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CISG CASE PRESENTATION

Germany 18 October 2005 Appellate Court Bamberg (Furnishings case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/051018g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20051018 (18 October 2005)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 3 U 135/05

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

CASE HISTORY: 1st instance (default judgment) Landgericht Bamberg 11 July 2001 [affirmed in major part]; 2d instance Landgericht Bamberg 13 April 2005 [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Furnishings


Classification of issues present

APPLICATION OF CISG: Yes, however, CISG matters were not at issue in this proceeding

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles [-]

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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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/1403.pdf>

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) Bamberg

18 October 2005 [3 U 135/05]

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

Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor
[***]

AWARD

  1. The Court intends to dismiss [Buyer]'s appeal against the judgment rendered by the District Court (Landgericht) Bamberg on 13 April 2005 for the reasons set forth below, in accordance with 522(2) ZPO [*].

  2. [Buyer] is permitted to submit its written objection to this resolution until 2 December 2005.

FACTS

The District Court (Landgericht) Bamberg upheld the judgment by default rendered on 11 July 2001 to a preponderant part. Only the interest claim with regard to the claim for redemption of the loan was dismissed and, in that respect, a target date for maturity was set by the Court at eight weeks after the judgment would have become legally effective.

POSITIONS OF THE PARTIES

Position of [Buyer]

Initially, [Buyer]'s appeal was merely focused on challenging the District Court's international jurisdiction.The Court has already submitted its opinion by way of its resolution of 2 August 2005. [Buyer] had not brought forward any further legal objections.

However, [Buyer] is now -- and beyond the time limit for the substantiation of the appeal -- arguing that the First Instance judgment should be repealed because [Seller] had not filed a proper request.

[Seller] had sued [Buyer] for payment although there had not existed any mature claim under Italian law. The District Court would have had to indicate that it intended to interpret the procedural requests in a way that a period for maturity of eight weeks would be requested. By doing so, [Buyer] alleges that [Buyer]'s right to a fair hearing was violated.

Position of [Seller]

[Seller] objects to these allegations.

REASONING OF THE COURT

The Court holds that the challenged judgment has been rendered properly under aspects of law. By way of exception, the Court so indicates by virtue of this resolution in order to give [Buyer] the opportunity to withdraw its appeal in order to be able to prevent unnecessary costs of the proceedings.

1. [Admissibility]

The fact that [Buyer] challenges the judgment after expiration of the time limit for substantiation of the appeal with new legal reasons does not lead to its inadmissibility. Appellate assertions after expiration of the time limit set out in 520(2) ZPO [*] are only prohibited under 530, 296(1) and (4) ZPO if they threaten to delay proceedings (Musielak/Ball, ZPO, 4th ed., 530 para. 4; Zöller/Gummer/Heßler, ZPO 25th ed., 530 para. 2).

As [Buyer] is merely objecting to a purported wrong application of law, this is not the case.

2. [No justification for Buyer's objections]

However, [Buyer]'s argument is not justified on the merits.

      a) First, it must be pointed out that the objection merely refers to the claim for redemption of the loan, yet not to the claim for the purchase price in the amount of EUR 12,450.50.

      b) There was no need for any particular reference by the Court concerning the maturity of the loan, respectively the intended determination of a target date.

After receipt of the legal opinion by the appointed expert on 19 May 2004, [Seller] has explicitly requested during the oral hearing of 28 July 2004 (session protocol p. 8 = sheet no. 371) that "the Court should determine a target date for payment in the future". This request can also be found in the facts of the appealed judgment. This request merely constitutes an (alternative) limitation of its procedural request to which [Buyer] had not responded, similar to a case of transition of an unlimited request for performance to an action for future performance (for such a case cf. Zöller/Greger, ZPO, 25th ed., 257 para. 7.

The District Court has properly affirmed [Seller]'s alternative request.

The District Court was also permitted to do so according to the expert opinion (p. 24 of his opinion of 19 May 2004). In that respect, the District Court has intensively dealt with the issue whether or not such determination exceeds the functional scope of German courts and has finally properly affirmed that it falls within the scope (p. 18 of the appealed judgment).

Consequently, the appeal is dismissed even in consideration of the additional submissions made by [Buyer].


FOOTNOTES

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

Translator's note on other abbreviations: ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück.

*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.

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Pace Law School Institute of International Commercial Law - Last updated June 22, 2007
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