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CISG CASE PRESENTATION

Germany 17 November 2006 Appellate Court München (Dust ventilator case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/061117g1.html]

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

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Case identification

DATE OF DECISION: 20061117 (17 November 2006)

JURISDICTION: Germany

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

JUDGE(S): Dietl, Lutz, Moretti

CASE NUMBER/DOCKET NUMBER: 24 U 501/06

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

CASE HISTORY: 1st instance Amtsgericht Landsberg 21 June 2006 [affirmed]

SELLER'S COUNTRY: Austria (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Dust ventilator


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 27 ; 39(1) ; 49 [Also cited: Article 35(2)(a) ]

Classification of issues using UNCITRAL classification code numbers:

27A [Delay or error in communication: dispatch of communication by appropriate means (to address previously provided by seller)];

39A [Requirement to notify seller of lack of conformity: buyer must notify within reasonable time];

49B1 [Buyer's loss of right to declare avoidance after delivery: failure to avoid within periods specified in art. 49(2)(a) and (b)]

Descriptors: Communications, risk of ; Lack of conformity notice, timeliness ; Avoidance

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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/1395.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) München

17 November 2006 [24 U 501/06]

Translation [*] by Stella Heyken [**]

Edited by Veit Konrad [***]

JUDGMENT

The Appellate Court unanimously dismisses the appeal by Defendant [Seller] against the judgment awarded in favor of Plaintiff [Buyer] by the Amtsgericht [Court of First Instance] ofLandsberg/Lech, in accordance with § 522(2) ZPO [*].

REASONING OF THE COURT

The [Seller]'s appeal is unfounded. The judgment does not refer to any legal mistakes and does not give rise to making a new decision upon the arguments presented, in accordance with § 529 ZPO (§ 513 ZPO).

1. In its appeal, [Seller] unsuccessfully objects to the fact that the Court of First Instance failed to consider further evidence proving the conformity of the dust ventilator.

[Seller], who was not represented by counsel before the Court of First Instance, never disputed on firm grounds the defects objected to by [Buyer]. [Seller] only presented a general rebuttal. [Seller] did not respond to the argument that the machine became constipated after a short time and switched off automatically.

[Seller]'s allegation that [Buyer] failed to comply with the instructions given by [Seller] is also unfounded. A subsequent instruction merely indicated that the machine was to be installed behind rather than on top of the shredder equipment. The evidence presented at the hearing substantiates that the machine was repositioned, yet the defects the [Buyer] objected to were not eliminated. Apart from that, it is also shown by the fact that [Buyer]'s proprietor actually found, following [Seller]'s attempts to repair the machine through conversion (shortening the suction pipe, fitting an additional plate), that the defects had nothing to do with the instructions or installation of the machine, but rather with its construction.

According to vivid and detailed witness testimonies by ... and ..., which the Court of First Instance relied on, as opposed to [Seller]'s rather vague objections, the Court proceeds on the assumption that the dust ventilator did not conform to the purposes of use stipulated in the contract (Art. 35(2)(a) CISG [United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980], cf. Palandt, 64th ed., § 28 EGBGB [*] para. 7). Instead of sucking in the dust, the machine diffused it around the room. In addition, the paper board containers in the dust ventilator are too small, causing the ventilator to switch off too early. Thus the suitability for use of this machine cannot be substantiated even by an expert opinion.

2. Moreover, the Court of First Instance found that the [Buyer]'s objection and notification of avoidance were timely.

In accordance with the CISG, for a notice under Art. 39(1) and a notification of avoidance under Art. 49 CISG, it is sufficient if the buyer gives notice "within a reasonable time". According to the dispatch theory stipulated in Art. 27 CISG, if any communication is made by a party by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication. This means that the seller takes the risk for the transmission and buyer's rights relating to dispatch are protected even if the communication is not received, or it is delayed or received by the seller with different contents. (cf. Schlechtriem/Schwenzer, Kommentar zum Einheitlichen UN-Kaufrecht, 4th ed., Art. 39, para. 11).

In the present case, [Seller] assumes the risk of transmission of communications, since [Seller] was obliged to inform [Buyer] of the change of address of its offices for the purposes of maintaining a smooth business relationship between the parties. Moreover, [Buyer] properly points out that [Seller] intentionally misled [Buyer] when [Seller] issued an invoice dated 30 December 2004 with its old address (p. 7- ), although it had already relocated its business from Hall, Austria to Reith, Austria on 23 February 2004.

The [Buyer]'s notice indicating the defects, dated 18 March 2005, and the [Buyer]'s notification of avoidance, dated 6 May 2005, were, therefore, both sent without any delay, that is, within a reasonable time.

3. The [Seller]'s request for an expert opinion on the subject, which was first made during the second instance proceedings, as well as the request for inspection by [Seller] is, therefore, too late (§ 531(2) ZPO).

This does not put [Seller], who was not represented by a counsel before the Court of First Instance, in an unreasonably disadvantageous situation because the Court of First Instance declared after hearing the evidence at the oral hearing on 19 April 2006 that it will not obtain ex officio an expert opinion relating to the evidence presented at that hearing. Moreover, the deadline available to [Seller] to object to [Buyer]'s brief, dated 27 March 2006, in which the defects were again listed in detail, passed by without [Seller] having made any objection.

[...].


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of Germany is referred to as [Buyer]; Defendant-Appellant of Austria is referred to as [Seller].

Translator's note on abbreviations: EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; ZPO = Zivilprozessordnung [German Code on Civil Procedure]

** Stella Heyken is a law student of the University of Osnabrück, Germany

*** 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.

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Pace Law School Institute of International Commercial Law - Last updated April 9, 2007
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