1996 (pp. 546 to 553 of the Court File). This order had been confirmed by the [Seller] in its letter of 20 July 1998 (pp. 553 and 554 of the Court File). In connection with this order, the [Seller] had incurred costs to the amount mentioned for the purchase of accessories (decals, manuals, and cartons); for these costs, [Seller] is entitled to demand reimbursement from the [Buyer].

The [Seller] requests the Court to alter the judgments appealed against, and

  1. Order the [Buyer] to pay to the [Seller] DM 69,058 (35308.79 Euro) plus 5 percent interest from 18 June 1998 onward, as well as
  2. Dismiss the [Buyer]'s cross-action as well as its alternative cross-action.

[Position of the Buyer in the appeal]

The [Buyer] requests the court to dismiss the [Seller]'s appeal. Repeating, expanding, and supplementing its submission in the Court below, the [Buyer] asserts the following:

Due to the set-off, the claim is expired; the Court of First Instance correctly regarded as proven that the [Buyer] is entitled to its claim assigned to it by E... GmbH.

The claim which is the subject of [Buyer]'s alternative set-off, its cross-action, and alternative cross-action, is well-founded, too, as the [Seller] had agreed to take back 729 television sets, and to reimburse the price paid for them. A set-off as alleged by the [Seller] has not been agreed in this context. Rather, the [Buyer] had, also as concerns this agreement, explicitly refused the [Seller]'s claim for interest. The [Seller] had made such a claim earlier, in 1998, but then explicitly waived it at a conference on 24 June 1998 (evidence: testimony of T. R., p. 400 of the Court File). Subsequently, after the above mentioned agreement for the reversal of the transaction, the [Seller] had reverted to its claim for interest in its letter of 21 January 2000 (pp. 441 and 499 of the Court File). The [Buyer], however, had immediately objected to this claim in its letter of 31 January 2000 (pp. 442 and 500 of the Court File).

The claims the [Seller] advances in the alternative, for set-off against the [Buyer]'s cross-action, are not justified. This is true not only of the above-mentioned claim for interest, which - having regard to the parties' agreement as to the taking of delivery - at no time was substantiated, and which the [Seller] - as has been mentioned - furthermore had waived. It is true also for the claim for damages, which is completely unfounded. The television sets ordered in June 1996 had subsequently all been received by the [Buyer], partly for a big customer, and partly for its daily business. Furthermore, the [Buyer] raises the plea of ignorance as to the [Seller]'s already having bought the accessories at the time taking of delivery became difficult. Finally, nor was the claim for the purchase price substantiated. The [Seller]'s invoices of 3 October 1997 (No. 51516, p. 134 of the Court File), of 11 January 1998 (No. 50039, p. 136 of the Court File), and of 21 January 1998 (No. 50101, p. 137 of the Court File) did not relate to any orders. The invoice of 24 October 1997 (No. 51724, p. 149 of the Court File) is not addressed to the [Buyer], but to its subsidiary company, E... GmbH. Of the invoice of 17 November 1997 (No. 51889, p. 145 of the Court File), DM 1,280 had been withheld as the [Buyer] was entitled to recompense for increased costs of carriage occasioned by the delay in delivery of the [Seller] (cf. debit note of 26 November 1997, pp. 445 and 446 of the Court File).

As regards the further details of this litigation, reference is made to the memoranda exchanged between the parties, and the documents submitted for the Court File.

To ascertain the content of Italian law, the Court has obtained a written expert opinion. Reference is made to the advisory opinion of Prof. Dr. P. K. of 28 April 2003 (pp. 619 to 632 of the Court File), and to his oral explanations at the hearing of 7 May 2004 (p. 734 of the Court File).

REASONS FOR THE DECISION

The [Seller]'s appeals against the judgment of the Court of First Instance of 5 December 2001, and the supplementary judgment of 6 March 2002, are admissible. Except as regards the claim for interest asserted by the [Buyer] in its cross-action and alternative cross-action, however, the appeals are not substantiated,

A. The subject of the dispute is on, the one hand, the [Seller]'s claim for the remainder of the purchase price in the amount of DM 69,058 (35,308.79 Euro), against which the [Buyer] raises the objection of a set-off in the first alternative, and another set-off in the second alternative (B.). The Court must also adjudicate the cross-action raised by the [Buyer], in which the [Buyer] demands the payment of DM 82,597.98 (42,231.68 Euro) in interest, as well as the alternative cross-action, in which the [Buyer] demands a further amount of DM 69,058 (35,308.79 Euro) in case the [Seller]'s action is dismissed as a consequence of the set-off declared in the first alternative (C.).

B. The [Seller]'s claim is dismissed, as the [Seller] is not entitled to payment of the alleged purchase price of DM 69,058 (35,308.78 Euro).

     I. There are no longer any serious doubts as to the admissibility of the claim. There were doubts as to whether the request for relief was sufficiently determinate, as the [Seller] had made the object of its action four invoices amounting to a total of what the [Seller] said to be DM 116,216, of which it only demanded the payment of DM 69,058. When instituting such partial litigation, the claimant must specify the ratio to which it wishes to assert the individual claims (cf. German Supreme Court NJW [*] 2000, p. 3718, in particular p. 3719); failing such specification, the claim is inadmissible (cf. BGHZ [*] 11, p. 192, in particular 194 et seq.).

After the Court had pointed to this fact in its order of 6 December 2002, the [Seller] clarified that, according to [Seller]'s calculations, the only remaining payment due amounted to DM 116,236, and related to the invoice of 9 June 1998 (No. 50872, p. 17 of the Court File); of this amount, the [Seller] demands payment of DM 69,058. By this subsequent specification of the claim, the doubts as to whether that part of the action was sufficiently determinate are validly dispelled (cf. BGHZ 11, p. 192, in particular p. 194 et seq.).

     II. The claim is, however, not substantiated. The claim of DM 69,058 (35,308.79 Euro) advanced by means of a partial action has, rather, expired by the set-off of the [Buyer] in the first alternative against a counterclaim exceeding the claim.

          1. Nevertheless, according to Art. 53 CISG, the [Seller], as against the [Buyer], was entitled to the payment of DM 69,058 (35,308.79 Euro).

                a. A legal relationship between the parties consisting of contracts for the sale of goods is subject to the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (BGBl [*] 1989, part II, p. 588 et seq.; CISG). The parties' places of business are located in Italy and the Federal Republic of Germany, respectively, and thus in different Contracting States to the Convention (Arts. 1(1)(a); 100(2) CISG). The Convention entered into force, in Italy on 1 January 1988 (cf. Schlechtriem, CISG, 3rd ed., appendix I, p. 923), and in the Federal Republic of Germany on 1 January 1991 (BGBl. 1990, part II, p. 1477).

                b. Pursuant to the thus applicable Art. 53 of the CISG, the [Buyer] owed the [Seller] the purchase price for the television sets received from [Seller], which are the subject of the [Seller]'s invoices of DM 112,151 of 2 June 1998 (No. 50819); of DM 95,616 of 9 June 1998 (No. 50857); of DM 163,429 of 10 June 1998 (No. 50870); and of DM 158,454 of 10 June 1998 (No. 50872). Of the total amount of DM 529,650 of these invoices, the [Buyer], after deducting a discount of 2 percent, paid an installment of DM 402,821; it is undisputed that an amount of DM 116,216 of these invoices remains unpaid. The [Seller] was thus entitled to the amount of DM 69,058 asserted in its action; according to the [Seller]'s clarification as to the deduction of the payments made, the amount constitutes a claim for the remainder of the purchase price charged in the invoice of 9 June 1998 (No. 50872, p. 17 of the Court File).

          2. This claim has, however, been extinguished by the [Buyer]'s set-off in the first alternative with the counterclaim assigned to the [Buyer] by its subsidiary, E... GmbH, which the [Buyer] says amounts to DM 116,216 (59,420.30 Euro).

                a. The [Seller]'s objection that the set-off declared by the [Buyer] is inadmissible because German courts do not have international jurisdiction to decide this matter cannot be sustained. Rather, the opposite is the case.

                      aa. The Court of Appeal has the right to assess its international jurisdiction. There is no need to decide whether - with regard to the occasions of the oral hearings (of 14 November 2001, and 13 February 2002) on which the judgment of the Court of First Instance is based - sec. 26(5), first sentence, EGZPO [* demands that old or new Civil Procedure Code of Appeal be applied in the present appeal. Both as concerns sec. 512(a) of the Civil Procedure Code in its amended version, and as regards sec. 513(2) of the Civil Procedure Code in its amended version, it is generally acknowledged that they, despite their broad wording, do not refer to international jurisdiction (cf., with regard to the old law, BGHZ [*] 115, p. 90, in particular 91; BGHZ 134, p. 127, in particular 129 et seq. with further references; with regard to the new law, BGHZ 153, p. 82, in particular 83 et seq. with further references).

                      bb. An ascertainment of international jurisdiction - which, according to what was said above, is legitimate - results in German courts being competent also as regards the set-off claim asserted by the [Buyer].

It is true that in its earlier case-law, the Supreme Court held that where - as in the present case - the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters ["the Jurisdiction Convention"] is applicable (cf. Art. 54(1) of the Jurisdiction Convention and Art. 66 of the Council Resolution on of Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 44/2001/EC ["the Council Regulation"]), and in analogy with Art. 6(3) of the Jurisdiction Convention, no set-off can be admissible with a disputed, non-related counterclaim, as international jurisdiction is lacking (cf. Supreme Court of Germany, NJW [*] 1993, p. 2753). This decision as regards jurisdiction has, however, been overruled by the judgment of the Court of the European Communities of 13 July 1995 (NJW 1996, p. 42 et seq.), and has not been upheld by the Supreme Court, either (Supreme Court of Germany, NJW 2002, 2182, 2183). The provisions of Art. 6(3) of the Jurisdiction Convention only apply to the cross-action, and must not be applied if a respondent relies on a claim against the claimant as a mere means of defense. In this latter case, the question of international jurisdiction is to be answered in accordance with domestic law (cf. Court of the European Communities, id.; Supreme Court of Germany, NJW 2002, p. 2182, in particular 2183).

It is, however, the subject of debate how this reference of the Court of the European Communities to domestic law is to be understood. One opinion holds that, in the case of a set-off, it is generally appropriate to dispense with the requirement of international jurisdiction (cf. Roth, RIW [*] 1999, p. 819; Busse, MDR [*] 2001, p. 729), whereas another opinion holds that, as earlier and without restriction, it is necessary that there be international jurisdiction according to German international procedural law, also where the Jurisdiction Convention is applicable (cf. Wagner, IPrax 1999, p. 65, in particular p. 71 et seq., p. 76; Jayme-Kohler, IPrax 1995, p. 349; Geimer, Internationales Zivilprozessrecht, 3rd ed., No. 868 c; Bülow/Böckstiegel/Auer, Internationaler Rechtsverkehr in Zivil- und Handelssachen 1997, Art. 6 of the Jurisdiction Convention, No. 60). As yet, the Supreme Court explicitly has left this controversial question unanswered (cf. Supreme Court of Germany NJW 2002, p. 2182, in particular p. 2184 with further references as to the opinions). In the present case, it is not necessary to settle the debate. Even if one were to require international jurisdiction of German Courts in respect to the [Buyer]'s set-off with the claim assigned to it by E... GmbH, such jurisdiction would exist because sec. 33 of the Civil Procedure Code can be applied by analogy. It follows from the basic idea underlying sec. 33 of the Civil Procedure Code - which applies to cross-actions - that there always is international jurisdiction for counterclaims used in set-off where the counterclaim is connected to the claim advanced in the action, or with the defenses submitted against it (cf. Supreme Court of Germany, NJW 1993, p. 2753, in particular 2754; Supreme Court of Germany, NJW 2002, p. 2182, in particular 2184). There is such a connection where there is a legal bond between the opposite claims; the term "legal bond" is to be interpreted broadly (cf. BGHZ [*] 53, p. 166, in particular p. 168; Supreme Court of Germany, NJW 2002, p. 2182, in particular 2184; Zöller/Vollkommer, ZPO[*], 23rd ed., sec. 33 of the Civil Procedure Code, No. 15). This, for example, is to be assumed in case of contracts in the course of ongoing business relations (cf. Supreme Court of Germany NJW 2002, 2182, 2184 with further references; Musielak/Smid, ZPO, 2nd ed., 33 of the Civil Procedure Code, No. 2; Busse, MDR [*] 2001, p. 729, in particular p. 730).

On the basis of these principles, the Court of First Instance correctly affirmed that the prerequisites of sec. 33 of the Civil Procedure Code are fulfilled. For many years, the parties had been in an ongoing business relationship for the delivery of television sets; on several occasions, the subsidiary of the [Buyer], E... GmbH, too, was involved as a recipient of the [Seller]'s goods; the parties regarded the relationship as one uniform relationship of supplier and recipient. This is, among other things, apparent by the fact that the individual contracts, as far as they are known to the Court, comprised the same or at least very similar terms and conditions. It is perfectly evident that the [Seller], too, viewed, and views, the relationship in the same way: the [Seller] does, as regards its alleged counterclaims, not differentiate between claims asserted against the [Buyer], on the one hand, and against the subsidiary, on the other hand. Even in the present dispute, the [Seller], in the alternative, tries to set off against the [Buyer]'s counterclaim an outstanding claim for payment which - according to the [Seller]'s own invoice of 24 October 1997 (No. 51724, p. 149 of the Court File) - clearly is not addressed to the [Buyer], but to the [Buyer]'s subsidiary.

                b. As regards the substantive issues, the prerequisites for the [Buyer]'s set-off must be assessed in accordance with Italian law.

According to Art. 32(1)(4) of the Code of Private International Law, the law governing an obligation is also determinative for the various forms in which an obligation can be extinguished, and therefore also for set-off, whose effect, accordingly, is to be assessed pursuant to the law applicable to the main claim against which set-off is made (cf. BGHZ [*] 38, p. 254, in particular 256; Supreme Court of Germany, NJW [*] 1994, p. 1413, in particular1416; Palandt/Heldrich, BGB [*], 63rd ed., Art. 32 of the Code of Private International Law, No. 6 with further references). The law applicable to the claim for payment of the price is thus decisive in this respect, which, in the present case, means that the CISG is applicable, as well as, if the CISG is silent on some point, the applicable law determined according by the general rules of German private international law (cf. Court of Appeal Koblenz RIW [*] 1993, p. 934, in particular 937; Court of Appeal Düsseldorf, judgment of 24 April 1997 - 6 U 87/96 - with further references). Barring an agreement of the parties in accordance with Art. 27(1) of the Code of Private International Law as to the applicable law, according to Art. 28(1)(2) and (2)(2) of the Code of Private International Law the law of that state is applicable to a contract, in which the party rendering the characteristic performance has its place of business. In a contract of sale, the characteristic performance, in principle, is rendered by the person who delivers the goods (cf. Supreme Court of Germany, NJW 1997, p. 2322; Court of Appeal Düsseldorf, RIW 2001, p. 304; Palandt/Heldrich, id., Art. 28 of the Code of Private International Law, No. 8 with further references). As the [Seller], in the present case, had to deliver television sets to the [Buyer] from [Seller]'s main place of business in L... Italy, Italian law is applicable.

                c. The [Buyer]'s set-off, which is governed by Art. 1241 et seq. of the Italian Civil Code, has extinguished the [Seller]'s claim. The claim against the [Seller] assigned to the [Buyer] by E GmbH is compatible with the [Seller]'s claim, is matured, and exceeds the [Seller]'s claim; the prerequisites for so-called statutory set-off laid down in Art. 1273(1) of the Italian Civil Code are fulfilled.

                      aa. The [Buyer]'s counterclaim results from the agreement between the [Seller] and the [Buyer]'s assignor, E... GmbH, dated 26 March/17 October 1997 (pp. 35 to 38 and p. 50 of the Court File), regarding the contract No. 100082, according to which agreement the [Seller] undertook to bear the costs of warranty service and servicing in case defect rate exceeded 5 percent.

On the construction of this agreement it emerges that it does not amount to a warranty agreement in the classical sense, to which Arts. 45 et seq. and Arts. 38 and 39 CISG would be applicable. Rather, it comprises a warranty-like commitment to bear costs, which commitment relates solely to the number of occasions on which, on demand of the ultimate consumers, warranty services and servicing become necessary. This follows, not only from the fact that the agreement otherwise would not be practicable at all, but, in particular, from its ultimate goal and purpose, which was to prevent disputes between the parties as to the existence of defects, and to allocate between the parties in a reasonable manner the risk of demands for repairs by ultimate consumers, to the exclusion of statutory warranty rights as between the parties to the contract.

It is, therefore, decisive whether the contractual prerequisites are fulfilled for the [Seller]'s duty to share the costs for repair and servicing in accordance with the agreement to arise. Having regard to the submissions of both parties at the Appellate Instance, this question can be answered in the affirmative, without evidence to this point scrutinized by the Court of First Instance having any bearing on the matter.

According to the [Buyer]'s submission, upon complaints by the ultimate consumers, warranty services and servicing were carried out on 2,728 of the, in all, 38,648 television sets. These services were rendered by H. T. K. GmbH & Co. KG on assignment by E... GmbH (cf. the defect statistics sent with the letter of 17 June 1998, pp. 522 and 523 of the Court File). H. T. K. GmbH & Co. KG received a lump sum payment of DM 146 per repaired television set from the assignor. On the basis of these figures, the [Buyer] - arithmetically correctly - has arrived at a repair and service ratio of 7.06 percent, and demanded from the [Seller] the reimbursement of costs for the repair for 796 television sets (2.06 percent), amounting in total to (796 x 146 =) DM 116,216.

The [Seller] has disputed this submission in the Court of First Instance: The [Seller] alleged that 36,788 television sets have been delivered, and that none of these sets showed any defects. These submissions, which induced the Court of First Instance to review the evidence, were, however, at least partly false, as is now clear by the [Seller]'s own submission. In the appellate proceedings, the [Seller] presented pre-trial correspondence relating to this matter, viz. the [Seller]'s letter of 8 June 1998 [sic!] (pp. 524 and 525 of the Court File). In this letter, the [Seller] responded to the [Buyer]'s notice of defects of 17 June 1998 [sic!] (pp. 526 and 527 of the Court File) and announced an inquiry. There is also the [Seller]'s letter of 8 September 1998 (pages 526 and 527 of the Court File), in which the [Seller] gave notice of the results of its inquiry and specified its objections to the defect statistics transmitted by the [Buyer]. According to these letters - and contrary to the [Seller]'s submissions in the present proceedings - a total of 41,021 television sets had been delivered, and, also, the repair services on 177 television sets were said for various reasons to have been unjustified. On this basis, the [Seller] - arithmetically correctly - has arrived at a defect ratio of merely 6.22 percent, which implies that, in the [Seller]'s opinion, reimbursement could be demanded only in relation to the repair costs regarding 500 television sets (1.22 percent).

Having regard to the [Seller]'s statement of facts before trial - which for all intents and purposes must be regarded as a testimony against the [Seller] itself, and at least makes its unsubstantiated denial in the lower Court of any need for repair seem untrue and outdated - no clarification is needed as to whether the above-mentioned submission of the [Seller], or the statement of facts of the [Buyer] is correct. The [Seller]'s submission on which the decision is to be based is irrelevant as a defense against the [Buyer]'s set-off. Departing from the [Seller]'s statements as to the number of television sets delivered, and as to the defect ratio, one arrives - as the [Seller] itself has acknowledged in its letter of 8 September 1998 - that the assignor's claim for reimbursement amounts at least to (500 x DM 146 =) DM 73,000, and thus in a counterclaim exceeding the [Seller]'s claim of DM 69,058.

                      bb. The counterclaim for set-off, whose compatibility and enforceability are undoubted, is also opposed to the claim, as the claim for reimbursement has been validly assigned to the [Buyer] by E... GmbH.

                            aaa. The question of the validity of the assignment is to be judged by Italian law. [...]

[omitted]

C. Consequently, it is necessary not only to adjudicate the cross-action raised by the [Buyer], but also its alternative cross-action raised for the eventuality of exactly this scenario. By these actions, a uniform claim has been put forward for the reimbursement of the purchase price of, in total, DM 151,655.98 (77,540.47 Euro).

     I. There is no hesitation about the admissibility of the [Buyer]'s cross-action, or its alternative the cross-action, as - contrary to the opinion of the [Seller] - German courts have international jurisdiction also as regards these actions. This emerges from Art. 6(3) of the Jurisdiction Convention.

This provision requires that the cross-action be based on the same contract or statement of facts as the claim in the main action. It is true that in this regard direct reference cannot be made to the case law of German courts relating to sec. 33 of the Civil Procedure Code; this is because the Jurisdiction Convention, being an international agreement, in the interest of uniform application is to be construed autonomously within its sphere of application, i.e., with reference to itself. It does not need to be decided in the present proceedings whether the concept of common reference required for the application of Art. 6(3) of the Jurisdiction Convention is to be defined narrower than when sec. 33 of the Civil Procedure Code is applied (cf. in this regard the references in the decision of the Supreme Court of Germany of 7 November 2001, NJW [*] 2002, p. 2182, in particular p. 2184). In the light of the parties' close legal relationships - comparable to a framework contract - and of the immediate economic relation between all the claims regarding individual deliveries which resulted from the parties' ongoing business relationship, the requirement of connectivity as defined in Art. 6(3) of the Jurisdiction Convention must also be deemed to be fulfilled (cf. Supreme Court of Germany NJW 2002, 2182, 2184).

      II. The action and cross-action are also substantiated in their entirety as regards the principal claim, and to a large extent as regards the claim for interest.

          1. The [Seller] [sic! should be [Buyer]] is, in particular, entitled to payment of DM 151,655.98 (77,540.47 Euro). This claim has its legal basis in the avoidance agreement concluded by the parties, in Art. 29(1) CISG, and in an application by analogy of Art. 81(2) CISG.

According to the first-mentioned provision, a contract for the international sale of goods may be modified or terminated by the parties' agreement. It follows from this statutory provision that the rules of the UN Convention on Contracts for the International Sale of Goods also apply to the termination to a contract of sale subject to the Convention (cf. Court of Appeal München, CISG-Online, Internet-database of the University of Freiburg, <http://www.jura.uni-freiburg.de/institute/ipr1/cisg/default.htm>; OLG Hamburg IPrax 1991, p. 400; Schlechtriem, id., Art. 1 CISG, No. 19 with further references). It follows that the reversal of the contract by mutual agreement must be performed analogous to Art. 81(2)(1) CISG, i.e., that the parties may claim restitution of what has been rendered in performance of the terminated contract.

These prerequisites are fulfilled in the present case. The [Buyer] derives its claim from an agreement between the parties as to the partial reversal transaction of purchase contracts envisaging the delivery of additional television sets ordered by the [Buyer] in 1998 (cf. Appendix B 6, pp. 83-86 of the Court File). Upon notices of defect of the [Buyer], the parties, at a meeting, agreed that the [Seller] take back the television sets from these deliveries remaining at the [Buyer]'s and reimburse the purchase price. On the basis of this agreement, the [Buyer] handed back a total of 729 television sets to the [Seller], and issued to the [Seller] an invoice for DM 154,960 first on 13 December 1999, and then again on 27 January 2000 (Appendices B 7 and B 8, pp. 99 to 101 of the Court File). The [Seller], in his turn, on 30 December 1999 gave the [Buyer] a credit of account amounting to DM 154,960 (p. 147 of the Court File). All of this is undisputed between the parties.

It is merely disputed whether at the same time and in connection with the above mentioned agreement a set-off agreement had been reached, according to which the [Seller] would have the right to set off against the [Buyer]'s claim other claims the [Seller] asserts, amounting to DM 152,951 in total.

It is irrelevant how an agreement such as alleged by the [Seller] ought to be legally qualified: it could be a contract sui generic, or a settlement within the meaning of Art. 1965 of the Italian Civil Code [*], or a set-off by mutual agreement within the meaning of Art. 1352 of the Italian Civil Code. It is irrelevant because the burden of proving that such an agreement has actually been reached is on the [Seller], and he has not succeeded in this respect.

Already the [Seller]'s submissions on this point are partly contradictory and incomplete. In the lower instance, the [Seller] generally alleged that the [Buyer]'s above mentioned returning of the goods merely was allowed "under the condition" that the reimbursement of the price be set-off against claims previously advanced by the [Seller]. The crediting of the account of the [Buyer] by the [Seller] on 30 December 1999 (p. 147 of the Court File) had taken place "only for reasons of orderly proceedings", in order the [Buyer], "at the time of the set-off, be given something concrete in return for the claim it set off". Unsubstantiated as this submission may be, it at least emerges that the whole agreement, including the set-off, is said to have been concluded before the account was credited - i.e., in 1999. In the appellate proceedings, however, the [Seller] - after the lack of substance in its submission and the inadequacy of its evidence had been pointed out in the judgment appealed against, and in the order of the Court of 6 September 2002 - has presented the issue differently, alleging that it during the course of the discussions had made clear "in 1998, and at the beginning of 2000" that it would agree to reimbursing the purchase price of DM 151,655.98 only provided the [Seller]'s counterclaims of DM 152,951 were to be set-off. None of the particulars as to the relevant period of time, however, can be correct. As concerns the statement that the alleged proviso had been notified to the [Buyer] during the year 1998, this is manifestly untrue as, at that time, neither any claim for reimbursement by the [Buyer] of the relevant amount could have been an issue - some of the television sets returned by the [Buyer] were delivered only at the beginning of 1999 (cf. Appendix B 6, pp. 83 to 86 of the Court File) -, nor had the alleged claims of the [Seller] come into existence (cf. invoice of the [Seller] of 16 July 1999, Appendix A 12, p. 121 of the Court File). As concerns the statement that the proviso was made "at the beginning of 2000", it is contradicted by the fact that the [Seller] had already credited the account of the [Buyer] on 30 December 1999, which credit logically requires that the agreement, regardless of the content it may have had, had already been entered into at that point of time.

Weighing these documented event against the overall context, everything indicates that the parties' agreement - that the purchase price be reimbursed against the return of the goods - on which the [Buyer] bases its cross-action, was concluded at the end of 1999. This was also maintained by the [Buyer] through the entire proceedings, and by the [Seller] in the Court below. If one deems this to have been proven, however, it follows, on the other hand, that the [Seller] really did not, and could not by the evidence it has submitted, prove its allegation that a set-off agreement also was entered into at the same occasion.

On the one hand, [Seller] has led its unsubstantiated submission in evidence by questioning the witnesses W. N. and C. F., without, however, stating exactly which facts were supposed to be in the witnesses' knowledge, and why these witnesses in particular should be able to testify as to the content of the alleged set-off agreement. The Court explicitly pointed to this fact in its order of 6 September 2002. The [Seller] responded that the witnesses had been notified about the agreements entered into by the managing director of the [Seller] and one of the managing directors of the [Buyer] ("Mister C."). Whatever this may mean, however, it cannot be concluded from this submission that the witnesses were present at the relevant conversation, and could testify from to their own experience as to its content.

When heard before the Court on 7 May 2004, the managing director of the [Seller], however, stated in addition that the witness C. F. - during the relevant telephone conversation between himself and the managing director of the [Buyer] - had been present in the office from which conversation was conducted. Upon further inquiry by the Court, however, the [Seller]'s managing director was unable to specify whether the witness had followed the telephone conversation in detail, and therefore would be able to speak from her own knowledge to as to the progress and content of the conversation. In particular, he was unable to tell whether the witness F. had heard any remarks and/or explanations by the other side of the conversation. The [Seller] answered the question by saying that there is a room communication telephone system in the [Seller]'s office; however, he claimed not to know whether it was used during the telephone conversation. On the basis of these extraordinarily imprecise and vague statements by the managing director of the [Seller], which are foundation of the [Seller] supplementary pleading, it is impossible to ascertain whether the witness F. would actually be able testify on the basis of her own knowledge as to the content of the telephone conversation, and especially whether she would be able to confirm that a set-off agreement had been concluded as alleged.

However, if neither the [Seller]'s witness C. F., nor its witness N. - the latter of whom, as was confirmed by the [Seller]'s managing director, had not been present at any of the conversations - were able to make their own observations as to the content of the relevant conversation between the parties' managing directors, and as to the set-off agreement said to have been reached on that occasion, their having been called - and the [Seller]'s reliance on their statements was explicitly maintained - can only be interpreted to mean that they should testify in the matter only as to hearsay. The statement of these witnesses can, therefore, only be deemed to amount to circumstantial evidence (cf. Supreme Court of Germany NJW [*] 1984, p. 2447, in particular 2448). In such a case, the evidence can only be regarded as relevant to the extent the circumstance proven enables one to make logical or other factual inferences - of a strengthening or weakening kind - as to the main fact to be proven by the evidence. The possible inference must be capable of being seriously entertained from the outset for the Court's hearing of the evidence to be justified (cf. BGHZ [*] 53, 245, 261; Supreme Court of Germany NJW 1984, p. 2447, in particular 2448; Supreme Court of Germany NJW 1991, p. 1894; Supreme Court of Germany NJW 1993, p. 1391, in particular p. 1392).

For several reasons, these requirements are not fulfilled in the present case. Already as regards the question of when, how, from whom, and in which manner the witnesses should have been informed about the alleged set-off agreement, the [Seller] has not been sufficiently specific. Precisely the answer to this question, however, is necessary to assess the circumstantial evidence, and to be able to judge whether it allows any conclusion as to decisive facts that would be sufficiently certain. Even if, however, one were to assume in favor of the [Seller] that, as submitted, the witnesses were informed by their managing director shortly after the event, it would, under the circumstances, not change anything about this fact not allowing any reasonably certain inference as to the conclusion of any set-off agreement. Apart from the fact that the identical statement of the facts by one party and its legal representative to a third party - as in the present proceedings - generally is of low evidentiary value - at least generally does exceeding the statement of one party - any surplus evidentiary effect which may result from the presentation of the events to a third party in close temporal proximity to their happening is, in the present case, unambiguously weakened and contradicted by the behavior of the [Seller] and its manager, respectively. The conclusion that a set-off agreement was reached is contradicted by the fact that the [Seller], on 30 December 1999, presented the [Buyer] with a credit of account (p. 147 of the Court File) for the amount to be reimbursed for the return of the goods without at all mentioning the alleged set-off agreement in this context. Even if this fact - as the [Seller] explains - may be explained by the account merely being credited "for reasons of orderly proceedings", or for reasons of accounting, this does not apply to the [Seller]'s subsequent letter of 21 January 2000 (pp. 441 and 499 of the Court File). In this letter, the [Seller] asserts counterclaims allegedly encompassed by the previously concluded set-off agreement, mentioning in the opening of the letter the crediting of the [Buyer]'s account, and - according to the translation of the letter - proceeding:

"Here follow our ideas as to how we could settle the whole matter with you:

"We still have open accounts of the following amounts:

..."

The wording of this letter, unequivocally and without leaving room for misunderstandings, clarifies that at that time - even from the [Seller]'s point of view - there was no set-off agreement; on the contrary, that the [Seller] in this letter suggested a set-off, and thus the [Buyer] an offer to that effect; the offer, however, was declined by the [Buyer] in its letter of 31 January 2000 (pp. 442 and 500 of the Court File). The content of this correspondence allows the certain logical conclusion that there no set-off agreement had been concluded in the earlier conversation between the parties' managing directors, the date of which conversation must be December 1999. A possible evidentiary effect of the statement by the [Seller]'s managing director to the witnesses called by the [Seller] is thus unequivocally confuted, and not - as would have been necessary - conclusively proven.

The [Seller]'s further motion to admit the testimony of its managing director about the issue cannot be admitted. According to sec. 447 of the Civil Procedure Code, such a motion for the interrogation of the party bearing the burden of proof is generally only admissible provided the other party consents to it. However, no such consent has been forthcoming on the part of the [Buyer]. Neither it is feasible that the Court use its discretion to order an interrogation of the party on its own motion in accordance with sec. 448 of the Civil Procedure Code. A prerequisite among others for such a motion is that the outcome of the proceedings, and the evidence that may have been presented, do not suffice to convince the Court of a decision. The prerequisite, however, can only be deemed to be fulfilled if the Court's overall assessment of the proceedings and the evidence so far presented has led to the disputed allegation being probable to a certain, if not to a very large extent (so-called initial proof, cf. Supreme Court of Germany, NJW 1989, p. 3222, in particular p. 3223; Supreme Court of Germany NJW 1990, p. 1721, in particular 1722; Supreme Court of Germany, NJW 2003, p. 3636). After an evaluation of the statements of both parties, however, there cannot be said to be any such probability that the [Seller]'s allegation as to an oral set-off agreement is true. On the contrary, the course of events evidenced by the exchange of letters mentioned, and the [Seller]'s own conduct in December 1999 and January 2000, militates against the correctness of the [Seller]'s allegation. Reference is made to the above remarks. Finally, the procedural situation in its present aspect, with particular regard to the [Seller]'s burden of proof, is not such that an interrogation of the parties, or at least a hearing of the [Seller]'s managing director, seems to be necessary to ensure procedural equality of aims according to sec. 141 of the Civil Procedure Code (cf. European Court of Human Rights, NJW 1995, p. 1413; Constitutional Court of Germany NJW 2001, p. 2531, in particular p. 2532).

In order to achieve additional clarity, however, the Court has nevertheless heard again the managing directors of both parties as to the content of the relevant conversation, and has confronted them with the appropriate questions and queries. On that occasion, the managing director of the [Buyer] denied that the question of setting off the [Seller]'s counterclaims had been raised during the telephone conversation, whereas managing director of the [Seller] stated that he certainly had brought up the question of set-off. He did affirm in general that the relevant agreement had been reached, but was at first evasive as to details. After repeated questions, and after having been confronted with the fact that his subsequent letter of 21 January 2000 speaks against set-off agreement having been reached prior to the letter, he admitted that he, too, thought that a set-off agreement was to be finally concluded only upon the [Buyer]'s positive response to his letter. If this is correct, however, it can be regarded as undisputed that no legally binding set-off agreement had been concluded, at least during the telephone conversation in question, but that, also in the opinion of the managing director of the [Seller], a binding agreement was intended to be made in writing only later. As outlined above, however, no such written agreement was ever concluded because the [Buyer], by letter of 31 January 2000, declined the [Seller]'s offer of 21 January 2000.

In conclusion, the partly unsubstantiated, party contradictory, and partly incoherent submissions of the [Seller] as to the events, as well as its equally flawed submissions in evidence, do not necessitate that evidence be taken concerning the matter in dispute. As regards the [Seller] allegation that a set-off agreement has been reached between the parties, it has, in effect, not submitted enough evidence. This will be to the detriment of the [Seller] who, according to the general rules on the apportionment of the burden of proof bears the burden of proof for its allegation.

          2. Nor can the [Seller] be successful in its opposition to the claim for payment advanced in the [Buyer]'s cross-action and alternative cross-cross. The opposition rests on a set-off based on a total of eight counterclaims; this objection was raised only in the appellate proceedings. The alternative set-offs, the prerequisites as to admissibility of each of which have to be assessed separately (cf. Supreme Court of Germany, NJW 2000, p. 143), are partly inadmissible, and partly unfounded.

                a. To the extent the [Seller] bases its set-off on the alleged counterclaim of DM 2,552 (1,304.82 Euro), the objection is not admissible.

As the [Seller] raises its objection - that there has been a set-off - in relation to the entire claim advanced by the cross-action and the alternative cross-action, the admissibility of the objection, according to sec. 26(5) of the EGZPO, must be assessed in accordance with the Civil Procedure Code in its version before 31 December 2001, viz. in accordance with sec. 530(2) of the Civil Procedure Code in its earlier wording, at least in relation to that part of the main claim which is the subject of the judgment of 5 December 2001, or DM 81,597.98 (41,720.39 Euro).

According to sec. 530(2) of the Civil Procedure Code in its earlier wording, the objection may only be admitted if the opposing party consents, or if the Court deems objection relevant for the proceedings (as for the application of the provision to a cross-action, cf. Supreme Court of Germany FamRZ 1990, p. 975, in particular 979). Neither is the case here. The [Seller] [sic! should be [Buyer]] has explicitly refused to accept a set-off. Nor is there any relevance in the aforementioned sense. The decisive aspect is that of procedural economy (cf. Supreme Court of Germany NJW 1977, p. 49): the preponderant issue is not laches, but, rather, the parties' justified interest in a decision about the set-off, weighed against the interest that proceedings mature for judgment be concluded (cf. BGHZ [*] 17, 124, 126; BGHZ 33, 398, 400; Supreme Court of Germany NJW 2000, p. 143, in particular 144, with further references). From this point of view, admitting the objection that there had been a set-off objection is not apposite, in particular if by its admission a dispute otherwise mature for judgment were to be burdened by completely new issues requiring further inquiry into the facts - be it by way of further substantiation, or by way of admitting evidence on a large scale (cf. BGHZ 5, 371, 373).

In the present case, weighing the interests of both sides against each other leads to the set-off with the [Seller]'s purported counterclaim of DM 2,552 not being admissible. To be sure, after the advice of the Court on 6 September 2002 that the [Seller]'s submission as then existing was incoherent, the [Seller] conclusively bases the claim it intends to set off - and which emerges from invoice No. 51516 of 3 October 1997 (p. 134 of the Court File) - on the fact that the [Buyer] on the Internationale Funkausstellung in Berlin in September 1997 "bought and took away" the television sets subject to the invoice. This broad submission of the [Seller], which it led in evidence by the testimony of its employee N., is, however, still not sufficiently substantiated. The [Seller] does not say a word about the submission of the [Buyer], who has previously refuted the [Seller]'s allegations in substance and pleaded the [Seller] that on the Funkausstellung merely made available for the purpose of exhibiting a small number of television sets, of which some were in the wrong color (cf. letter of 31 March 1998, pp. 433 to 436 and pp. 493 to 496 of the Court File). Further substantiation by the [Seller] would thus be required before evidence could be heard about on the - as may be pointed out, new - issue in dispute. This would result in such extensive procedural delay that - weighing the interests of both parties against each other and also having regard to the amount of the principal and the counterclaim - such cannot be asked of the [Buyer].

                b. To the extent the [Seller] still bases its set-off on its alleged counterclaim of DM 1,280 (654.45 Euro), its objection is admissible, but not substantiated.

                      aa. The admissibility of the objection, too, for the reasons given (cf. section C. II.2.a. of the reasons for the present decision) is governed by sec. 530(2) of the Civil Procedure Code in its old version, according to which a set-off asserted in the Court of Appeal may be admissible if it seems pertinent. In this respect, there is pertinence in the aforementioned sense, as the proceedings are mature for judgment also as regards the counterclaim, and as the interest of the parties in having a judgment about the set-off, on the one hand, and in the dispute being finally settled, on the other, are not contradictory to each other.

Nor are there any relevant doubts as to the international jurisdiction of German Courts, given the ongoing business relationship between the parties (cf. section B.II.2.a. of the reasons for the present decision).

                      bb. The [Seller]'s set-off, however, is not substantiated.

The substantive prerequisites for the set-off are governed by Italian law. This follows from Art. 32(1) No. 4 of the Code of Private International Law, according to which the law to be applied is the statute of the principal claim against which set-off is declared, and therefore, in the present case, the law applicable to the claim in the cross-action (cf. BGHZ [*] 38, p. 254, in particular 256; BGH [*] NJW [*] 1994, p. 1413, in particular 1416). With regard to the claim for payment in the cross-action, and to the claim for payment in the alternative cross-action, the CISG - as has been explained - is to be applied; in as far as the Convention does not contain any applicable provision, the pointed out by the general provisions of German private international law is applicable as a supplement. The agreement which is the object of the [Buyer]'s claim concerns the part termination and reversal of contracts of sale. Due to this interrelation, the law governing the (terminated) contract of sale is to be applied to the obligations arising from the reversal of the transaction. According to Art. 28(1)(1) and (2)(2) of the Code of Private International Law, this engenders the application of Italian law, as the performance characteristic for the contract of sale, the delivery of the goods, was originally performed by the [Seller], who has its place of business in L..., Italy.

As the [Seller] does not own the claim it wants to set off, its set-off - which is to be assessed in accordance with Art. 1241 et seq. of the Italian Civil Code - did not, in the present case, according to Arts. 1243, 1242 of the Italian Civil Code lead to the partial extinction of the claim advanced in the cross-action.

The [Seller] derives its counterclaim from a contract for the delivery of television sets, concluded between the parties in 1997 and the subject of the [Seller]'s invoice No. 51889 of 17 November 1997 (p. 135 of the Court File). Except for the remaining amount in dispute of DM 1,280, this invoice has been paid for by the [Buyer]. Consequently, the [Seller], according to Art. 53 CISG, still had the right to demand payment of the aforementioned amount due for this delivery. However, according to Arts. 1243(1) and 1242(1) of the Italian Civil Code, this claim became extinct upon the set-off with a valid claim declared by the [Buyer] already before trial, and maintained by it in the present dispute. The [Buyer] had an equivalent and matured counterclaim against the [Seller] to the amount of DM 1,280 (654.45 Euro). This follows from Art. 45(1)(b) CISG and Art. 74 CISG.

According to these provisions, the buyer may claim damages if the seller fails to perform any of his obligations under the contract. After the query by the Court in its order of 6 September 2002, the [Buyer], making reference to its pre-trial letters of 14 November 1997 (pp. 447 and 448 and pp. 490 to 492 of the Court File) and of 31 March 1998 (pp. 433 to 436 of the Court File) substantiated in that there were considerable delays in the [Seller]'s deliveries under the contract in question, as the delivery scheduled for week 43 and 44 of the year 1997 had been delayed, in part until week 46 and in part even until week 47. Consequently, the [Buyer] incurred additional costs of the amount submitted, as it had to organize and perform extra deliveries in order to deliver the goods to its customers as soon as possible, and in order to prevent imminent penalties. The [Seller] did not contest any of this submission, so that it must be deemed conceded according to sec. 138(3) of the Civil Procedure Code.

It follows that the [Seller] did not comply with its obligation according to Art. 33(b) CISG to deliver the goods within the period stipulated by the contract. Pursuant to Art. 45(1)(b) CISG and Art. 74 CISG, such delay engenders a claim for damages, which is not dependent of any reminder to the party in default (cf. von Caemmerer/Schlechtriem/Huber, CISG, 3rd ed., Art. 33 CISG No. 2 with further references). The [Buyer] coherently, if little substantiated, calculated the damage it incurred. As the [Seller] has not objected to the calculation, however, further substantiation is unnecessary.

                c. To the extent the [Seller] further bases its set-off on its alleged counterclaim of DM 700 (357.90 Euro) pursuant to the invoice No. 50039 of 12 January 1998 (p. 136 of the Court File), its objection is admissible, as it is mature for judgment, but it, too, is unsubstantiated.

Apart from presenting the aforementioned invoice, the [Seller] has given no indication as to the factual circumstances on which it bases its claim. The [Buyer] explicitly complained about this in its memorandum of 28 October 2002, and pointed out that it could not offer any explanation about this "completely incomprehensible invoice". Nevertheless, the [Seller] did not take the opportunity to explain the invoice in any way, or to present conclusive arguments as to its claim.

                d. To the extent the [Seller] further bases its set-off its alleged claim of DM 210 (107.37 Euro), its objection cannot be admitted, as it is not relevant within the meaning of sec. 530(2) of the Civil Procedure Code in its old wording applied in the present case.

The [Seller] bases its counterclaim, which is the subject of its invoice No. 50101 of 21 January 1998 (p. 137 of the Court File), on a contract for the delivery of packing cartons and photos allegedly concluded in the beginning of 1998. The [Buyer] has denied that such an order, or delivery, existed. This dispute, which was put in issue only in the proceedings before the Court of Appeal, could only be decided after extensive new evidence has been heard. Even in this respect, a substantiation on the part of the [Seller] would be necessary, both as regards the conclusion of the contract of sale and as regards the alleged delivery, before [Seller]' motion to hear in evidence its employee R. F., living in Italy, could be complied with by arranging for the hearing of evidence abroad. Considering the extent of procedural delay that would be caused elucidating the fact relevant to the counterclaim, extremely small in comparison to the claim in the cross-action, the interest of a speedy settlement of the present dispute clearly preponderates.

                e. The same is true with regard to the additional set-off by the [Seller], by which it asserts a counterclaim of DM 500 (255.65 Euro) which is the subject of its invoice No. 51056 of 16 July 1998 (p. 138 of the Court File).

The [Seller] derives this claim from the alleged delivery of a "sample" in mid-1999, and relies also in relation to this claim on the testimony of its employee R. F. This new dispute it could, in a similar manner as has been described above, only be finally decided after further extensive inquiry into the facts. Proceeding in this manner, however, does not, to this Court and for the aforementioned reasons, appear pertinent within the meaning of sec. 530(2) of the Civil Procedure Code in its old version.

                f. To the extent the [Seller], furthermore, wished to set off an alleged counterclaim of DM 9,600 (4,908.40 Euro), its objection must, according to sec. 530(2) of the Civil Procedure Code in its old version, be admitted as being mature for decision; it is, however, unfounded.

Pursuant to Art. 32(1) No. 4 of the Code of Private International Law, for the reasons mentioned above (cf. section C.II.2.b.bb of the reasons for the present decision), Italian law is applicable to the set-off. According to Art. 1243 of the Italian Civil Code, however, only mutual claims may be set-off against each other. This mutuality is lacking in the present case, as already emerges from the [Seller]'s own submission. The [Seller] alleges as its counterclaim an the purchase price claim of DM 9,600 stipulated in the contract of sale underlying its invoice No. 51724 of 2 January 1998 (24 October 1997, p. 139 of the Court File). As emerges from the address on the invoice, however, the [Seller]'s purported claim is not against the [Buyer], but against its subsidiary, E... GmbH.

                g. Nor can the [Seller]'s set-off be successful to the extent the [Seller] bases it on an alleged claim for maturity interest of DM 105,024 (53,697.92 Euro).

                      aa. The admissibility also of this set-off is also to be adjudicated in accordance with sec. 530(2) of the Civil Procedure Code in its old version - and not according to sec. 533 of the Civil Procedure Code in its amended version - even though the counterclaim exceeds the claim advance in the cross-action claim and awarded to the [Buyer] in the judgment of 5 December 2001. The counterclaim thus also extends to the claim advanced in the alternative cross-cross, which latter claim was awarded in the supplementary judgment of the Court of First Instance on 6 March 2002. According to Art. 26(5) EGZPO, new law governing appellate procedures, and thus sec. 533 of the Civil Procedure Code, ought actually to be applied to this claim. As the admissibility of setting off the same counterclaim in the same appellate proceedings for reasons of legal logic only can be decided in a uniform manner, the admissibility has to be assessed according to old appellate law, which is more favorable to the person setting-off and which contains more lenient requirements for set-off than does sec. 533 of the Civil Procedure Code in its version since 1 January 2002.

Applying sec. 530(2) of the Civil Procedure Code in its old version, the set-off is admissible, as the counterclaim is mature for judgment, and it therefore appears pertinent that the set-off be asserted in the present proceedings.

                      bb. Nor this set-off, which - according to Art. 32(1) No. 4 of the Code of Private International Law - substantively is to be adjudicated in accordance with Italian law (cf. section C.II.2.b.bb of the reasons for present decision), is, however, founded. It does not lead to the partial extinction of the [Buyer]'s claim asserted in the cross-action and the alternative cross-action, as the [Seller] does not have any claim for maturity interest which could be set off.

In principle, the claim can follow from Art. 78 CISG, according to which a party to an international contract of sale who fails to pay the purchase price in due time owes interest to the other party. These prerequisites are, however, not fulfilled in the present case.

The [Seller] bases the alleged claim for interest on the [Buyer]'s not taking delivery of the goods in a timely manner as regards eight contracts of sale in 1995 and 1996, and therefore not paying the price on the due date, either. However, the view of the [Seller] is not correct.

According to Art. 58(1) CISG, if the purchase price does not fall due at a specific time, it becomes due at that point in time when the seller places the goods at the buyer's disposal in accordance with the contract or the CISG. In the contracts in dispute in the present case (pp. 366 to 376 and pp. 569 to 584 of the Court File), the time of payment is determined as "5 days after delivery". Thus, the maturity of the individual payments is linked to the actual deliveries. According to the [Seller]'s own submission, however, these deliveries were not made at the dates stipulated in the contract, from which onward the [Seller] demands interest. During the period for which the [Seller] demands interest, rather, the goods were still in its possession. Under these circumstances, the [Buyer]'s obligations to pay the purchase price could only have become due at the time at which the [Buyer] - as asserted by the [Seller] - had failed to take delivery as required by Art. 60(a) CISG, and, in particular, had failed to cooperate as required; in such a case, the buyer cannot prevent the maturity ensuing upon actual delivery by omitting the cooperation necessary and required (cf. von Caemmerer/Schlechtriem/Huber, id., Art. 32 CISG, No. 11).

Such a failure to take delivery on the part of the [Buyer], however, cannot be established. After the [Seller]'s having distanced itself from its original submission that the [Buyer] had failed to take delivery - which distancing came about after the Senate advised the [Seller] -, it is now undisputed between the parties that the [Seller] in all cases was bound to carry the goods to the [Buyer] - a fact which, with regard to some of the contracts, also follows directly from their wording ("arrival date"). In such a sale pursuant to Art. 31(1) first half-sentence CISG, the goods are deemed to be at the buyer's disposal within the meaning of Art. 58(1) CISG when the seller proffers them to the buyer at the agreed destination. Only if the buyer still does not take delivery of the goods, does he breach his obligation to take delivery in accordance with Art. 60(a) CISG, with the consequence that the purchase price becomes due at the time of the seller's offer (cf. von Caemmerer/Schlechtriem/Huber, id., Art. 58 CISG, No. 5 with further reference). In the present case, there is no such offer on the part of the [Seller].

The [Seller] now submits that it did not deliver the goods because the [Buyer] did not request them in accordance with the contract. However, no obligation of the [Buyer] to request goods can be established. The contracts in question were undisputedly concluded subject to the terms and conditions which the [Buyer] formulated in its orders (pp. 366 to 376 and pp. 569 to 584 of the Court File). There is nothing in these orders to suggest that the deliveries were to be performed only upon the [Buyer]'s request. Quite to the contrary, all orders specify delivery dates or periods for delivery, without even hinting at a request of the [Buyer] as an additional requirement as to the [Buyer]'s cooperation. It does indeed appear from the submission of both parties, as well as from the documents submitted, and especially from example of an exchange of letters in 1996 (Appendix B 17, pp. 530 to 545 of the Court File) filed by the [Seller], that the parties not always adhered minutely to the delivery dates agreed in the contract. Rather, in each individual case, they reached an understanding as to when and how the goods should be send. In some cases, certain deliveries or parts of deliveries may have been delayed. One cannot, however, infer any contractual obligation of the [Buyer] to request the goods from such this manner of performing the contract, as it either was agreed, or at least tolerated by the [Seller].

Where, as in the present case, one cannot establish an obligation for the [Buyer] to request the goods, the principle remains that payment becomes due only when the goods have actually been placed at the [Buyer]'s disposal. No maturity interest could accrue in the meantime.

                  h. To the extent, finally, the [Seller] bases its set-off on an alleged claim for damages of DM 33,385 (17,069.48 Euro) its objection, according to sec. 530(2) of the Civil Procedure Code, again cannot to admitted as it lacks relevance.

This counterclaim - which is specified in the [Seller]'s letter of 14 October 1998 (pp. 141, 561 and 562 of the Court File) - is based by the [Seller] on the fact that the [Buyer], by its letters of 25 August 1998 and 2 September 1998 (Appendices B 22 and B 23, pp. 557 to 560 of the Court File), cancelled the contract concluded in June/July 1998 for the sale of in total 14,080 television sets (cf. Appendices B 18 to B 21, pp. 546 to 556 of the Court File). This cancellation is said to be largely unjustified, except as regards 1,280 sets. As the [Seller] by then had already acquired certain accessories (CRT-stickers, manuals, and cardboard packaging), it had incurred damages of the asserted amount. The [Buyer] disputes this submission by denying, on the one hand, that the [Seller] had already acquired the objects mentioned and, on the other hand, by asserting that it, despite the initial difficulties to sell the sets, eventually did take delivery of the television sets, partly in bulk (8,960 sets), and partly in the course of its daily business (5,120 sets) (cf. the [Buyer]'s letter of 14 October 1998, pp. 433 and 501 of the Court File). Also as regards this disputed claim, the matter requires further investigation, with both parties first needing to substantiate their respective submissions. Despite the advice of the Court in its order of 6 September 2002, the [Seller] has not elaborated and specified its submissions as to causality and the amount of the alleged damage, nor has the [Buyer] detailed in the course of which transactions it claims to finally have taken delivery of the television sets in question. Only after such elaboration of the respective submissions could the conclusiveness and relevance of the submissions of both sides be assessed and it be decided, whether the [Seller]'s motion to hear its witnesses C. F. and R. F., living in Italy, and the [Buyer]'s motion to hear its witness T. R. for evidence to the contrary would need to be granted. Given the extent of the investigation that would still be necessary, the interest that the dispute, with in all other respects is mature for judgment, be settled speedily preponderates.

          3. The claim for reimbursement, advanced by the [Buyer] in its cross-action and alternative cross-action, and granted in full, according to Art. 84(1) CISG, runs with interest from the date on which the price was paid. The [Buyer] may therefore in any case demand interest for the period from 4 March 2000 onward (cf. sec. 308 of the Civil Procedure Code).

As regards the rate of interest demanded, however, the claim for interest is not fully substantiated.

As the CISG does not contain any provision as to the amount of interest, Italian law will be applied to supplement the Convention in this respect. It does not need to be decided, however, whether the supplementing law - regarding, e.g., the interest claims pursuant to Art. 78 CISG - has to be determined by the conflict of laws provisions of German international private law, or whether, considering the spirit and aim of Art. 84 CISG, the interest rate usually applicable at the place of business of the seller bound to refund the price ought to apply - in the present case, that would be Italy (regarding the different opinions cf. von Caemmerer/Schlechtriem/Leser, id., Art. 84 CISG, No. 13 with further references). Applying of the law of the contract according to Art. 28(1)(1) and (2)(2) of the Code of Private International Law, Italian law applies in both cases, as has been explained above (cf. section B.II.2.b.bb. of the reasons for the present decision).

[omitted]

[T]he [Buyer] is thus only entitled to interest calculated in accordance with the rates mentioned in the substantive parts of the present judgment.

D. The decision as to is based on sec. 92(2) of the Civil Procedure Code.

[omitted]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant of Italy is referred to as [Seller] and the Defendant-Appellee of Germany is referred to as [Buyer].

Translator's note on abbreviations and foreign terms: BGBl = Bundesgesetzblatt [German Law Gazette]; BGHZ = Entscheidungen des Bundesgerichtshofes in Zivilsachen [Official Reporter of the Federal Supreme Court of Germany on Civil Matters]; MDR = Monatschrift für Deutsches Recht [German law journal]; NJW = Neue Juristische Wochenschrift [German law journal]; RIW = Recht der Internationalen Wirtschaft [German law journal].

** Tobias Koppitz holds a degree in law. With the team of Humboldt University, Berlin, he won the Frédéric Eisemann Award for third place in the 8th Willem C. Vis International Commercial Arbitration Moot 2000-2001. He was coach to the team of Humboldt University Berlin in the 9th Willem C. Vis Moot 2001-2002.

*** Jakob Heidbrink, LL.D. M..Jru. (Oxon), Lecturer in Law at Jönköping International Business School.

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