Germany 29 September 2006 District Court Hof (Twine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060929g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 1 H O 17/06
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Different state (defendant)
GOODS INVOLVED: Twine
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
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/1401.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
29 September 2006 [1 H O 17/06]
Translation [*] by Veit Konrad [**]
Edited by Jan Henning Berg [***]
JUDGMENT BY DEFAULT (VERSÄUMNISURTEIL)
FACTS OF THE CASE
1. [Seller] delivered twine to [Buyer] in the following installments:
On 28 September 2004, [Buyer] ordered 15 tons of "Nm 50/1"- Cotton 100 Percent for € 2.17 per kilogram. On 29 September 2004, [Seller] delivered 15,083.10 kilograms to [Buyer] and invoiced € 32,730.33 (15,083.10 kg * € 2.17).
On 22 November 2004, [Buyer] ordered 15 tons of "Nm 50/1"- Cotton 100 Percent for the price of € 2.02 per kilogram. The delivery of 14,976.60 kilograms took place on 23 November 2004. [Seller] invoiced € 30,252.73 (14,976.60 kg * € 2.02).
On 22 November, [Buyer] ordered another 15 tons of "Nm 50/1"- Cotton 100 Percent for € 1.95 per kilogram. On 31 January 2005 [Seller] delivered 14,802.40 kilograms and invoiced € 28,864.68 (14,802.40 kg * € 1.95).
On 26 January 2005, [Buyer] ordered another 15 tons for the price of € 1.92 per kilogram. On 14 February 2005 [Seller] delivered 14,932.40 kilograms and invoiced € 28,670.21 (14,932.40 kg * € 1.92).
In total, [Seller] invoiced € 120,730.33 for the four installment deliveries. So far [Buyer] only paid € 17,730.33.
By letter of 22 June 2005, [Seller]'s lawyer reminded [Buyer] of the open amount of € 102,787.62, which was yet to be paid. [Buyer], however, did not react.
2. In its claim, delivered on 6 July 2006, [Seller] asks for payment of € 102,787.62 plus interest of eight percentage points above the normal interest rate (Basiszins) since 1 July 2005. In case of a trial by written proceedings (Schriftliches Verfahren), [Seller] pleads for a judgment by default (Versäumnisurteil) if [Buyer] fails to submit its defense within the time fixed by the court.
3. On 13 March 2006, the Court ordered a trial by written proceedings (Schriftliches Verfahren). The court set a strict statutory time limit (Notfrist) of four weeks, starting from the time when [Seller]'s claim had been delivered to [Buyer] in which [Buyer] had to communicate in writing its intention to defend against the claim. By statute, no extension can be granted for this deadline. The court also notified [Buyer], that a default of this deadline, would result in a judgment by default granting [Seller]'s claim.
Since the complaint note was delivered to [Buyer] on 6 July 2006, [Buyer] remained in silence. [Buyer] neither communicated its intention to defend itself against the claim, nor did [Buyer] respond to any of the facts submitted by [Seller].
I. The [Seller]'s claim is admissible. Pursuant to Art. 28(1) and (2) of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch; EGBGB), the transactions between the parties are governed by German law. As [Seller]'s claim concerns a contract for the sale of goods between parties whose places of business are in different States, the CISG applies. Under Art. 57(1)(a) CISG, the buyer must pay the price to the seller at the seller's place of business, if not stipulated otherwise. Thus, the place of performance for [Buyer] is Hof (in Bavaria, Germany). § 29(1) of the German Code of Civil Procedure (Zivilprozessordnung; ZPO) and §§ 23 No. 1, 71(1), 95(1) No. 1 of the German Constitution of the Courts Act (Gerichtsverfassungsgesetz; GVG) define the Commercial Division (Kammer für Handelssachen) of the District Court (Landgericht) of Hof as the proper venue for the case.
According to § 276(1), sentence 1, and (2), and § 331(3) of the German Code of Civil Procedure (Zivilprozessordnung; ZPO) the court, following [Seller]'s pleading, has to render a decision without hearing the case. Hereby, the court presumes all submissions of the plaintiff [Seller] as being admitted by the absent other party, i.e., [Buyer] (§ 331(1) of the German Code of Civil Procedure (Zivilprozessordnung; ZPO)). According to § 349(2) Nr. 5 of the German Code of Civil Procedure (Zivilprozessordnung; ZPO), the presiding judge of the Commercial Division renders the decision.
II. [Buyer] is liable to pay the price for the delivered twine under Arts. 53 and 62 CISG. Of this purchase price, an amount of € 102,787.62 has not yet been paid.
The interest due is determined by Art. 78 CISG and § 286(1), sentence 1, and § 288(2) of the German Civil Code (Bürgerliches Gesetzbuch; BGB).
The decision on the costs relies on § 91 of the German Code of Civil Procedure (Zivilprozessordnung; ZPO). As regards provisional enforceability, the decision is based on § 708 No. 2 of the German Code of Civil Procedure (Zivilprozessordnung; ZPO).
* All translations should be verified by cross-checking against the original text. For purposes of this presentation, the Plaintiff is referred to as [Seller]; the Defendant is referred to as [Buyer].
** Veit Konrad has studied law at Humboldt University, Berlin since 1999. During 2001-2002 he spent a year at Queen Mary College, University of London, as an Erasmus student.
*** 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.Go to Case Table of Contents