Germany 26 October 2004 District Court Saarbrücken (Fuses and fuse brackets case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/041026g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 7II O 19/04
CASE HISTORY: Unavailable
SELLER'S COUNTRY: [-]
BUYER'S COUNTRY: [-]
GOODS INVOLVED: Fuses and fuse brackets
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
38A [Buyer's obligation to examine goods: time for examining goods]; 39A2 [Requirement to notify seller of lack of conformity (quantity delivered): buyer must notify seller within reasonable time]
38A [Buyer's obligation to examine goods: time for examining goods];
39A2 [Requirement to notify seller of lack of conformity (quantity delivered): buyer must notify seller within reasonable time]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): cisg-online.ch website <http://www.cisg-online.ch/cisg/urteile/1043.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
26 October 2004 [7II O 19/04]
Translation [*] by Linus Meyer [**]
Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor [***]
SUMMARY OF THE DECISION
1. The Defendant [Buyer] is ordered to pay 15,916.80 EURO plus interest 8% above the base level since 1 May 2003.
2. This judgment is provisionally enforceable. For provisional enforcement, securities of 110 % of the amount to be enforced have to be provided.
3. The rest of the decision remains reserved until the main judgment is made.
The Plaintiff [Seller] delivered fuses and fuse holders to the [Buyer]. The [Seller] requests payment of the invoices.
On 18 March 2003, the [Buyer] ordered 50,000 fuse holders, 100,000 20 ampere-fuses and 100,000 7.5 ampere-fuses. [Buyer] explicitly agreed to delivery by installments. By fax the [Seller] confirmed on the same day that it could at first deliver the following quantities on 19 March: 20,000 fuse holders, 40,000 20 ampere-fuses, and 40,000 7.5 ampere fuses. The [Buyer] confirmed the announced delivery of smaller numbers. On 19 March 2003, the [Seller] delivered the amounts stated above to the [Buyer] by DHL International. The [Seller] sent an invoice to the [Buyer] on 19 March 2003, requesting the payment of 5,004.00 EURO ([Seller]'s exhibit no. 5, p. 22 of the record).
By fax of 24 March 2003, the [Buyer] ordered 30,000 fuse holders, 60,000 20 ampere-fuses and 20,000 7.5 ampere-fuses. [Buyer] asked for the quickest delivery possible by DHL International on the next day. The [Seller] delivered on 25 March 2003 and sent an invoice requesting the payment of 6,504.00 EURO ([Seller]'s exhibit no. 9, p. 26 of the record).
By the same fax of 24 March 2003, the [Buyer] ordered a further 100,000 20 ampere fuses, 40,000 flat 7.5 ampere-fuses and 50,000 fuse holders. Delivery was made by a forwarding agency on 28 March 2003.
Another order by the [Buyer] for 100,000 flat 7.5 ampere-fuses and 10,000 fuses is in dispute. These fuses were handed over to the forwarding agency Sittam S.p.A. - according to a delivery note of 28 March 2004. The [Buyer] was billed 11,908.80 EURO on 28 March 2003 ([Seller]'s exhibit no. 10, p. 27 of the record) for the goods delivered according to the order in dispute as well as for the goods delivered according to the order by fax on 24 March 2003 which is not in dispute.
The [Seller] requests payment of these three invoices, a total amount of 23,416.80 EURO.
SUBMISSIONS BY THE PARTIES
The [Seller] has requested the Court to order the [Buyer] to pay 23,416.80 EURO plus interest at 8% above the base level since 1 May 2003.
The [Buyer] has requested the Court to dismiss the claim.
The [Buyer] denies the order of 100,000 flat 7.5 ampere-fuses and 10,000 15 ampere-fuses of 24 March 2003. [Buyer] further contests the completeness of the deliveries, pleading lack of knowledge. [Buyer] argues that it had not signed the cargo receipts. It also argues that 40-50% of the fuse holders had been faulty and therefore unusable for the [Buyer]. The [Buyer] submits that it had given notice of the faults to the [Seller]'s employee Baffi by telephone two days after the delivery and that it also had sent a written notice.
The [Buyer] relies on a right of retention until the [Seller] had complied with its obligation to deliver faultless goods. The [Buyer] explicitly reserved the right to claim damages based on the delivery of faulty fuse holders.
The [Seller] has argued that it had complied with its duty to deliver by handing over the goods to the first carrier. The cargo receipts had been signed by the first carrier. Due to the nature of this transaction -- which had been requested by the Buyer -- it had been impossible to have the cargo receipts signed by the [Buyer] itself. Therefore, no written notice of defects had existed. The [Seller] also alleges that the defects had never been communicated by telephone to its employee Baffi. And the [Seller] denies the existence of any defects and argues that the [Buyer]'s argument was not substantiated.
For the rest of the parties' arguments, reference is made to the memoranda and the enclosures.
REASONS FOR THE DECISION
1. Entering a partial judgment is admissible according to § 301(2) ZPO [*] and is also appropriate in this case. Even if a uniform claim is assumed, a court can decide on a quantitative part which can be separated and clearly individualized (BGH [*] NJW [*] 2001, 138). The separation can be done according to the amount or for certain matters (Zoeller-Vollkommer, 24th ed., § 301 para. 4). The limit to this is only a possible lack of determination of the partial decision. This danger is not present here as the [Buyer] only argues that a certain portion of the fuse-holders (at most 50%) had been faulty. The other arguments raised by the [Buyer] against the reason for and the amount of the claim are definitely dealt with in this partial decision.
2. The [Seller]'s claim is justified in the amount of 15,916.80 EURO, as the [Buyer] has not alleged that it has any warranty rights and because the [Buyer]'s arguments against the last order of 24 March 2003 (100,000 flat fuses and 10,000 15 ampere-fuses) as well as against the completeness of the deliveries are unsuccessful for legal reasons.
a) With respect to the last order in dispute, the [Seller] has referred to the "summary of our orders by dates of 24 March 2003" by the [Buyer], a fax of the same day ([Seller]'s exhibit no. 11, p. 43 of the record). With respect to this document, the [Buyer]'s argument that it had to contest the order pleading lack of knowledge is not substantiated. The [Buyer] cannot contest facts by pleading lack of knowledge if it has positive knowledge of those facts. Such knowledge can be inferred from the exhibit mentioned above. Therefore, this order has to be treated as not in dispute according to § 138 ZPO because it has not been contested sufficiently.
b) The [Seller] has complied with its duty to deliver (Art. 30 CISG) by handing over the goods to the first carrier according to Art. 31 CISG.
c) The [Buyer] cannot rely on a non-conformity caused by the delivery of too small a quantity of goods as well. Art. 35 defines the requirements for conformity of goods with a contract. The goods have to be delivered in the number required by the contract (Magnus, in: Staudinger CISG, Art. 36 para. 7). Conformity is thereby linked to the time when the risk passes. The passing of risk is governed by Art. 67 CISG. According to Art. 67(1) CISG, the relevant time is when the goods are handed over to the first carrier for shipping to the [Buyer]. Although it is not clear whether all goods ordered and billed were really handed over to the first carrier (as the carrier did of course not check the large number of fuses and fuse-holders in closed containers and likely also could not check it), all rights based on a lack of conformity under Arts. 38, 39 CISG require a notice of non-conformity within reasonable time after examining the goods with respect to their quantity. The [Buyer] has not alleged that it gave notice of too small a quantity of goods delivered. Consequently, it has to be assumed that an order for the amounts billed was placed by the [Buyer] and that the goods were completely delivered by the [Seller]. The [Buyer] has only alleged that it has further rights due to the non-conformity of 40-50% of the fuse-holders. Therefore, it is not in dispute that the fuses of different kinds and at least 50% of the fuse holders were delivered in conformity with the contract. Accordingly, the claim is justified in the following amount:
The [Seller] has requested the sum of the three invoices, 23,416.80 EURO. The amount billed for fuse holders in these invoices is 15,000.00 EURO. A non-conformity can therefore at most affect 15,000.00 EURO : 2 = 7,500.00 EURO.
The [Seller]'s claim is therefore in any event justified in the amount of 23,416.80 EURO - 7,500.00 EURO = 15,916.80 EURO (Arts. 61, 62 CISG).
The judgment concerning interest results from Art. 78 CISG in connection with §§ 286, 288 BGB [*].
The judgment about provisional enforceability is based on § 709 ZPO.
The rest of the decision remains reserved until the final judgment. With respect to the part of the claim that was not dealt with in this decision an evidence order is made.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff is referred to as [Seller]; the Defendant is referred to as [Buyer]. Amounts in European currency are indicated as [EURO].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGH = Bundesgerichtshof [German Federal Supreme Court]; NJW = Neue Juristische Wochenschrift [German law journal]; ZP0 = Zivilprozessordnung [German Code on Civil Procedure].
** Linus Meyer is a law student at the University of Osnabrück, Germany.
*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.Go to Case Table of Contents