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CISG CASE PRESENTATION

Germany 5 December 2006 District Court Köln (Plastic faceplates for mobile telephones case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/061205g1.html]

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

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Case identification

DATE OF DECISION: 20061205 (5 December 2006)

JURISDICTION: Germany

TRIBUNAL: LG Köln [LG = Landgericht = District Court]

JUDGE(S): Kellar, Bends, Förster

CASE NUMBER/DOCKET NUMBER: 85 O 200/05

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Austria (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Plastic faceplates for mobile telephones


IHR headnote

Reproduced from Internationales Handelsrecht [4/2007] 162

"In case of an excess delivery of diverse types of goods a notice of lack of conformity stating merely the value of the excess is insufficient."

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 18 ; 38 ; 39 ; 42 ; 43 ; 52 ; 53 ; 74 ; 78 ; 85 ; 87 ; 88

Classification of issues using UNCITRAL classification code numbers:

18C [Acceptance of offer by performing an act];

38A [Buyer's obligation to examine goods: time for examining goods];

39A1 ; 39A2 [Requirement to notify seller of lack of conformity of goods: within reasonable time; Specification of nature of non-conformity];

43A [Notice of third-party claims: buyer's obligation to notify seller];

52B ; 52C [Excess quantity: buyer may take delivery or refuse the excess; Contract rate applies to the excess goods buyer received];

53A [Obligation of buyer to pay price of goods];

74A [General rules for measuring damages: loss suffered as consequence of breach];

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

85B1 [Seller in possession or controlling disposition of goods: must take reasonable steps to preserve goods];

87A [Preservation of goods by deposit in warehouse];

88A3 [Party obliged to preserve goods may sell them: reasonable notice of intention]

Descriptors: Acceptance of offer ; Examination of goods ; Lack of conformity notice, timeliness ; Lack of conformity notice, specificity ;Third-party claims ; Intellectual property ;Delivery ; Price ; Damages ; Cover transactions ; Interest; Storage of goods ; Resale of goods

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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/1440.pdf>; Internationales Handelsrecht (4/2007) 162-163

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Köln

5 December 2006 [85 O 200/05]

Translation [*] by Florian Arensmann [**]

Edited by Jan Henning Berg [***]

In the dispute between:

Manufacture and Distribution Company ___, hereafter referred to as [Seller], domiciled in Linz, Austria, Plaintiff

vs.

Merchandise Trade Company ___, hereafter referred to as [Buyer], domiciled in Pulheim, Germany, Defendant

the 5th Chamber in commercial matters of the District Court (Landgericht) Köln has held that:

  1. With dismissal of the claim for the rest, [Buyer] is ordered to pay [Seller] EUR 133,041 plus 8 % interest above the prime lending rate of the Austrian National Bank since 9 February 2005 reduced by:

       -    EUR 320 plus interest of 8 % above the prime lending rate of the Austrian National Bank since 26 July 2003,
       -    EUR 90 plus interest of 8 % above the prime lending rate of the Austrian National Bank since 2 June 2004,
       -    EUR 430 plus interest of 8 % above the prime lending rate of the Austrian National Bank since 16 February 2004 and
       -    EUR 1,190 plus interest of 8 % above the prime lending rate of the Austrian National Bank since 2 September 2003.

  2. [Buyer] bears the costs of the proceedings.

  3. This judgment is preliminarily enforceable against a security deposit of 110 % of the amount to be enforced.

CASE

[Seller] supplied [Buyer] with plastic faceplates for mobile phones before the market for such goods collapsed in 2004. [Buyer] had ordered the faceplates at the Cebit exposition in Hannover on 19 March 2003 and at the exposition IFA in Berlin on 30 August 2003 as well as, [Seller] alleges, via telephone.

POSITION OF THE PARTIES

[Seller]'s claim. [Seller] claims the remaining purchase price lowered by the revenue gained from a cover-sale plus storage and carrying costs caused by, in [Seller]'s view, unjustified returns.

[Seller] requests the Court to order [Buyer] to pay EUR 133,041.00 plus interest in the amount of 8 per cent above the prime lending rate of the Austrian National Bank since 9 February 2005.

[Buyer]'s position. [Buyer] requests the Court to dismiss the [Seller]'s claim.

[Buyer] disputes that orders were placed via telephone. Concerning the orders at the exposition, [Buyer] alleges that:

   -    Huge excess quantities were delivered.
 
   -    [Seller] had violated trademark rights of the company Nokia, resulting in the confiscation of a huge quantity of faceplates.
 
   -    [Buyer] was obliged by way of settlement to pay damages and to provide allowances in kind in the amount of EUR 100,000.00 to Nokia.

Finally, [Buyer] declares (correspondingly) to rely on set-offs with counterclaims.

Reference is directed to the file's content for the details of the parties' submissions and the results of the hearing of evidence.

REASONING OF THE COURT

The [Seller]'s claim is largely justified, Art. 53 CISG. The [Buyer] had no right to return the goods.

According to Art. 38(1) CISG, the seller has to examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. According to Art. 39(1) CISG, the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity, Art. 52(2) CISG. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.

[Buyer] has lost the right to rely on a lack of conformity of the goods. According to [Buyer]'s own illustration, it complained about the delivery of huge excess quantities in the value of EUR 90,000 for the first time at the Cebit exposition in the spring of 2004. This complaint did not contain a specified description of the lack of conformity as required by Art. 39(1) CISG, nor was this notice provided within reasonable time, since all deliveries at the time of the Cebit exposition in the spring of 2004 were already dated back one month, except for the last order of a marginal amount via telephone which had been charged on 26 February 2004.

[Buyer] can also not rely on the alleged violation of trademark rights as it did not comply with the corresponding duty of inspection, notification and rejection according to Art. 43 CISG. [Buyer] should have given notice to [Seller] of the right or title of the third party within a reasonable time period from the date of knowledge, specifying this right or title. This was not done.

The Court also assumes that the orders via telephone, as alleged by [Seller], were actually placed since this was confirmed by witness Handlgruber. Moreover, if [Seller] were, nevertheless, found to have delivered goods in a particular case which had not been ordered, [Buyer], by its actions, has indicated that it accepted the inherent offer by undertaking sales out of these deliveries without giving notice of the lack of conformity. That was the case with all deliveries. [Seller] documented this by data sheet with the undisputed written submissions dated 8 June and 12 September 2006.

As [Buyer] did not have the right to return the goods, [Seller] is entitled to the claimed storage and carrying costs. [Buyer] does not object to the cover-sale according to Arts. 85, 88 CISG undertaken by [Seller]. As far as [Seller] did not report anything concerning a notice to [Buyer] of its intent to sell, the lack of this notice would only lead to a duty for reimbursement of a loss resulting out of this. That is not displayed here.

[Buyer] has not disputed the calculation of interest submitted by [Seller].

In conclusion, the [Seller]'s claim is therefore only to be lowered by the four undisputed counterclaims submitted by [Buyer] for which the same interest rate claimed by [Seller] is applied to calculate the compensation.

Ancillary procedural decisions are based on 92(2), 709 ZPO [*].

Value in dispute: EUR 133,041.00.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Austria is referred to as [Seller]; Defendant of Germany is referred to as [Buyer]. Amounts in the uniform European currency (Euro) are indicated as [EUR]. Translator's note on abbreviations: ZPO = Zivilprozessordnung [German Civil Procedure Code].

** Florian Arensmann is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis International Commercial Arbitration Moot with the team of the University of Osnabrück.

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

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Pace Law School Institute of International Commercial Law - Last updated September 21, 2007
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