Germany 6 July 2007 Lower Court Freiburg (Shoe case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070706g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 4 C 4003/06
CASE HISTORY: Unavailable
SELLER'S COUNTRY: [-] (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Shoes
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]; 74A [General rules for measuring damages (loss suffered as consequence of breach): includes out-of-court legal expenses]; 78B [Rate of interest];
39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];
74A [General rules for measuring damages (loss suffered as consequence of breach): includes out-of-court legal expenses];
78B [Rate of interest];
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/1596.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
6 July 2007 [4 C 4003/06]
Translation [*] by Daniel Fritz [**]
FACTS AND POSITION OF THE PARTIES
The [Seller] claims payment of the remaining sales price from the [Buyers].
Following an order issued by [Buyer 1], who operates a shoe store under the business name of [Buyer 2], the [Seller] delivered forty-one pairs of shoes to [Buyer 2] in the first quarter of 2004 and on 26 February billed 2,034.15 Euro. The invoice stated: "TERMS OF PAYMENT: 90 DAYS NETT TRANSFER". The consignment comprised among others ten pairs o9f shoes indicated as "150" with a price of 49.15 Euro each and eleven pairs indicated as […] with a price of 51.15 Euro each. With huge difficulties, [Buyer 2] sold one pair of each type of shoes long after the delivery. On 4 August 2006, [Buyer 2] made a payment of 930.00 Euro.
Following a partial acknowledgment of debt on 27 April 2007, the Court ordered the [Buyer] to pay a further 50.00 Euro.
The [Seller] now seeks to have the Court order the [Buyer] to:
The [Buyer] seeks to dismiss the [Seller]'s claim.
The [Buyer] asserts that the delivery of the pairs of shoes identified as […] and […] was a wrong delivery, since the heels are leather-covered, which was not ordered, a fact of which the [Buyer] promptly gave notice to the [Seller] by fax a couple of days after the receipt of the goods.
The [Seller] replied that such a fax was not received shortly after the delivery. Only with its fax of 7 December 2005, has the [Buyer] has a wrong delivery, which then was too late. Moreover, there was no wrong delivery, since the delivered goods were in conformity with the order.
For further submissions, see the writ of the parties and the protocol of the court proceedings. The Court entered into proceedings of evidence by hearing witness […] and […] on the question whether and when, respectively, the wrong delivery was brought to the attention of whom. For the outcome of this hearing, please see the protocolS of 27 March 2007 and 21 June 2007.
The legal action is admissible. In particular, [Buyer 2] as Gesellschaft bürgerlichen Rechts [civil law partnership under the German Code of Civil Law] according to §§ 705 BGB [*] is able to participate in court proceedings as it operates in daily business life (BGH Z [*] 146, 341).
The [Seller]'s action is also justified. According to Art. 54 CISG, the [Buyer], also [Buyer 1] personally (Sprau in Palandt, Commentary on BGB, 66 ed, § 714 n. 24), is obligated to pay the remaining sales price as specified in the claim.
The CISG applies to the sales contract between the parties, since they have their places of business in different Contracting States. The [Buyer] is precluded from asserting, that the delivered shoes are deficient (wrong delivery of allegedly not ordered shoes), since the [Buyer] has not provided evidence of having notified the [Seller] about the wrong delivery within a reasonable time after delivery. It would suffice to give evidence that the notice was despatched timely (Art. 27 CISG). None of the two witnesses, however, could confirm that the notice of non-conformity that was presented was send to the [Seller] by fax. They neither sent the fax personally nor were they present when a third person sent the fax. The mere conversations within the shoe store and between the witnesses that the non-conformity shall be notified does not provide evidence of despatching such intended notice. Moreover, the views of the witnesses were contradictory as to who was the addressee of such alleged fax. Witness Ms. […] asserts that the fax was to be sent to the "Firma" (most likely the [Seller]), whereas the other witness stated that the fax was to be sent to the "Zimmermann Gruppe" (the agent that initiated the contact between the [Seller] and the [Buyer] at a fair).
As the [Buyer] failed to provide evidence of despatching such notice, it can remain undecided whether the goods were non-conforming and whether a notice to the agent can meet the further requirements of Art. 39 CISG. [Buyer]'s inability to completely return the goods since it has sold two pairs of shoes and the loss of the respective right to object to the non-conformity insofar (cf. Art. 82 CISG), can remain undecided for the same reason.
The [Buyer] owes interest payable on arrears as claimed by the [Seller]. The duty to pay such interest exists after the sales price falls due (Arts. 58, 78 CISG). According to the agreed payment terms, the payment falls due 90 days after the billing date specified in the invoice. National law applies to determine the interest rate, since the CISG does not provide any specific rule on interest rates. Hence, the interest rate is governed by § 288 subsection 2 BGB [*].
The [Seller] can claim out of court-legal expenses as part of the further damages according to 74 CISG.
The decision on the cost of the proceedings, also comprising the cost of the partial acknowledgment of the [Seller]'s claim is based on § 91 ZPO [*]. The decision on the preliminary enforceability is based on §§ 708 No. 11, 711 ZPO.
* All translations should be verified by cross-referencing against the original text. For purposes of this translation Plaintiff is referred to as [Seller], Defendant 1 as [Buyer 1] , Defendant 2 as [Buyer 2] and both Defendants together as [Buyer].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Code of Civil Law]; BGHZ = Entscheidungssammlung des Bundesgerichtshofs [compilation of decisions of the German Federal Court]; ZPO = Zivilprozessordnung [German Law of Civil Court Procedure]
** Daniel Fritz is a graduate of the University of Potsdam and has received his LL.M. degree (International Trade Law) at the University of Stellenbosch.Go to Case Table of Contents