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CISG CASE PRESENTATION

Switzerland 25 January 2005 Commercial Court Aargau (Floor tiles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050125s1.html]

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

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Case identification

DATE OF DECISION: 20050125 (25 January 2005)

JURISDICTION: Switzerland

TRIBUNAL: Handelsgericht [Commercial Court] Aargau

JUDGE(S): A. Knecht (Vizepräsident); P. Heer, K. Schmid, M. Werder, K. Wissman; M. Tuchschmid (Gerichtsschreiber)

CASE NUMBER/DOCKET NUMBER: OR.2004.00055

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Floor tiles


Case headnote

Reproduced from Internationales Handelsrecht [1/2006] 34

"As the interest rate is not determined by the CISG, recourse is to be hand to the national law which applies to the contract in accordance with the conflict of law rules of the forum state."

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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: Article 78 [Also cited: Articles 3 ; 53 ; 54 ; 58 ; 59 ]

Classification of issues using UNCITRAL classification code numbers:

78A ; 78B [Interest on delay in receiving price or any other sum in arrears; Rate of interest]

Descriptors: Interest

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1091.pdf>; also available at Internationales Handelsrecht [1/2006] 34-35

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Commercial Court (Handelsgericht) Aargau

25 January 2005 [OR.2004.00055]

Translation [*] by Jan Henning Berg [**]

JUDGMENT

  1. Allowing Plaintiff [Seller]'s action in part, Defendant [Buyer] is ordered to pay [Seller] EUR 8,884.53 plus default interest for the time until 31 December 2004 in the amount of EUR 1,461.38. For the time after 1 January 2005, [Seller]'s claim for EUR 8,884.53 is subject to default interest according to the respective applicable interest rate (8% above the prime lending rate pursuant to § 288(2) BGB [*]), with 15% being the maximum possible rate.

  2. The remainder of [Seller]'s action is dismissed.

  3. The legal fees, consisting of court fees of Sfr. 800 plus attorneys' fees and expenses of Sfr. 206 (total sum Sfr. 1,006) are to be borne by [Buyer].

  4. [Buyer] is further ordered to compensate [Seller] for its own costs in the amount of Sfr. 3,941, which has been approved of by this Court.

  5. This judgment will be served on [Seller]'s legal representative and on [Buyer].

FACTS

[Seller] is a private limited liability company (GmbH) established under German law with its seat in Bad Säckingen, Germany. It deals inter alia in construction materials, tiles and construction components.

[Buyer] is owner of a personal undertaking with its seat in Spreitenbach, Switzerland. The undertaking provides cleaning, sanitarian and gardening services and various indoor services.

On 24 January 2003, [Seller] delivered to [Buyer] 53,328 sqm of floor tiles, type "Marca Corona". Furthermore, [Seller] paid custom duties for [Buyer]. In this respect, [Seller] invoiced EUR 1,202.14, EUR 174.40 and EUR 98.05 by letters dated 3 and 14 February 2003.

On 4 February 2003, [Seller]'s business partner W. H., established in Rangendingen-Bietenhausen, delivered and assembled 64.5 sqm of laminate, 24 beech socket beads, 3 intersection rails and 20 sqm of subsonic noise insulation on the basis of an order submitted by [Buyer]. [Seller] issued an invoice to [Buyer] on 14 February 2003, requesting an amount of EUR 1,696.50.

On 17 February 2003, [Seller] delivered to [Buyer] 44.92 sqm oak laminate, type "Hornitex" and 3.96 sqm walnut laminate, type "Hornitex", for which the former claimed EUR 448.44 by invoice of 14 March 2003. A separate invoice was issued on 14 March 2003 in respect of EUR 45 for loading and delivery of the laminate.

By invoice dated 23 April 2003, [Seller] claimed EUR 5,220 for return, transport and re-stocking of the laminate, type "Hornitex."

On 6 June 2003, a payment summons was served on [Buyer] concerning amounts of Sfr. 13,438.74 plus 15% interest since 12 February 2003, Sfr. 99.27 plus 15% interest since 12 February 2003 and Sfr. 37.80 by the Spreitenbach prosecution office (file no. 35753, payment summons of 19 May 2003). [Buyer] filed objections against the summons on 11 June 2003.

On 5 November 2003, an initial mediation round was held before the justice of the peace of the district Wettingen II, Bergdietikon, which was attended only by [Seller]. By letter dated 12 May 2004. [Seller] once again approached the latter justice of the peace and a second mediation round was scheduled for 1 July 2004. [Buyer] did not attend this hearing, as well.

With its action filed on 17 September 2004, [Seller] has requested the District Court (Bezirksgericht) Baden to order [Buyer] to pay:

  1. Sfr. 13,538 plus interest of 15% since 12 February 2003, Sfr. 37.80 for legal reminding fees, Sfr. 136 for costs of prosecution, Sfr. 200 as costs of the proceedings before the justice of the peace (case docket 04/043) and another compensation of Sfr. 400 in relation to the proceedings before the justice of the peace (case dockets 03/101 and 04/043); and

  2. all costs of the proceedings.

Reference is directed to the above summary of the factual background to [Seller]'s action.

On 21 September 2004, the District Court (Bezirksgericht) Baden referred the case to the Commercial Court (Handelsgericht) Aargau.

By order of 23 September, the Commercial Court allowed [Buyer] a time limit of 20 days to submit a defense in writing.

The action was served on [Buyer] by the Regional Police Spreitenbach on 28 October 2004. [Buyer] however failed to submit a written response within the time limit. [Buyer] did not collect the writ containing the subsequent order of 23 November under which [Buyer] was allowed another period of grace of 10 days for submission of a response and [Buyer] was also informed that, if no response would be given, [Buyer] would be subjected to the consequences resulting from default according to § 189(1) ZPO [*].

The case was referred for consideration by the Commercial Court upon an order dated 21 December 2004.

REASONING OF THE COURT

1. Since the parties to the proceedings are domiciled in different countries, the present case has an international dimension. The Court needs to consider issues of international jurisdiction and applicable law, which are determined by Swiss law or any overriding international treaties (Art. 1(2) IPRG [*]).

      1.1 The Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 16 September 1988 applies. The present case constitutes a civil and commercial matter in terms of Art. 1(1) Lugano Convention and both Switzerland and Germany are Contracting States to the Convention. Since [Buyer] is domiciled in Switzerland, Art. 2(1) Lugano Convention provides that Swiss courts are competent to consider the legal dispute.

The Lugano Convention merely governs international jurisdiction. The (domestic) territorial jurisdiction is governed by national law. According to Art. 112(1) IPRG, the courts at the [Buyer]'s domicile take territorial jurisdiction for claims which are based on contract. Since [Buyer] is domiciled in Spreitenbach, territorial jurisdiction of the Commercial Court (Handelsgericht) Aargau has been established.

      1.2 Subject-matter jurisdiction of the Commercial Court follows from § 404(1)(a) ZPO [*].

      1.3 The invoices of 3, 11 and 14 February 2003, 14 March 2003 and 17 April 2004 are concerned with purchases of laminate and floor tiles. The contracts on which these invoices have been based are governed by the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG; SR [*] 0.221.211.1), because the parties have their places of business are in different Contracting States (Art. 1(1)(a) CISG) and because Art. 3(1) CISG provides that contracts for the supply of goods to be manufactured or produced fall within the scope of the CISG, as well. The payment of custom duties and re-stocking of the goods by [Seller] in the context of these transactions may be considered an ancillary performance under the contract (Art. 3(2) CISG). Consequently, the CISG applies to this case.

2. [Buyer] did not collect the letter containing the court order dated 23 November 2004 from the post office. Nevertheless, the order is deemed to be served on [Buyer] with legal effect, because it had known of the pending proceedings. The writ containing [Seller]'s action had been served on [Buyer] by the police (BGE [*] 127 I 34 E.2a/aa and 123 III 493 E.1 with references). In the same manner, the prior announcement of a possible judgment in default according to § 189(1) ZPO [*], which was contained in the order, is legally effective. Consequently, the present case proceeds in accordance with that announcement on the basis of information provided in [Seller]'s action and a judgment will be given without a main hearing.

3.  3.1 Given the current state of proceedings, evidence concerning the submission of facts in the action must be provided by [Seller] only insofar as the judge has doubts as to their correctness (§ 200 ZPO). This case does not present a basis for any such doubts.

[Seller] has proved with the documents submitted that it had made deliveries of floor tiles and laminate for [Buyer] in the amount claimed and that in one case it had the materials assembled, as well. The documents show that [Seller] has paid custom duties for [Buyer] in relation to the deliveries of goods. Furthermore, [Buyer] has used [Seller]'s storage space. The sum of claims which have been invoiced by [Seller] amounts to EUR 8,884.53.

      3.2 By way of its first claim. [Seller] requests payment of Sfr. 13,538. However, [Seller]'s factual assertions lead to the different amount of EUR 8,884.53. [Seller] itself had converted this amount from Euros into Swiss francs. Since a right to litigate in an alternative currency is provided by Art. 84(2) OR [*] only for the debtor but not for the creditor, the latter is not entitled to claim a sum in domestic currency where the debt has arisen in a foreign currency (cf. Peter Gauch/Walter R. Schluep/Jörg Schmid/Heinz Rey, Schweizerisches Obligationenrecht, Allgemeiner Teil, 2 vols., 8th ed., Zurich 2003, para. 2345). Therefore, [Seller]'s claim is to be reinterpreted as a claim for EUR 8,884.53.

[Buyer] is obliged under Art. 53 CISG to pay [Seller] the amount of EUR 8,884.53 arising from the contracts which were concluded between the parties.

4. [Seller] claims default interest of 15% since 12 February 2003. The reasoning of the Court in this regard is as follows.

      4.1 The purchase price is due without the need for any request or compliance with any formality by the time the seller places the goods at the buyer's disposal and the buyer has had the opportunity to examine the goods, according to Art. 58(1) and (3) in conjunction with Art. 59 CISG. The claims in the amount of EUR 1,202.14, EUR 174.40, EUR 98.05 and EUR 1,696.50 (total EUR 3,171.09) have thus become mature prior to 12 February 2003. The claims of EUR 448.44 and EUR 45 (total EUR 493.44) became mature only with delivery on 17 February 2003. Finally, the claim of EUR 5,220 became mature on 23 April 2003.

Under the CISG, even the mere failure to make payment by the date of maturity constitutes a breach of contract with the effect that a claim for interest arises immediately on that date (Schlechtriem, Internationales UN-Kaufrecht, Tübingen 1996, para. 319). Default interest is generally owed from the date of maturity. [Seller] claims default interest in relation to EUR 3,171.09 merely since 12 February 2003. The Commercial Court (Handelsgericht) is bound to this submission under the principle of party control of private law proceedings (Dispositionsmaxime), § 75(2) ZPO [*]. Default interest concerning the amount of EUR 493.44 has become due only on 17 February 2003 and concerning the amount of EUR 5,220 only on 23 April 2003.

      4.2 The applicable interest rate is not governed by the CISG itself. The question must be decided according to the domestic law applicable under the rules of private international law of the forum (BGE [*] 4C.197/1998 of 28 October 1998, E.6 with further references = <http://www.cisg-online.ch> Case No. 413; Schlechtriem/Bacher, Kommentar zum Einheitlichen UN-Kaufrecht, 3rd ed., Munich 2000, Art. 78 paras. 27 and 32. Pursuant to Art. 118(1) IPRG [*] the Hague Convention on the Law Applicable to International Sales of Goods of 15 June 1955 applies to sales of movable and tangible property. Art. 3(1) of the Hague Convention provides that in the absence of a determination by the parties of the applicable law, their contract will be governed by the domestic law of that state where the seller has his habitual residence at the time when he receives the purchase order. Since [Seller] is domiciled in Germany, the interest rate is determined according to German law.

The relevant interest rate for commercial transactions is generally determined by § 352 HGB [*]. This provision applies in all cases in which the parties to a contract are businessmen and the contract has been concluded in the execution of their businesses or in commercial dealings (§ 343(1) HGB). This is the case at hand.

Under German law, the parties are free to reach an agreement on a default interest rate which may also be higher than the statutory rate. However, the parties have not concluded any such agreement in the present case. Therefore, the general provision under German law on the relevant default interest rate must be considered.

The statutory provision governing default interest has been amended twice in Germany throughout the recent years. The Commercial Code in its original version of 1900 provided for a static default interest rate of 5% (§ 352(1)(1) HGB). With effect as of 1 May 2000 - after entering into force of the Law on Expedited Payment of Monetary Claims (Gesetz zur Beschleunigung fälliger Zahlungen) - the default interest rate has been calculated dynamically and was set at 5% above the prime lending rate (§ 288(1)(1) BGB [*], § 352(1)(1) HGB: "except for default interest"). Since the Law on the Modernization of the Law of Obligations (Gesetz zur Modernisierung des Schuldrechts) has become legally effective as of 1 January 2002, the default interest rate now amounts to 8% above the respective prime lending rate (§ 288(2) BGB). The prime lending rate is amended on 1 January and 1 July of each year to reflect the changes which have occurred in the meantime in relation to its reference parameter. The relevant reference parameter is the rate of interest of the most recent main refinancing transaction executed by the European Central Bank prior to the first calendar day of the relevant term (§ 247(2) BGB; cf. also the chart of current interest rates, available at <http://www.bundesbank.de>). The prime lending rate was 1.97% for the first term of 2003 (which determines a default interest rate for commercial transactions of 9.97%), 1.22% for the second term of 2003 (default interest rate: 9.22%), 1.14% for the first term of 2004 (default interest rate: 9.14%) and 1.13% for the second term of 2004 (default interest rate: 9.13%).

      4.3 Consequently, the following claims for default interest have arisen in the present proceedings until 31 December 2004 concerning [Seller]'s claims:

            4.3.1 [Seller]'s claim for EUR 3,171.09 concerning the time from 12 February 2003 until 31 December 2004:

Term Days Interest rate Default interest due
12 February 2003 - 30 June 2003 139 9.97% EUR 120.3998
1 July 2003 - 31 December 2003 184 9.22% EUR 147.3888
1 January 2004 - 30 June 2004 182 9.14% EUR 144.1269
1 July 2004 - 31 December 2004 184 9.13% EUR 145.5513

The total amount of default interest which is due in relation to this claim between 12 February 2003 and 31 December 2004: EUR 557.4668.

            4.3.2 [Seller]'s claim for EUR 493.44 concerning the time from 17 February 2003 until 31 December 2004:

Term Days Interest rate Default interest due
17 February 2003 - 30 June 2003 134 9.97% EUR 18.0610
1 July 2003 - 31 December 2003 184 9.22% EUR 22.9346
1 January 2004 - 30 June 2004 182 9.14% EUR 22.4270
1 July 2004 - 31 December 2004 184 9.13% EUR 22.6486

The total amount of default interest which is due in relation to this claim between 17 February 2003 and 31 December 2004: EUR 86.0711.

            4.3.3 [Seller]'s claim for EUR 5,220 concerning the time from 23 April 2003 until 31 December 2004:

Term Days Interest rate Default interest due
23 April 2003 - 30 June 2003 69 9.97% EUR 98.3834
1 July 2003 - 31 December 2003 184 9.22% EUR 242.6199
1 January 2004 - 30 June 2004 182 9.14% EUR 237.2504
1 July 2004 - 31 December 2004 184 9.13% EUR 239.5951

The total amount of default interest which is due in relation to this claim between 23 April 2003 and 31 December 2004: EUR 817.8489.

            4.3.4 The sum of the above interest claims amounts to a total default interest claim until 31 December 2004 of EUR 1,461.38. For the time after 1 January 2005, the unsettled claim of EUR 8,884.53 is subject to the respective applicable interest rate (8% above the prime lending rate pursuant to § 288(2) BGB). In accordance with [Seller]'s request, the interest rate is capped at 15% (§ 75(2) ZPO).

5. [Seller] further claims compensation for a legal reminding notice in the amount of Sfr. 37.80. In this respect, however, the action has not been sufficiently substantiated, lacks any proof and is thus to be dismissed as unfounded.

6. [Seller] finally demands compensation of the costs of proceedings before the justice of the peace in the amount of Sfr. 600 plus additional prosecution costs of Sfr. 136.

According to Art. 68(2) SchKG [*], [Seller] is entitled to claim prosecution costs prior to any payment by [Buyer], which means that such costs must be claimed in separate prosecution proceedings. [Seller]'s action is to be dismissed in this regard.

Pursuant to § 156 ZPO, costs of proceedings before the justice of the peace are to be claimed in the subsequent proceedings. § 31(a) VKD [*] provides that they form part of the costs of litigation incurred by the parties (Parteikosten). The costs of the mediation round of 1 July 2004 in the amount of Sfr. 200 and [Seller]'s further costs of participation at the hearing of Sfr. 200 will thus be compensated in the context of reimbursement of general costs incurred by the party. However, [Seller] cannot be indemnified for the costs which it incurred concerning the mediation hearing of 5 November 2003 in the amount of Sfr. 200, because it failed to proceed with its action within the time limit of three months since service of the relevant writ. The action is to be dismissed in this respect.

7. [Buyer] is obliged to bear the costs of the present proceedings (§ 112(1) and (3) ZPO).


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as [Seller] and Defendant of Switzerland is referred to as [Buyer]. Amounts in the uniform European currency (Euro) are indicated as [EUR]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGE = Bundesgerichtsentscheidung [Reported decisions of the Swiss Federal Supreme Court]; HGB = Handelsgesetzbuch [German Commercial Code]; IPRG = Bundesgesetz über das Internationale Privatrecht [Swiss Code on the Conflict of Laws]; OR = Obligationenrecht [Swiss Code on the Law of Obligations]; SchKG = Bundesgesetz über Schuldbetreibung und Konkurs [Swiss Law on Debt Enforcement and Bankruptcy]; SR = Systematische Sammlung des Bundesrechts [Official database of Swiss federal legislation]; VKD = Verfahrenskostendekret [Swiss decree on the costs of judicial proceedings]; ZPO = Zivilprozessordnung [Code on Civil Procedure of the Swiss Canton of Aargau].

** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.

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