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CISG CASE PRESENTATION

Germany 21 March 2007 Appellate Court Dresden (Stolen automobile case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070321g1.html]

Primary source(s) of information for case presentation: CISG-online database

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Case identification

DATE OF DECISION: 20070321 (21 March 2007)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 9 U 1218/06

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

CASE HISTORY: 1st instance Landgericht Dresden (14 O 823/05) 16 June 2006

SELLER'S COUNTRY: Germany (defendant)

BUYER'S COUNTRY: Belarus (plaintiff)

GOODS INVOLVED: Stolen automobile


UNCITRAL case abstract

GERMANY: Oberlandesgericht Dresden 21 March 2007

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/128],
CLOUT abstract no. 1235

Reproduced with permission of UNCITRAL

Abstract prepared by Ulrich Magnus and Jan Lüsing

The decision of the Higher Regional Court of Dresden clarifies that if the purchased goods turn out to be stolen the seller fails to comply with articles 30 and 41 CISG and each failure represents an independent breach of contract to be considered separately.

The plaintiff, a citizen of the Republic of Belarus, purchased a used car in Germany from the defendant: the contract stipulated the exclusion of liability for defects. The car was paid and handed over to the buyer; however it turned out to be stolen and was seized by the Belorussian police. The buyer informed the seller about this fact one week after seizure. While the vehicle registration document showed no inconsistency, the vehicle identification number was only on a metal sheet, which had been affixed onto the original number by spot welding. The seller sued the buyer for damages including the purchase price, loss of profit, various expenditures and interests. The seller objected that the buyer failed to give notice of the defect within a reasonable time, that the liability for defects had been excluded, and that it could not be aware or supposed to become aware of the defects. Furthermore, the seller stated that in principle it could be ordered to reimburse the price only upon restitution of the car.

The Higher Regional Court upheld the buyer’s appeal against the District Court’s decision, which had sustained the seller’s complaint. The Higher Regional Court stated that pursuant to the applicable German law (§ 935 civil code), which is applicable to the “property-related effects of the conclusion of the contract”, the seller had failed to transfer the property in the car to the buyer. Therefore, the seller had breached its obligation under article 30 CISG as well as its obligation under article 41 CISG to deliver the good free from any right or claim of a third party.

The court found that while the exclusion of liability for defects deprive the buyer of its rights under article 41 CISG, the exclusion does not cover the seller’s main obligation to transfer the property under article 30 CISG. Also, the duty to notify established under article 43 CISG does not apply to article 30 CISG. Holding that the seller could not rely on article 79 CISG, the court sustained that the buyer could claim damages pursuant to articles 45(1)(b), 30, 74 CISG. Finally, the court stated that articles 81(2) and 82(2)(a) CISG, ruling mutual restitution of performances, were not applicable to the case at hands.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 30 ; 41 ; 42 ; 43 ; 74 ; 77 ; 79 ; 81 [Also cited: Articles 45 ; 49 ]

Classification of issues using UNCITRAL classification code numbers:

4B2 [Scope of Convention (issues excluded): effect of contract on property];

30A [Obligation of seller to deliver goods and hand over documents];

41A [Seller's obligation to deliver goods free from any third-party right or claim];

42A [Seller's obligation to deliver goods free from third-party claims based on intellectual property];

43A2 [Buyer's obligation to notify seller of third-party claims within a reasonable time after buyer's awareness of claim];

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

77A [Obligation to take reasonable measures to mitigate damages];

79B [Impediments excusing party from liability for damages];

81C [Restitution by each party of benefits received]

Descriptors: Scope of Convention ; Property in the goods ; Delivery ; Third party claims ; Damages ; Mitigation of loss ; Exemptions or impediments

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1626.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) Dresden

21 March 2007 [9 U 1218/06]

18 January 2007 [9 U 1218/06]

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

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

DECISION OF 21 MARCH 2007

   1.    [Seller]'s appeal against the judgment rendered by the District Court (Landgericht) Dresden of 16 June 2006 (Case Docket: 14 O 0823/05) is dismissed.
 
   2.    [Buyer] bears 25% of the costs of the appellate proceedings, and [Seller] bears 75%. [Buyer] bears 25% of the costs of the third-party intervention (Nebenintervention) and the intervener bears 75%.
 
   3.    The value of the appellate proceedings is EUR 9,072.27.

REASONING OF THE COURT

The Court unequivocally dismisses the [Seller]'s appeal in accordance with § 522(2) ZPO [*]. The case had no prospect to succeed; the case is not of fundamental importance and the development of law or the institution of a uniform jurisprudence does not require a decision by the Appellate Court.

As for the reasons, reference is made to the guidance order rendered by the Court on 18 January 2007, § 522(2)(3) ZPO (see below). [Seller]'s submissions in its letter of 8 February 2007, the submissions made by the first intervener in its letter of 15 December 2006 (which was received on 14 February 2007) and the submissions made by the second intervener in its letter of 9 March 2007 cannot alter the opinion enunciated by the Court. In detail:

      Apart from being inadmissible, the appeal is also not justified insofar as it is based on an incorrect notification of the third party. Both intervening parties have had sufficient opportunity during the appellate proceedings to make their submissions, and the first intervener has in fact made extensive use of it. In any event, the submissions of the intervening parties could be fully taken into account for the decision in the Second Instance.

The delivery of a court order within due course which had been issued by an incompetent court retroactively interrupts the running of the limitation period under § 204(1) No. 3 BGB [*] with effect to the point in time when the request was received, § 167 ZPO. Any lack of jurisdiction or any reason for inadmissibility is without relevance to the interruptive effect of the court order, provided that the creditor demonstrates his intention to enforce the claim. Consequently, the running of the limitation period is interrupted by delivery of a court order issued by an incompetent court (Münchener Kommentar BGB / Grothe, § 204 margin number 33). Any judicial decision, including the service, is an act of the State. As such, it will generally have the designated legal effects, irrespective of the fact whether the decision is correct or incorrect on the merits (Baumbach / Lauterbach / Albers / Hartmann, ZPO, 65th ed., Übersicht § 300 margin number 10). As judicial decisions are legally ineffective only in very exceptional circumstances, namely, where they are obviously against the law (which is not the case at hand), even an erroneous court order is fully effective until it is repealed (Baumbach, margin number 20). [Seller]'s allegation that § 689(2)(2) ZPO would become meaningless if court orders -- contrary to this rule on jurisdiction -- could be filed before any court, is incorrect. If a court order is issued by a court which lacks territorial jurisdiction, it will remain legally effective (cf. BGH [*] MDR [*] 1990, 222). According to Official Document No. 7/2729 of the German Bundestag, § 689(2) ZPO provides for an exclusive jurisdiction which is necessary for an efficient operation of judicial dunning proceedings. § 689(2)(2) ZPO states that the Lower Court (Amtsgericht) Berlin-Schöneberg shall be competent to deal with those presumably few cases where the applicant has no place of general jurisdiction within Germany. According to [Seller]'s submissions, [Buyer] would be barred from any opportunity to remedy his mistake under § 691(2) ZPO because the Lower Court in P__ had incorrectly assumed its own territorial jurisdiction to issue the court order, a matter which is to be determined ex officio. Additionally, [Buyer] cannot be put at a disadvantage due to inadmissibility as a result of his choice to commence judicial dunning proceedings in lieu of a private law action. If [Buyer] had not applied for a court order before the Lower Court in P__, but had directly brought an action before the District Court (Landgericht) in D__, the running of the limitation period would have been interrupted in any case. The running of a limitation period is interrupted even by way of an action which is inadmissible due to a lack of territorial or subject-matter jurisdiction (for example, before the Lower Court in P__) (BGH NJW [*] 1978, 1058). Hence, [Buyer] cannot be put at a disadvantage because of the fact that he has decided to apply for a court order.

It is correct that the decision rendered by the Federal Supreme Court of Germany [BGH] on 24 January 1983 (NJW 1983, 1050 et seq.) is concerned with a case where a court order had been requested before an incompetent Lower Court but had been issued and served by the competent Lower Court and that the BGH states:

"This case does not concern the question of whether delivery of a court order which was issued by an incompetent court will interrupt the running of the limitation period."

However, the BGH goes on to address the fact that the application was submitted before an incompetent Lower Court:

"First, there is no reason to deny a retroactive effect to the point at the time of application if the application has been submitted before an incompetent court. In this case, the same principles must apply which also govern the filing of an action before an incompetent court. In that latter case, it is generally accepted that the running of the limitation period will be interrupted with retroactive effect. Certainly, the act of service will be retroactively effective only if it is about to occur 'in due course'."

This is the case at hand, because the court order, which had been applied for on 30 December 2004, has been served on 10 January 2005 without any delays caused by the fact that the application was submitted before an incompetent court.

Art. 43 EGBGB [*] states that any rights related to tangible property are governed by the law of the State in which the object is located. The car was located in Germany at the time of the execution of the transaction. Since the BGB applies to this case, [Buyer] could not acquire a bona fide property interest in the car. As no property has been acquired according to the lex rei sitae (no bona fide acquisition of property in stolen articles), no such acquisition could occur according to a different law which might have allowed an acquisition by the mere fact that the article is relocated into the territory of the respective State (Palandt / Heldrich, BGB, 66th ed., EGBGB Art. 43 margin number 6). Therefore, even if Belarusian laws had known a possibility to acquire a bona fide property interest in a stolen article, [Buyer] would not have acquired property by the mere act of importation of the car into Belarus.

It is not relevant to determine that the duty to notify in terms of Art. 43(1) CISG has been complied with, irrespective of the fact that [Buyer] has undisputedly notified [Seller] about the theft in relation to the car on 28 May 2001, which also follows from [Seller]'s statements contained in the police investigation file. This is because the duty to notify only applies in relation to Arts. 41 and 42 CISG but not in relation to Art. 30 CISG. The breaches of contract pursuant to Art. 30 and 41 CISG are independent of each other and have to be assessed separately.

For the first time, the intervener has argued that [Buyer] had failed to make conclusive submissions and had failed to prove its assertion that it had been forced to compensate a loan of its customer in advance. Given that the District Court has considered [Buyer]'s respective submissions as proven, the intervener would have had to engage in an in-depth discussion of the District Court's reasoning. The intervener's current arguments are insufficient to challenge the taking or evaluation of evidence by the District Court.

Contrary to [Seller]'s view, there should not have been an adjudication of [Buyer]'s claim conditional upon performance of a counterclaim. It has already been stated above that the CISG provides for performance conditional upon counter-performance (Leistung Zug-um-Zug) only under specific circumstances in the course of the avoidance of a contract, but not in the present case, where damages have been claimed pursuant to Art. 45(1)(b) CISG. Furthermore, an effective avoidance of a contract under Art. 49 CISG would not have been possible in the present case due to the absence of a timely declaration of avoidance, Art. 49(2)(b)(i) CISG.

[Buyer] has not failed to perform its duty to mitigate the loss under Art. 77 CISG. Although it has been argued that [Buyer] had already been able to have the car released at the insurance company for EUR 1,500 by November 2002 and thus to acquire the property, these submissions are neither supported by the letters referred to nor by the additional insurance file. The intervener refers to a correspondence between the insurance company and [Seller]'s former attorney. The latter received an offer to release the car in November 2002. The insurance file also indicates that [Buyer]'s customer -- but not [Buyer] itself -- has attempted to have the car released during 2002 which however has not been executed. Even if the insurance company had also made an offer of release to [Buyer], the latter would not have been obliged to acquire the deficient (stolen) car.

[Seller] may not rely on Art. 79 CISG. The Court has already indicated that [Seller] has failed to explain why it had not or could not have noticed the affixed metal plate containing the vehicle identification number, which would have certainly given rise to suspicion. In the light of this indication, the mere statement, that the act of manipulation had not been obvious or not perceivable without a closer examination, cannot be considered.

The Court has not identified any fundamental importance of the present case. In addition, this case is not concerned with an unresolved question of law which may be expected to turn up in a number of future cases again. Consequently, there is no sufficient public interest in securing a uniform development and application of the law.

The Court assumes that [Buyer]'s declaration of withdrawal in his letter of 7 February 2007 (received by the Court on 20 March 2007) relates to the amendment of his action which had been declared on 4 August 2006 at item 3.

The decision on costs is based on §§ 97(1), 101(1), 269(3), 516(3) ZPO [*]. The value of the dispute has been determined according to §§ 47 GKG [*], 3 ZPO ([Seller]'s appeal: EUR 6,831.56, [Buyer]'s appeal: EUR 944.93, amendment of the action: EUR 1,295.78).

DECISION OF 18 JANUARY 2007

  1. The Court indicated that it intended to dismiss the appeals pursuant to § 522(2) ZPO [*] because they lacked any prospect to succeed; the case is not of fundamental importance and the development of law or the institution of a uniform jurisprudence does not require a decision by the Appellate Court.

  2. The parties to this dispute were given the opportunity to make submissions within two weeks. The parties were advised to withdraw their appeals, also as a means to save additional costs.

FACTS AND CASE HISTORY

The case is concerned with a claim for damages. Plaintiff [Buyer] is a citizen of the Republic of Belarus. He purchased from Defendant [Seller] a car, type Audi "without warranty", on 18 May 2001. The purchase price of Deutsche Mark [DM] 8,800 was paid and the car was handed over. On 21 May 2001, the car was seized in Belarus (exhibit K6), because it had been stolen in 1998. On 28 May 2001, [Buyer] informed [Seller] that the car had been seized because of alleged theft, whereupon [Seller] agreed to reimburse the purchase price conditional upon restitution of the car. [Seller] advised [Buyer] to consult the police. By letter of 16 January 2002, [Buyer] requested [Seller] to reimburse the purchase price with a reservation to claim further damages. Reference is made to the judgment of the Court of First Instance for further details.

By judgment of 16 June 2006, the Court of First Instance, the District Court (Landgericht) Dresden, ordered [Seller] to pay damages in the amount of EUR 5,169.92 (purchase price, registration costs and lost profit) plus interest and held that [Seller] was also liable to pay for an additional interest claim in the amount of EUR 1,661.64 in respect of a loan granted to [Buyer] by its customer, because this customer had already made an advance payment of the purchase price and was now to be reimbursed by [Buyer] in installments. The District Court based the damages claim on §§ 440, 325 BGB [*] (former version). The action was dismissed with respect to costs for export and transport, procurement of visas and [Buyer]'s journeys to Germany, because of insufficient proof.

POSITION OF THE PARTIES

Position of [Buyer]

[Buyer] raised an appeal in respect to his claim for reimbursement of costs incurred due to four train journeys to Germany plus costs for catering and accommodation. [Buyer] alleges that, in order to clarify the affairs, journeys to Germany had been necessary on 22 May 2001, 28 May 2001 as well as in June and July 2001. [Buyer] claims costs for round-trip train journeys between B. and D. of EUR 67 each plus costs for catering and accommodation of EUR 51.13 per day. Moreover, [Buyer] alleges to have incurred travel expenses for procurement of visas in the amount of EUR 40 and expenses for the visa itself in the amount of 164.41. [Buyer] has also amended its action by additionally claiming an increased import tariff and increased interest. [Buyer] submits that, in the course of importation of the car into Belarus, a tariff of EUR 844.09 had been imposed. [Buyer] alleges that he was also entitled to additional interest of EUR 451.69 with respect to reimbursement of the loan granted by its customer, which accrued because of exchange rate fluctuations between the Euro and the US dollar.

Position of [Seller]

Both [Seller] and the third-party interveners in its support submit that the judgment of the District Court violated the principle of a fair trial and the right to be heard in court, because the third-party notice had been incorrectly served. The recipient of the third-party notice could therefore not support [Seller] during the proceedings as well as intended. Moreover, international law had to be applied instead of German law. The request for reimbursement of 16 January 2002 had been filed too late because [Buyer] had already been aware of the lack of conformity by 21 May 2001. [Seller] could not possibly have been and need not have been aware of the fact that the car had been stolen, which means that it would not be liable for the non-conformity. In any event, the claim had already been time-barred as an incompetent Lower Court (Amtsgericht) had been petitioned for a court order. As [Buyer] had not been able to make restitution of the car, [Seller] had in turn been relieved from its obligation to perform. Furthermore, the agreed exclusion of warranty had also covered the obligation to transfer property. Finally, [Buyer] could only be entitled to claim performance conditional upon counter-performance.

REASONING OF THE COURT

1. [Seller]'s appeal is inadmissible insofar as it argues that there have been incorrect proceedings by the District Court in terms of an alleged delayed and incomplete service of the relevant submissions to the third-party participants. According to § 520(3) No. 2 ZPO, a statement of appeal must specify the circumstances giving rise to the violation of rights and their impact on the decision thus contested. [Seller] has failed to substantiate in what way the third-party intervener would have been supportive and which decision this might have.

2. [Buyer] is entitled to a claim for damages pursuant to Arts. 45(1)(b), 74, 41, 30 CISG.

      a) The contract of sale is not governed by German law but by the CISG. Germany and Belarus are Contracting States to the United Nations Convention on Contracts for the International Sale of Goods (CISG). The parties have neither expressly nor impliedly agreed that German law should be applied. In particular, all parties involved in these appellate proceedings rely on the applicability of the CISG.

      b) [Seller] has committed two breaches of contract. First, it was not able to transfer property in the car to [Buyer] (Art. 30 CISG). Second, it has delivered goods which were not free from any right or claim of a third party (Art. 41 CISG).

The property-related effects of a conclusion of contract are governed by the applicable domestic law, which is the BGB [*] in this case (Schlechtriem / Schwenzer, Kommentar zum einheitlichen UN-Kaufrecht, 4th ed., Art. 4 para. 29, Art. 30 margin number 7). Any question of whether the seller has transferred property to the buyer is to be resolved by recourse to the domestic law of property applicable according to the conflict of laws rules of the forum. § 935 BGB provides that there may be no bona fide acquisition of property of stolen articles.

[Seller] cannot argue that [Buyer] had not notified the non-conformity in terms of Art. 41 CISG within reasonable time according to Art. 43(1) CISG. Instead, it has been established that [Buyer] personally notified [Seller] on 28 May 2001 that the car had been stolen. [Buyer] has made an undisputed submission according to which he visited [Seller] on 28 May 2001, whereupon the latter declared that it would reimburse the purchase price conditional upon restitution of the car. At the same time, it advised [Buyer] to consult the police. Consequently, [Buyer] has sufficiently notified [Seller] that the car was subject to a non-conformity in terms of possible third-party rights within a few days after the conclusion of the sales contract.

According to Art. 45(1)(b) CISG, [Buyer] may claim damages if the seller fails to perform any of his obligations under the contract or this Convention.

      c) [Buyer]'s claim for damages is not barred by the exclusion of contractual warranty between the parties.

In fact, the car was sold "without warranty". Moreover, the parties may exclude the application of the CISG as a whole or in part.

The relevant stipulation by the parties could objectively be interpreted in a way that the seller intended to relieve itself from any liability for defects in both quality and title. Thus, the exclusion of warranty applies to the lack of conformity in terms of title (Art. 41 CISG). However, it is a main obligation under the contract to transfer property in the goods (Art. 30 CISG) which is not covered by an exclusion of warranty (LG [*] Freiburg IHR [*] 2003, 22 (23)).

      d) [Seller] is not relieved from its obligation to reimburse the purchase price and to pay damages according to Art. 79(1) CISG. This Article provides that a party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.

[Seller] had acquired the car from retailer ... GmbH, which itself had purchased it from I. K. The vehicle registration document (exhibit K3) was handed over during each of these two transactions. Arguably, no irregularities are apparent in that respect.

According to a report of the police department ... (exhibit 4) and the translations of the official letters from Belarus (exhibit K6), an expert opinion has concluded that a metal plate with the current vehicle identification number had been affixed onto the original vehicle identification number through spot-welding.

A vehicle identification number is usually affixed visibly in the engine compartment. The mere fact that the vehicle identification number was written on a separate metal plate which was welded on the vehicle could have caused [Seller]'s suspicion. [Seller], who bears the burden of proof in this respect, has not demonstrated yet that it could not have noticed the metal plate.

      e) Limitation of the claim for damages would have only occurred with regard to the claim based on non-conformity of the goods (because the car was not free from a right of a third party). According to Art. 3 of the Law Concerning the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 and Amending the Law Concerning the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956, the provision of § 477 BGB [*] (former version) applies. At the time when the court order to enforce the claim was requested, the six-months period had long expired.

However, this does not apply to the limitation of the claim for damages based on non-performance of the main obligation, namely the transfer of property to the buyer. The limitation of claims for damages is governed by the domestic law applicable to the contractual relationship (Schlechtriem / Schwenzer, Kommentar zum einheitlichen UN-Kaufrecht, 4th ed., Art. 74 margin number 28). The claim for damages would have become time-barred on 31 December 2004 according to § 195 BGB (former version) in conjunction with Art. 229 § 6(4)(1) EGBGB [*]. It is true that [Buyer] would have had to apply for a court order at the Lower Court (Amtsgericht) Berlin-Schöneberg, § 689(2)(2) ZPO [*]. However, the expiration of the limitation period is retroactively interrupted (30 December 2004 time of receipt of the request of the court order) if the petitioned court lacks jurisdiction or if the application for the court order was inadmissible but was to be served in due course (10 January 2005), see BGHZ [*] 86, 314 (322); Palandt / Heinrichs, BGB, 66th ed., § 204 margin numbers 5, 18).

      f) Contrary to the view taken by [Seller], an adjudication of performance conditional upon counter-performance is not possible.

[Buyer] seeks damages. The provisions of Art. 74 CISG express the principle of full compensation: The creditor is entitled to be fully compensated for any loss which it has suffered as a consequence of the breach of contract. A comparison of the actual situation after the breach of contract with the hypothetical situation in which the creditor would have been in if the contract had properly been executed determines which losses must be considered for a damages claim. Consequently, damages seek to satisfy both the creditor's interest in the benefits directly connected to the performance of the contractual duties (Erfüllungsinteresse) and the interest not to suffer any damage in relation to rights and interests protected by law to which the creditor is entitled independently of the contract (Integritätsinteresse). Furthermore, Art. 74 CISG protects any expenses which have been made in reliance on the existence of a valid contract (Vertrauensinteresse) (Schlechtriem / Schwenzer, Kommentar zum einheitlichen UN-Kaufrecht, Art. 74 margin number 2).

A restitution of performances conditional upon counter-performance in terms of Art. 81(2)(2) CISG would only have to be considered if [Buyer] -- instead of or in addition to claiming damages -- had avoided the contract according to Art. 43(1) CISG. However, even in that case, [Buyer] would be relieved from his obligation to make restitution of the car, because the impossibility to do so is not due to his act or omission, Art. 82(2)(a) CISG.

3. [Buyer] is not entitled to any additional damages.

      a) [Train journeys, expenses for catering and accommodation]

      [Buyer] has failed both before the Court of First Instance and the Appellate Court to prove that the alleged train journeys to Germany had been made, that they had been necessary and that the claimed expenses had actually been incurred.

[Buyer] would have been able to notify the lack of conformity and to seek an amicable settlement via an interpreter by telephone, fax or letter. He could also have instructed an attorney in Belarus as a means of protecting his interests. In any event, the journeys to Germany have not been necessary.

Moreover, [Buyer] has failed to demonstrate and to prove that he has actually traveled to Germany by train within the purported time in order to achieve a settlement of the claims solely as a consequence of the breach. The District Court has already stated that it is as well possible that [Buyer] traveled at a third party's expense or in the course of other commercial transactions. [Buyer] himself has declared in his appellate submission: "[Buyer] regularly travels to Germany ..."

[Buyer] was already requested during the oral hearing of 9 September 2005 to provide a detailed account of the individual journeys and to deliver evidence. [Buyer] has only submitted information produced by the rail company on travel expenses and a tabular list of entry and departure dates (allegedly extracted from a passport), see exhibit K30. Additionally, his interpreter was designated as a witness for negotiations with [Seller] and the first intervener. This evidence is insufficient to prove that [Buyer] had in fact traveled four times by train from B. to Germany and vice versa with the object of protecting his rights and that he had in fact incurred the alleged expenses for traveling, catering and accommodation.

      b) [Costs of visa procurement]

      [Buyer] could neither demonstrate nor prove that he had to incur travel expenses for a round trip between B. and M. for the procurement of visas. The submitted ticket (exhibit K14) does not indicate the purpose of the journey and whether [Buyer] had in fact used the ticket. Additionally, only a price list for tourist visas in Russian language has been submitted as exhibit K14. [Buyer] could not prove that -- and if so, which -- expenses were actually incurred in respect to the visas. Insofar as [Buyer] has argued that he had obtained four visas for 30 days each, this is already in contradiction to the asserted travel dates. Traveling to Germany on 22 May 2001, 28 May 2001 as well as at the beginning of June and July 2001 does not require four, but merely two 30-day visas, at the most. Finally, reference is directed to [Buyer]'s own submission that he regularly traveled to Germany, which means that the expenses in relation to the visas would have accrued in any event, irrespective of the fact whether the problems in dispute had arisen out of the car purchase. [Buyer]'s submissions are also incomprehensible because, in the first place, he claims the price for tourist visas for 30 days, but then submits a visa in the amount of EUR 164.41 and states that "this had been more reasonable than one for only 30 days".

3. [Buyer]'s amendment of his action is not admissible in accordance with § 533 ZPO [*].

§ 533 ZPO provides that an amendment of an action is admissible inter alia if it is based on facts which the Appellate Court will have to take into account for its hearing and its decision on appeal in any event under § 529 ZPO.

The present case is concerned with new facts in terms of § 529(1) No. 2 ZPO, because the submissions in the First Instance proceedings are amended and corrected in relation to the items of damage "tariffs" and "interest" (Zöller / Gummer / Heßler, ZPO, 26th ed., § 351 margin number 24). New facts are only admissible in accordance with § 531(2) ZPO. The amendment of the action does not concern any aspects which have been overlooked by the court or which have been viewed as irrelevant. In addition, there are no apparent procedural errors which would have prevented [Buyer] from pleading his action. It is also not apparent that the relevant submissions had been omitted in the First Instance proceedings without being the result of [Buyer]'s own negligence.

      a) [Importation tariff]

      [Buyer] has submitted in the First Instance proceedings that he had paid US dollars [US $] 11 (EUR 13) for the importation of a car into Germany. [Buyer] submitted as evidence exhibit K12, in the Russian language without any translation. Now, [Buyer] has submitted a Russian letter as exhibit 4, according to which an importation tariff of US $771 had allegedly been paid. [Buyer] has failed to demonstrate that this new submission was omitted during the First Instance proceedings without any negligence on his part.

      b) [Claim for interest]

      [Buyer] bases his additional interest claim on exchange rate fluctuations of the US dollar and the Euro between 12 November 2001 and 12 May 2005. It is not explicable why [Buyer] would not have been able to calculate and submit the correct exchange rate until the closing of the oral hearing on 5 May 2006. This is particularly strange given that [Buyer] has corrected the interest claim to EUR 1,661.64 by his letter of 25 July 2005, after an allegedly incorrect exchange rate had been used previously.

4. An amendment of an action on appeal does not preclude the dismissal according to § 522(2) ZPO. This applies to all inadmissible amendments of a party's position in the course of the proceedings in terms of § 533 ZPO and, moreover, to those charges and defenses which are inadmissible according to § 531(2) ZPO (Zöller, § 522 margin number 37).


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Belarus is referred to as [Buyer] and Defendant of Germany is referred to as [Seller]. Amounts in the currency of the United States of America (US dollars) are indicated as [US $]. Amounts in the uniform European currency (Euro) are indicated as [EUR]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGH = Bundesgerichtshof [German Federal Supreme Court]; BGHZ = Entscheidungen des Bundesgerichtshofes in Zivilsachen [Officially reported decisions of the German Federal Supreme Court in Civil Matters]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws]; GKG = Gerichtskostengesetz [German statute on court fees]; IHR = Internationales Handelsrecht [German journal on international commercial law]; LG = Landgericht [German District Court]; MDR = Monatsschrift für Deutsches Recht [German law journal]; NJW = Neue Juristische Wochenschrift [German law journal]; 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.

*** Ph.D. candidate Daniel Nagel has studied law at the University of Heidelberg and at the University of Leeds.

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Pace Law School Institute of International Commercial Law - Last updated June 6, 2013
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