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CISG CASE PRESENTATION

Germany 15 September 2004 Appellate Court Köln (Ink jet printers case) [detailed abstract available]
[Cite as: http://cisgw3.law.pace.edu/cases/040915g1.html]

Primary source(s) of information for case presentation: Ulrich Schroeter

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Case identification

DATE OF DECISION: 20040915 (15 September 2004)

JURISDICTION: Germany

TRIBUNAL: OLG Köln [OLG = Oberlandesgericht = Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 16 W 27/04

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

CASE HISTORY: 1st instance LG Köln (3 O 256/04) 8 June 2004

SELLER'S COUNTRY: Germany

BUYER'S COUNTRY: France

GOODS INVOLVED: Ink jet printers

Case abstract

GERMANY: Oberlandesgericht Köln [16 W 27/04], 15 September 2004

Case abstract provided by dr. Andrea Vincze [*]

The parties concluded a sale of goods contract for the purchase of ink jet printers for industrial use. The appellant is the [Buyer], the opposing party is the [Seller].

The [Buyer] obtained a preliminarily enforceable judgment from the Tribunal de commerce de Bourg en Bresse in which the Court ordered the [Seller] to repay the partial payment of Euro 38,873.78 along with the statutory interests upon it, to take back 36 printers, to pay Euro 5,000 in damages and Euro in 3,000 legal costs. The Court rejected the [Seller]'s counterclaim in which the [Seller] requested the Court to order the [Buyer] to pay the remaining contract price.

The [Seller] appealed that judgment before the Cour d'appel de Lyon.

The Landgericht [District Court] Köln ordered enforcement of [Seller]'s claim based on [Seller]'s specified payment requests and raised the statutory interest to 8 percent above the basic interest rate. [Buyer] objected to this order in its fax of 12 July 2004. [Buyer] appealed this enforcement order. [Buyer] alleged that [Seller]'s original appeal was justified only with regard to the request for interest and stated that specification of the statutory interest does not harmonize with either French or German law.

For its part, the [Seller] requested a stay of the proceedings and, as a means of assistance, requested the Court to order the [Buyer] to post security with regard to the enforcement. Concerning the latter, the [Seller] alleged, referring to the reasoning of its appeal before the Cour d'appel de Lyon, that its appeal will be successful with great certainty.

The [Buyer] requested suspension of the enforcement order and asked the Court to find that French statutory interest is applicable. The Court held that the request for interest cannot be declared enforceable because the ruling of the Tribunal de commerce de Bourg en Bresse is not precise enough in this respect.

[...]

The fact that the Court based the merits of the claim on the CISG is of no particular meaning since, although the CISG is part of French and German national law, Art. 78 CISG governs the issue of interest only in general. Concerning the rate of interest it is disputed whether the statutory gap in the CISG shall be filled by reference to the general principles of the CISG (as can be derived from CISG Art. 7(2), first part), or pursuant to CISG Art. 7(2), second part, by applying the applicable gap-filling national law. If, based on the reference to statutory interest, it can be substantiated that the Tribunal de commerce applied the latter rule, then it is not clear in the judgment which national law it intended to apply: French rules on interest or German law in connection with the rules of private international law. Therefore, the request for interest cannot be decided upon precisely.

[...]

The parties do not dispute the facts of the case which are the same as those applied by the Tribunal de commerce de Bourg en Bresse. The [Buyer] states that the Court interpreted those facts in a wrong way. However, based on the applicable principles, conditions of the suspension are not fulfilled in the instant case. [...]

The fact that the Tribunal de commerce based its decision upon the rules of the CISG concerning defective performance, is not exactly without any failures. Situations like this one are not rare where businesspeople and enterprises enter into business transactions by applying general framework agreements. A non-commercial framework agreement like a commission contract or, in the instant case, a development contract on the side of the [Buyer] does not necessarily preclude judging the business transaction as a commercial transaction, meaning that in international business law the CISG would be applicable. Whether the conditions for applying Arts. 25 and 49(1)(a) CISG are present can only be determined by taking into account all details and circumstances of the case. Based on the instant facts and the dispute between the parties, the outcome of the case, if it was pending, could only be open. The decision of the Tribunal de commerce de Bourg en Bresse is not "obviously wrong". Therefore it remains open whether in such a case suspension of the proceedings can come into question independently of the above-mentioned principles.

[...]

FOOTNOTES

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

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