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CISG CASE PRESENTATION

Germany 10 November 2006 Appellate Court Dresden (Meat case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/061110g1.html]

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

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Case identification

DATE OF DECISION: 20061110 (10 November 2006)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 9 U 0982/06

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

CASE HISTORY: 1st instance Landgericht Dresden 28 April 2006

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Meat


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 14 ; 15 ; 18 ; 23 ; 24 [Also cited: Articles 16 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

14A [Criteria for an offer (basic criterion): intention to be bound in case of acceptance];

15A [When offer becomes effective: effective on reaching offeree];

18A [Acceptance of offer (time and manner): criteria for acceptance];

24E [Time when communication "reaches" addressee: definition of "reaches"]

Descriptors: Offers ; Acceptance of offer ; Burden of proof ; Reaches, definition of

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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/1625.pdf>

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

Appellate Court (Oberlandesgericht) Dresden

27 September 2006 [9 U 0982/06]

10 November 2006 [9 U 0982/06]

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

INTERIM DECISION OF 27 SEPTEMBER 2006

The Appellate Court draws the parties' attention to its intention to dismiss [Buyer]'s appeal according to 522(2) ZPO [*] because the appeal has no expectation to succeed, the dispute lacks fundamental importance and the development of the law or the achievement of a unitary jurisprudence do not require a judgment to be made by the Appellate Court.

[Buyer] is granted opportunity to make any statements within two weeks. The Appellate Court advises [Buyer] to withdraw the appeal in order to avoid further costs.

FACTS AND CASE HISTORY

[Seller] and [Buyer] are in dispute about the purchase price in relation to a delivery of meat. The District Court (Landgericht) Dresden has affirmed in First Instance proceedings a claim for the purchase price on the part of [Seller] pursuant to Art. 53 CISG. It assumed an oral conclusion of contract between the parties. The District Court based its corresponding findings mainly on the statements made by Witness R. and the purchase order confirmation of 28 April 2003 (exhibit K3).

POSITION OF [BUYER] IN ITS APPEAL

By way of its appeal, [Buyer] claims [Seller]'s failure to perform the contract. [Seller] did not manage to prove whether and how much meat it had delivered to [Buyer]. [Buyer] further adhered to its submission that the contract had not been concluded with itself, but with Company H.F., domiciled in Do. Witness R. was not credible because at the time of his testimony he had already known of the statements by Witness K. The former was correspondingly prepared under tactics of litigation. In the course of oral contract negotiations between Witness R. and Witness K., neither of them mentioned the issue of commercial credit insurance. Only [Buyer]'s fax of 28 April 2003 could be regarded as an offer, which was however corrected, respectively, withdrawn only some minutes later per another fax (exhibit B1). For further details, reference is directed to the appellate submissions of 29 June 2006 (file pp. 302 et seq.).

REASONING OF THE COURT

1. The District Court (Landgericht) Dresden correctly found that [Seller] and [Buyer] have concluded a contract for the delivery of meat.

[Seller] bears the burden to prove and substantiate the conclusion of the contract between the parties.

First, both [Seller] and the District Court have based their assumption of a conclusion of contract on the content of the telephone call between Witness R. and Witness K. While Witness R. made specific statements to the effect that Witness K. expressly acted in representation of [Buyer], Witness K. failed to specifically demonstrate to have expressly acted in representation of Company H.F. Witness K. declares that apparently a contract was concluded by Company H.F. It was obvious that Company H.F. had been the purchaser, because Mr. R. had been having ongoing contact exclusively with Company H.F., and because the goods had always been delivered to that company. Witness K. has not indicated any further circumstances which would necessarily point to a representation for and contract conclusion by Company H.F.

However, it may remain undecided whether the contract was already concluded orally since the parties would in any event have concluded their contract in writing through [Buyer]'s purchase order confirmation and [Seller]'s subsequent confirmation by fax (see below a). In the alternative, the parties would have concluded their contract impliedly through issuance of the purchase order confirmation and the subsequent delivery of the goods (see below b), with [Buyer]'s purchase order confirmation not being effectively withdrawn (see below c).

The conclusion of contract between the parties requires an offer (Arts. 14 et seq. CSIG) and an acceptance (Arts. 18 et seq. CISG).

      a) The purchase order confirmation dated 28 April 2003 (exhibit K3, file p. 21) constitutes an offer in terms of Art. 14(1) CISG. This offer has reached [Seller] and thus became effective (Art. 15(1) CISG).

In accordance with Art. 18(1)(1) CISG, [Seller] accepted the offer by way of its fax dated 28 April 2003 (exhibit K4, file p. 22). The confirmation has been addressed to [Buyer], H.F. in Dr.

[Buyer] cannot argue that it did not receive the fax in Dr. In fact, the transmission report of the fax contains a fax number in Do. The fax has reached [Buyer] under this number. [Buyer] has not contested receipt of the fax in Do. [Buyer] has declared at multiple occasions that exhibit K4 had been transmitted to Company H.F. in Do. as indicated by the transmission report. Witness K., CEO of Company H.F. GmbH in Do. and co-owner of [Buyer], explained in the course of his hearing (p. 8 of the District Court's minutes of 20 January 2005) that Company H.F. did not have any subsidiary in Do. At the latter location existed merely an office where administrative affairs are carried out, inter alia those concerning Company H.F. Dr. This office in Do. constituted a shared office where the companies involved exercised their businesses. Among them were Company C. and Company H.F. Dr. This shared office had been in existence then.

Consequently, if [Buyer] entertains a shared office in Do. to which the fax number refers and from which it exercises its business, then it will have to accept any statements or letters received at this address.

      b) An acceptance by [Seller] of [Buyer]'s offer can also be impliedly derived from the fact that [Seller] actually made the delivery of the ordered meat to Company A.U. in accordance with the terms of the purchase order confirmation issued by [Buyer].

Delivery of the goods forms other conduct by the recipient for the purposes of Art. 18(1) CISG which expresses consent to the offer and which can thus be regarded as an acceptance.

      c) [Buyer] may not rely on a withdrawal (Art. 15(2) CISG) or revocation (Art. 16 CISG) of its previous offer by virtue of its corrected purchase order confirmation of 28 April 2003 (exhibit B1, file p. 40). Since [Seller] has contested reception of this fax, the burden rested on [Buyer] to prove that [Seller] had in fact received it.

Proof of reception of a fax can neither be made by submission of the transmission report nor by a witness statement to the effect that the fax has been dispatched (BGH [*], judgment of 7 December 1994, case docket VIII ZR 153/93; Kammergericht Berlin, judgment of 22 September 2003, case docket 8 U 176/02). The transmission report merely indicates that a connection has been established between the transmitting and receiving devices. The transmission report is without any value in order to prove a successful transmission of the data and to demonstrate the absence of any failure of transmission. This is because the data transmission might have failed due to defects at the recipient's device, e.g., paper jams, circuit disruptions or distortions which cause abortion of the connection. Any such abortion and transmission failures would not be identified in the transmission report. So long as it remains possible for the transmission to fail despite positive indication on the transmission report, the report itself will be an indicating factor at the most, but will be insufficient to establish prima facie that the fax has actually been received (BGH and Kammergericht, see above and with further references). [Buyer] thus failed to prove that [Seller] had received the fax.

2. [Seller] also fulfilled its obligation under the contract. It has remained undisputed in the proceedings in the First Instance that the meat was delivered to Company A.U. in accordance with the agreement. This circumstance further follows from the bill of delivery submitted as exhibit K5 (file p. 23). Company A.L. in U. is indicated as recipient. The stamp applied on the bill confirms receipt of the goods (with a reservation notice concerning quality and weight) by A.U. as instructed by H.F. in Do.

Insofar as [Buyer] for the first time challenges within the course of appellate proceedings that the goods had been delivered at all, any such submissions would not be admissible under 531 ZPO [*].

Finally, [Buyer]'s objection that delivery had not been made to itself is irrelevant.

The purchase order confirmation of 28 April 2003 (exhibit K3) expressly provides for "free station A.U., gate ..." as the address of delivery. The place of receipt is indicated in [Seller]'s fax of 28 April 2003 as "cold storage house A.A. N.-street ..., gate ..., U.". The bill of delivery (exhibit K5) contains the recipient's address "A. L. U. A. N.-street ..." and the applied stamp reads "arrival of goods A. U. upon instruction by H.-F. Do.". Thus, [Seller] has performed its obligation by having made delivery of the goods as agreed. It is without any bearing for the purposes of performance of contract whether Company A. U. acted upon instruction by a third party -- this being Company H.F. in this case.

DECISION OF 10 NOVEMBER 2006

   1.   [Buyer]'s appeal against the judgment rendered by the District Court (Landgericht) Dresden of 28 April 2006, case docket 44 O 0192/04 is dismissed.
 
   2.   [Buyer] bears the costs of the proceedings.
 
   3.   The value of the action is set at EUR 15,538.35.

REASONING OF THE COURT

[Buyer]'s appeal is dismissed by unanimous decision of the Court in accordance with 522(2) ZPO [*], because the appeal has no expectation to succeed, the dispute lacks fundamental importance and the development of the law or the achievement of a unitary jurisprudence does not require a judgment to be made by the Appellate Court.

According to 522(2)(3) ZPO, reference is made to the Court's decision of 27 September 2006 for the applicable reasoning.

[Buyer]'s submissions made in its memorandum of 27 October 2006 do not succeed in changing the Court's legal opinion which it has already set out.

The Court adheres to the finding that a contract of sale between the parties was concluded at the latest by virtue of [Buyer]'s purchase order confirmation and [Seller]'s subsequent confirmation via fax. Alternatively, a contract would have been concluded in any event impliedly by virtue of [Buyer]'s purchase order confirmation and [Seller]'s delivery of the goods.

At the outset, it is once again clarified that the indications brought forward by [Buyer] do not necessarily lead the Court to assume an oral conclusion of contract between [Seller] represented by Witness R. and Company H.F. in Do., allegedly represented by Witness K. Even under the assumption that the statement by Witness R. was not convincing, the statements by Witness K. would not be sufficient to prove [Buyer]'s submissions that a contract had been concluded between [Seller] and Company H.F.

As has already been explained in the Court's decision of 27 September 2006, [Buyer]'s purchase order confirmation of 28 April 2003 reached [Seller] as an offer in terms of Art. 14(1) CISG and thus became legally effective. [Seller] in turn accepted the offer by its fax dated 28 April 2003 or, in any event, by making delivery of the goods in accordance with the purchase order confirmation of 28 April 2003.

[Seller]'s fax of 28 April 2003 had reached [Buyer] in Do. A declaration of intent reaches its addressee if it has entered the addressee's sphere in a way that the latter has a possibility under normal circumstances to become aware of the content of the declaration. Any facilities set up by the addressee for his receipt of declarations of intent form part of the addressee's sphere of control. Receipt of a declaration is only accomplished if the addressee has the possibility to become aware of the content and if awareness can be expected in accordance with the general customs of the trade concerned (Palandt/Heinrichs, BGB, 64th ed., 130 para. 3). Witness K. has unambiguously explained that the companies involved (among them [Buyer]) exercised their businesses at the shared office in Do., which is where the fax arrived. In this case, fax machine and office are within the sphere of control attributable to [Buyer] for the purposes of receiving declarations of intent. Moreover, Witness K. is competent to receive declarations addressed to [Buyer] as its authorized representative.

Finally, the meat has actually been delivered to Company A.U. as stated in [Buyer]'s purchase order confirmation. Also this can be seen as an acceptance of [Buyer]'s offer by [Seller].

Having delivered the meat to Company A.U. as agreed, [Seller] performed its contractual obligation, 362 BGB [*]. In accordance with the contract concluded between the parties, Company A.U. was competent to accept the goods. [Seller] has not been obliged to take any action other than deliver the meat to their premises. The parties did not make an agreement under which the meat had to be delivered directly to [Buyer]. It does not follow from the stamp applied ("upon instruction by H.-F., Do.") that Company A.U. had not acted for [Buyer] in the course of its competence to accept the goods.

The Court further adheres to its finding that [Buyer] failed to prove that the fax containing the withdrawal actually reached [Seller]. No prima facie proof has been established by [Buyer].

In general, each party must furnish proof in support of the legal requirements on which it intends to rely in a given case. Whoever wants to derive legal consequences from the existence of a declaration of intent will have to prove its dispatch and arrival at the addressee. Problems of proof accrue when the addressee operates a facility for receipt where it is hardly ever possible for an addressor to prove that the declaration has properly arrived, in particular if no confirmation of receipt is issued (modern forms of telecommunication: mailbox, fax, e-mail). In these cases it has been considered to help the addressor with a prima facie proof of receipt if he has been able to prove dispatch of the declaration. However, a prima facie proof of receipt, established on the basis of having proved dispatch of the declaration, would in practice not be any different from a full-scale proof because it is not apparent how the addressee should ever be able to challenge the prima facie proof. As a consequence, the well-considered allocation of risk between addressor and addressee in relation to the question of receipt would be turned upside down, because in reality the addressee would bear any transmission risks through this regulation on the burden of proof. It would render an addressee helpless if an addressor had the opportunity to select his mode of transmission according to favorable rules concerning the burden of proof. An addressor's attorney would even be obliged to give the according legal advice. Refusing the addressor to rely on a prima facie proof of receipt, however, will not render it absolutely impossible for him to succeed in his proof of receipt on the basis of having already proved dispatch. The evidentiary constellation will change in favor of the addressor if further factors indicate that the declaration has reached the addressee apart from the common experience that dispatched faxes or letters will generally reach their addressee (cf. Staudinger/Singer/Benedict 2004, 230 paras. 105 et seq. with further references, especially to recent jurisprudence). However, the mere fact that another fax has already reached the [Seller] a few minutes earlier is no sufficient indication to successfully prove receipt of the later fax. Moreover, the wording of [Seller]'s letter of 28 April 2003 (exhibit K4) supports the conclusion that the later correcting fax was not received. [Seller] would have certainly made a reference to it.

The decision on costs is based on 97 ZPO [*]. The value of the dispute has been determined according to 47 GKG [*], 3 ZPO.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of France 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: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGH = Bundesgerichtshof [German Federal Supreme Court]; GKG = Gerichtskostengesetz [German statute on court fees]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** 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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