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CISG CASE PRESENTATION

Switzerland 26 November 2008 Handelsgericht [Commercial Court] Aargau (Fruit and vegetables case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/081126s1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20081126 (26 November 2008)

JURISDICTION: Switzerland

TRIBUNAL: Handelsgericht [Commercial Court] Aargau

JUDGE(S): Knecht (Präsident); Weber, Bohler, Nauer, Zimmerman

CASE NUMBER/DOCKET NUMBER: HOR.2006.79 / AC / tv

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Fruit and vegetables


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7 ; 8 ; 78 [Also cited: Articles 39 ; 58 ; 59 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): assignment, capacity of parties];

7A33 [Principles of interpretation (observance of good faith): application of good faith standards];

8A ; 8B ; 8C [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct; Interpretation based on objective standards; Interpretation in light of surrounding circumstances];

78B [Rate of interest]

Descriptors: Scope of Convention ; Assignment ; Capacity of parties ; Good faith ; Intent ; Interest

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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://globalsaleslaw.com/content/api/cisg/urteile/1739.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

Commercial Court (Handelsgericht) Aargau

26 November 2008 [HOR.2006.79]

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

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

FACTS

1. Plaintiff [Seller's Assignee] is a Spanish limited liability company that is domiciled in M.-B. In the present proceedings, it acts as the assignee of the German company T. [Seller]. The subject of the assignment is claims of the [Seller] against Defendant [Buyer].

2. [Buyer], a stock corporation, is domiciled in B., Switzerland. It trades in food, in particular fruits and vegetables. In addition, [Buyer] has been authorized to import and export goods of all kind and to purchase or sell patents, licenses and real estate. E. S. is recorded in the commercial register as [Buyer]'s director.

3. [Buyer] and [Seller] have entertained commercial relations throughout the year 2005. It is undisputed that there have been deliveries of the goods indicated in the submitted invoices.

4. By virtue of its action of 31 October 2006, [Seller's Assignee] filed the following legal request:

  1. [Buyer] should be ordered to pay to [Seller's Assignee] Euros [EUR] 712,114.72 plus 9.17% interest (to be calculated for the time between 1 July 2005 and 31 December 2005); 9.37% interest for the time between 1 January 2006 and 30 June 2006; and 9.95% interest for the time between 1 July 2006 and 31 December 2006, etc. in accordance with the biannually adjusted prime lending rate plus 8% as well as Swiss francs [Sfr.] 410.00 to cover the costs of the payment order.

  2. The debt enforcement no. 76071 which is pending at the Office for the Enforcement of Debts in B. should be allowed with definite effect in favor of [Seller's Assignee] for Sfr. 1,125,141.25 (EUR 712,114.72; exchange rate of Sfr. 1.58 per 1 EUR of 19 October 2006) plus interest.

    [Buyer] should also be ordered to bear all costs incurred in relation to the proceedings.

[Seller's Assignee] relies on claims against [Buyer] which have purportedly been assigned to it by [Seller]. [Seller's Assignee] argues that these claims arose out of contracts of sale between [Seller] and [Buyer]. The former had performed the contracts.

5. [Buyer]'s statement of defense is dated 9 January 2007 (posted on 10 January 2007 and received by the Court on 11 January 2007). This statement did not meet the requirements of 179(1) ZPO [*]. As a consequence, the Court rendered an order of 16 January 2007 whereby a time limit of 14 days was granted for [Buyer] to submit a corrected statement of defense. The Court announced that any default on the part of [Buyer] meant that the proceedings would continue on the basis of its previous statement of 9 January 2007.

6. By letter of 30 January 2007 (posted on 29 January 2007 and received by the Court on 31 January 2007), [Buyer] submitted its corrected statement of defense. It also filed a cross-action against [Seller's Assignee]. [Buyer] has made the following legal submission:

"The existence of [Seller's Assignee]'s claim for EUR 780,372.84 (respectively, EUR 750,390.31 according to the payment order which has been rendered by the Office for the Enforcement of Debts in B.) as well as the resulting amount of EUR 712,114.72 are denied in their entirety. There is absolutely no factual basis for such an assertion. Instead, we insist on the validity of our invoices, which are well-known to [Seller's Assignee].

"The declared set-off (see exhibit 1/A) results in a counterclaim in favor of [Buyer] for EUR 47,039.66 = Sfr. 72,912.00. This sum is now claimed in its entirety by virtue of the cross-action."

[Buyer] contests the existence of any claims and their legal basis. [Buyer] has asserted that it had not purchased the goods but that it had sold them on commission for [Seller]. It had never guaranteed any fixed individual prices. [Buyer] further argues that the claims brought forward by [Seller's Assignee] are based on incorrect prices which had been invoiced by [Seller]. [Buyer] had never accepted these invoices vis-à-vis [Seller]. [Buyer] has based its cross-action in the present proceedings on several invoices. It also relies on the invalidity of the assignment of claims in favor of [Seller's Assignee], as [Seller] had already been subject to insolvency proceedings at the relevant time. Moreover, [Buyer] relies on a partial lack of conformity of the goods. It alleges to be entitled to further claims for damages on this basis.

7. [Seller's Assignee] submitted its counterplea and statement of defense in relation to the cross-action on 13 April 2007. It has filed the following legal request:

  1. "[Seller's Assignee] expressly confirms the request which it has already made in its statement of claim of 31 October 2006.

  2. The cross-action should be dismissed in its entirety.

    [Buyer] should be ordered to bear all costs and expenses incurred in the context of these proceedings."

8. On 29 May 2007, [Buyer] submitted its rejoinder and its counterplea in relation to the cross-action. It has adhered to the previously filed request. On 21 June 2007, [Seller's Assignee] submitted its rejoinder in relation to the cross-action. The latter once again confirmed its requests.

9. On 5 February 2008, the Court held a party briefing and attempted to reach an amicable settlement between the parties. Both parties as well as witnesses J., F. and L. have been interrogated by the Court. However, the parties have not accepted an amicable settlement.

10. By court order of 14 May 2008, the Court asked the parties whether they sought to abstain from conducting an oral hearing and stated that silence would be understood as a waiver. Contrary to [Seller's Assignee], [Buyer] declared in its submission of 23 May 2008 that it insisted on an oral hearing. The main oral hearing was held on 24 October 2008. The Court has given both parties an opportunity to set out their legal positions and to explain the evidence obtained by the Court.

REASONING OF THE COURT

1. [Jurisdiction]

Seller's Assignee] is domiciled in Spain and [Buyer] is domiciled in Switzerland. The present action is concerned with assigned claims which have arisen out of commercial transactions between the Swiss [Buyer] and the German [Seller]. Therefore, the present case has an international dimension (Art. 1(1) IPRG [*]). In the present case, the question of territorial jurisdiction of the Court must be determined in accordance with the Lugano Convention because both parties are domiciled in a Contracting State (Spain and Switzerland) and the action is concerned with a civil or commercial matter (Art. 1(1) Lugano Convention). There is no exclusive jurisdiction in terms of Art. 16 Lugano Convention. Consequently, territorial jurisdiction of Swiss courts over the present case follows from Art. 2(1) Lugano Convention (place of jurisdiction of the domicile; Wohnsitzgerichtsstand) because [Buyer] is domiciled in Switzerland. As the relevant provision only governs the issue of international jurisdiction, the domestic territorial jurisdiction must be determined in accordance with the IPRG. Art. 112 in conjunction with Art. 21(1) IPRG provide that territorial jurisdiction lies with the courts at [Buyer]'s place of business. The latter has its place of business in the Swiss Canton of Aargau. Thus, the courts of the Canton of Aargau have territorial jurisdiction to adjudicate the present dispute.

Jurisdiction of the Commercial Court in terms of subject matter follows from 404(1)(a) second sentence ZPO [*]. [Buyer] is registered with the commercial register, the action is concerned with claims arising out of [Buyer]'s commercial transactions and the value of the present dispute has reached the necessary amount for an appeal in civil matters before the Federal Supreme Court (Bundesgericht).

2. [Procedural issues]

      2.1. According to 183(1) ZPO, the parties are obliged to submit their arguments by virtue of their statements of claim and defense. 183(2) ZPO provides that they may amend their submissions by virtue of counterplea and rejoinder. As soon as these arguments have been exchanged, any additional claims or defenses can be raised only if there is an excuse for the delayed submission ( 184(1) in conjunction with 183(1) ZPO; Edelmann, in: Bühler / Edelmann / Killer, Kommentar zur aargauischen Zivilprozessordnung, 2nd ed. 1998, 183 margin number 3 and 184 margin number 1).

      2.2. The exchange of arguments has been completed by [Seller's Assignee]'s filing of its rejoinder in relation to the cross-action on 20 June 2007. In the oral hearing of 24 October 2008, [Buyer] has mainly reiterated its previous arguments (notice of non-conformity of the goods given by [Buyer]; no prices guaranteed by [Buyer]; incorrect invoicing by [Seller]; statements concerning Mr. S. and his subsequent conduct after the termination of the contract with [Seller]; assignment of claims by [Seller] to [Seller's Assignee]). Arguments by [Buyer] which have been put forward in the course of the oral hearing, are only ancillary to the above statements. There are no objective or subjective reasons in the present case which might qualify as a reasonable excuse for the delayed submission. This also applies to the statements of [Seller's Assignee]. Likewise, the latter has mainly reiterated its previous arguments. However, [Seller's Assignee] has requested the Court to correct the minutes of the party briefing. This additional request will be considered in the following.

      2.3. [Seller's Assignee] has requested the Court to make the following correction on p. 17 of the minutes of the party briefing dated 5 February 2008: The second sum in Euros which is contained in the statement of S. reads: "This means that we paid EUR 0.65 per kilogram and that we invoiced EUR 0.65 against company M. AG." The invoiced amount should be corrected to "EUR 0.80". In the course of the oral hearing, [Buyer] has not made any statement regarding this matter. The record of the party briefing of 5 February 2008 indicates that the briefing minutes are indeed incorrect. [Seller's Assignee]'s request for the desired correction is therefore allowed and the minutes of the briefing are to be corrected in the respective manner.

3. [Giving of evidence by the parties]

By way of an order of 16 January 2007, the Court granted [Buyer] an opportunity to amend its statement of defense. The Court indicated which formal and material requirements must be met by a proper statement of defense and that the proceedings would continue on the basis of the statement of defense submitted by [Buyer] on 9 January 2007 in case of default. Thereupon, [Buyer] submitted another letter. However, this letter does not materially differ from the previous statement of defense (court file, 95 et seq.). In particular, [Buyer] failed to draw references between the numerous documents -- which have been submitted as items of evidence in several volumes (dossier A, exhibits 1-8, exhibits B (41 volumes), exhibit C (1 volume)) -- and its specific assertions. Despite the fact that it has mentioned these exhibits in its letter, it has not sufficiently specified which particular documents or parts of documents (pages and paragraphs) are taken into consideration. Furthermore, the exhibits 1-8 are mentioned by [Buyer] in its letter, but they do not constitute individual documents. Instead, they are compilations of numerous documents and are contained in file jackets. In the light of the foregoing, it must be determined whether [Buyer] has offered evidence in the appropriate manner.

      3.1. The relevant procedural law of the Swiss Canton of Aargau provides that requests for the taking of evidence must be filed within the appropriate time and in the appropriate manner before a right on the taking of evidence arises. According to the constant practice of the Commercial Court, an item of evidence has been offered in the appropriate form if it can be attributed to a specific assertion with sufficient certainty under the statements made by the parties. This means that the principle of referenced evidence (Prinzip der Beweisverbindung) applies: Any items of evidence must be named at the same time as the respective arguments (cf. Edelmann, in: Bühler/Edelmann/Killer, 167 margin number 5). Evidence in form of written documents must indicate by themselves or at least by virtue of the asserted circumstance the extent to which they are supposed to be introduced as evidence into the proceedings. This is necessary in order to enable the opposing party to submit a substantiated counter-argument by reference to the particular evidence offered. Thus, any flat references to extensive compilations of evidence where the Court had to compile the relevant factual basis are inadmissible. On the other hand, the applicable standard for an offer of evidence in the appropriate form may not be excessively strict. It is acceptable if particular references can be drawn between individual assertions and the items of evidence in the light of good faith. However, it is evident that any flat reference to an extensive compilation of individual documents does not meet these requirements provided that they are supposed to prove various factual assertions.

      3.2. With respect to the documents contained in the file jackets (dossier A, exhibits B), [Buyer] has not offered evidence in the appropriate manner. There are too many individual documents and no specific references are drawn to the factual assertions. It is also not possible for the Court to draw any such references. Consequently, the relevant documents have not been appropriately offered as items of evidence and cannot be considered within the present proceedings.

A different reasoning applies to the documents which have been submitted by [Buyer] as exhibits 1-8. Similarly, a number of documents are contained in each of these exhibits. In this case, however, it appears possible to draw specific references between them and individual factual assertions. Therefore, it must be assessed in each individual case whether [Buyer] has submitted evidence in the appropriate manner and form. Provided that a reference between a specific document and a specific assertion can be drawn in good faith, the offered item of evidence is to be considered in the course of the proceedings.

4. [Applicable law]

Since the present case has an international dimension, the applicable law must be determined by the Court ex officio. Generally, the applicable law is determined by the provisions contained in the IPRG [*] (Art. 1(1)(b) IPRG). However, Art. 1(2) IPRG states that primarily, relevant international treaties need to be taken into account. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is such an international treaty which contains uniform substantive law. The substantive provisions of the CISG apply directly and without any recourse to domestic conflict of laws rules.

      4.1. The applicable substantive law depends on the content and nature of the contractual relationship. The nature of the contractual relationship which has given rise to the asserted claims is to be determined according to the laws of the forum state (lex fori), which are the laws of Switzerland in the present case (BGE [*] 119 II 66 (69); 96 II 79 (88)). This legal assessment will be based on the factual basis which has been submitted to the Court by the parties. It is undisputed that [Seller] had been in contractual relations with [Buyer]. However, the exact content of the respective contracts is in dispute. [Seller's Assignee] alleges that contracts of sale have been concluded with fixed prices. [Buyer], on the other hand, states that it was merely obliged to sell the goods on commission and that fixed prices had never been guaranteed by [Buyer].

[Seller's Assignee] states that it received its claim by way of an assignment from [Seller]. Under Art. 145(1) IPRG, an assignment of claims is governed by the domestic law which also applies to the claim if no choice of law has been made. Therefore, the law applicable to the claim itself must be determined.

      4.2. If [Seller's Assignee]'s argument were correct, the asserted claims would be governed by the CISG. This is because they have arisen out of international sales of goods and because both Switzerland and Germany are Contracting States. Since the CISG does not contain provisions on assignment (cf. Ferrari, in: Schlechtriem / Schwenzer, Kommentar zum Einheitlichen UN-Kaufrecht, 4th ed., Munich 2004, Art. 4 margin number 38; Brunner, UN-Kaufrecht - CISG, Berne 2004, Art. 4 margin number 34), the Hague Convention on the Law Applicable to International Sale of Goods of 1955 would apply pursuant to Art. 145 in conjunction with Art. 118 IPRG and determine the law governing the assignment. Switzerland is a Contracting State and the Convention applies to international sales of goods (Art. 1(1) Hague Convention). In that case, Art. 3(1) Hague Convention would lead to the application of German law, because this is the law of the country where the vendor was having its habitual residence at the time when it had received the order.

However, [Buyer] has asserted that the relevant claims had arisen out of a commission contract because it had sold goods on commission for [Seller] without having guaranteed fixed prices. In that case, the CISG would be inapplicable and the governing law would be determined by virtue of the conflict of laws provisions contained in the IPRG, which in turn gear to the characteristic performance under the contract. The characteristic performance of the provision of services is similar to the characteristic performance of a commission (Art. 117(3)(c) IPRG; Vischer / Huber / Oser, Internationales Vertragsrecht, 2nd ed., Berne 2000, margin number 453). Since [Buyer] is domiciled in Switzerland, Swiss law would apply. In accordance with Art. 145(1) IPRG, Swiss law would also govern the assignment.

      4.3. In summary, the CISG will govern the claim if [Seller's Assignee]'s assertions prove to be true. On the other hand, if [Buyer]'s opinion is correct, Swiss domestic law will apply to the asserted claim. Consequently, either German or Swiss law will govern the assignment.

5. [Validity of the assignment of claims to Seller's Assignee]

[Seller's Assignee] argues that the claims had been validly assigned by [Seller] (court file, 3). [Buyer] contests the validity of this assignment because [Seller] had already been insolvent at the time of the assignment (court file, 95).

      5.1. Contrary to the assignment itself, the questions on whether the parties to the assignment contract had the necessary legal capacity to act and whether the assignor had a power of disposition over the claim are not governed by the law applicable to the claim. They must be determined according to the respective law which applies to the legal person (Art. 35 IPRG for natural persons and Art. 155(c) IPRG for legal persons; cf. Keller / Girsberger, ZK-IPRG, Art. 145 margin number 45; Rüegsegger, Die Abtretung im Internationalen Privatrecht, pp. 76 et seq.). Therefore, German law applies to [Buyer]'s assertion that [Seller] lacked the power to dispose of the claim. In order to prove its argument, it relies on information contained in a file jacket which has been submitted as exhibit no. 2 to its statement of defense.

      5.2. The documents submitted by [Buyer] indicate that the application to commence insolvency proceedings has been dismissed by the Lower Court (Amtsgericht) in L. on 3 July 2006 due to a lack of assets. Moreover, the company was already dissolved. On the other hand, the instrument of the assignment (submitted by [Seller's Assignee] as exhibit no. 3) indicates that the liquidator performed the assignment on behalf of [Seller].

            5.2.1. [Buyer] does not assert that Liquidator J. lacked legal capacity. Instead, it merely asserts that no valid assignment could be performed any longer because of the existence of pending insolvency proceedings. This assertion is not correct, given that the application to commence insolvency proceedings has been dismissed under 26(1) InsO [*]. Insolvency proceedings have never commenced, which means that the power of disposition over the assets of [Seller] has not passed to the insolvency administrator (cf. 80(1) InsO).

            5.2.2. 70 GmbHG [*] determines the legal capacity of liquidators over a German limited liability company. Inter alia, the liquidators are obliged to close any running transactions, to perform any obligations of the dissolved corporation, to enforce any unsettled claims and to convert the existing assets into cash. Therefore, Liquidator J. was perfectly able to dispose of the capital assets of [Seller] on 12 October 2006, this being the time of assignment. Consequently, [Buyer]'s argument against the validity of the assignment is unfounded.

6. [Conclusion of contracts and their content]

Art. 8(1) CISG provides that the content of a contract is primarily determined by a subjective interpretation which takes into account the corresponding actual intent of the parties (Schmidt-Kessel, in: Schlechtriem / Schwenzer, Kommentar zum Einheitlichen UN-Kaufrecht, 4th ed., Munich 2004, Art. 8 margin numbers 9 et seq., Melis, in: Honsell, Kommentar zum UN-Kaufrecht, Berlin 1996, Art. 8 margin number 4). The corresponding actual intent of the parties is to be ascertained by relevant indicating factors -- provided that these can be identified (Art. 8(3) CISG; Schmidt-Kessel, in: Schlechtriem / Schwenzer, Art. 8 para. 12; Melis, in: Honsell, Art. 8 margin number 9). According to the objective criteria referred to in Art. 8(3) CISG, the exact wording chosen by the parties as well as the systematic context are of particular relevance (Schmidt-Kessel, in: Schlechtriem / Schwenzer, Art. 8 margin number 40). Moreover, any previous negotiations and subsequent conduct of the parties may indicate how they have actually understood their respective declarations of intent. Additionally, the actual intent can be construed on the basis of the parties' interests, the purpose of the contract and the objective circumstances at the time of the conclusion of the contract (Art. 8(3) CISG; Schmidt-Kessel, in: Schlechtriem / Schwenzer, Art. 8 margin number 12).

Should an actual concurrence of intent remain unproven in court, Art. 8(2) provides that a presumptive intent may be determined. For this purpose, the declarations of the parties must be interpreted according to their reasonable meaning in the light of wording, context and the principle of good faith (Brunner, Art. 8 margin number 6; Schmidt-Kessel, in: Schlechtriem / Schwenzer, Art. 8 margin number 19). Such an interpretation according to the principle of good faith seeks to determine the normative consensus, while the crucial factor will be an interpretation from the perspective of the recipient (Schmidt-Kessel, in: Schlechtriem / Schwenzer, Art. 8 margin number 19; Brunner, Art. 8 margin number 7). In accordance with Art. 8(3) CISG, all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties must be considered as well as the interests of either party and the purpose and systematic context of the contract (Melis, in: Honsell, Art. 8 margin numbers 10 et seq.).

      6.1. It is undisputed that contracts have been concluded between [Seller] and [Buyer] with respect to all the deliveries of goods which have been asserted. It is also undisputed that the goods subject to the invoices nos. 58-289 (see the list below) have been delivered by [Seller] The factual basis as it has been ascertained by the Court contains the following deliveries. Finally, it is undisputed that [Seller] has issued invoices regarding these deliveries.

Invoice no. Date of invoice Sum invoiced (EUR) Exhibit
58 9 June 2005 18,778.50 8
62 15 June 2005 14,947.90 34
63 15 June 2005 25,680.00 16
83 1 July 2005 14,701.80 16
84 1 July 2005 15,122.10 35
108 21 July 2005 5,889.93 36
109 21 July 2005 6,333.04 37
110 21 July 2005 6,241.20 38
111 21 July 2005 6,328.00 39
112 21 July 2005 6,891.40 40
113 21 July 2005 7,755.00 41
138 28 July 2005 6,576.30 42
143 29 July 2005 6,269.76 43
144 29 July 2005 6,451.20 44
145 29 July 2005 14,154.00 45
146 2 August 2005 13,533.91 46
147 2 August 2005 16,500.04 47
150 3 August 2005 8,998.60 48
151 3 August 2005 13,685.00 49
152 3 August 2005 18,236.40 50
153 3 August 2005 14,618.34 51
154 3 August 2005 19,643.27 52
155 3 August 2005 17,032.20 53
156 3 August 2005 14,976.21 54
159 3 August 2005 16,160.85 55
160 3 August 2005 13,650.00 56
161 3 August 2005 9,900.00 57
162 3 August 2005 19,216.56 58
163 4 August 2005 16,736.60 59
164 4 August 2005 19,226.35 60
165 4 August 2005 15,712.50 61
166 4 August 2005 18,384.40 62
167 4 August 2005 23,494.63 63
168 4 August 2005 16,151.40 64
169 4 August 2005 13,746.75 65
170 4 August 2005 7,491.60 66
171 4 August 2005 13,860.00 67
174 5 August 2005 16,980.00 68
175 5 August 2005 17,320.60 69
176 5 August 2005 6,026.72 70
177 5 August 2005 14,830.20 71
178 5 August 2005 19,620.90 72
180 9 August 2005 16,024.32 73
188 18 August 2005 17,062.40 74
189 18 August 2005 15,444.00 75
190 18 August 2005 15,444.00 76
191 18 August 2005 12,970.08 77
192 19 August 2005 16,239.20 78
193 19 August 2005 15,444.00 79
196 23 August 2005 15,444.00 80
197 23 August 2005 15,988.36 81
198 23 August 2005 14,892.48 82
200 25 August 2005 14,663.22 83
201 25 August 2005 15,444.00 84
202 25 August 2005 16,916.80 85
203 25 August 2005 16,525.08 86
204 25 August 2005 15,253.92 87
209 30 August 2005 16,914.56 88
210 30 August 2005 14,880.00 89
211 30 August 2005 16,948.80 90
212 30 August 2005 16,316.80 91
213 30 August 2005 17,372.52 92
216 5 September 2005 15,744.00 93
217 5 September 2005 16,846.08 94
218 5 September 2005 17,372.52 95
219 5 September 2005 16,948.80 96
220 5 September 2005 16,773.60 97
221 5 September 2005 18,008.10 98
229 14 September 2005 17,844.84 99
230 14 September 2005 15,119.00 100
231 14 September 2005 16,053.10 101
232 14 September 2005 14,759.50 102
233 14 September 2005 16,236.00 103
234 14 September 2005 16,236.00 104
235 14 September 2005 16,479.18 105
237 14 September 2005 12,582.70 106
277 28 November 2005 9,750.00 107
279 28 November 2005 7,290.00 108
280 28 November 2005 11,520.00 109
282 28 November 2005 6,600.00 110
283 28 November 2005 10,182.49 111
284 28 November 2005 15,087.50 112
289 29 November 2005 14,828.55 113

      6.2. However, the exact content of the contracts between [Seller] and [Buyer] is in dispute. [Seller's Assignee] asserts that these were contracts for the delivery of fruit by [Seller]. In turn, [Buyer] had agreed to pay the respective purchase prices. [Buyer] argues that such prices had never been promised. Instead, it had only sold goods on commission for [Seller]. The prices claimed had been incorrectly invoiced.

            6.2.1. [Seller's Assignee] states that each delivery had been performed under an individual contract of sale which had been concluded over the telephone. [Seller] had promised to perform delivery of the goods while [Buyer] had agreed to pay the purchase price.

                  6.2.1.1. In order to prove that its argument was correct, [Seller's Assignee] has offered Mr. L. and Mr. F. as witnesses (court file, 18 et seq.). Witness L. has stated that a delivery of the goods on commission had never been a transaction effected by [Seller] and that, instead, sales had always been concluded with fixed prices (court file, 204). Witness L. has further stated that it had acted as a translator in the course of the oral negotiations between F. and [Buyer]'s representative over the telephone, which is why he had observed the stipulation of fixed prices (court file, 204 et seq.). Witness F. has confirmed these statements (court file, 215). [Buyer]'s representative has declared that it had never purchased the goods at fixed prices. Rather than that, the contracts had been concluded using open prices (court file, 204).

                  6.2.1.2. With respect to the content of the contracts which have actually been concluded, [Seller's Assignee] further relies on an agreement between [Seller] and [Buyer] of 3 June 2005. This purported agreement has never been contested by [Buyer] in its letters. According to [Seller's Assignee]'s statements, the representatives of [Seller] and [Buyer] had discussed various possible forms of cooperation and finally agreed that [Buyer] should purchase goods from [Seller] at given prices (court file, 6). Witnesses L. and F. -- who have been called upon by [Seller's Assignee] -- have confirmed both the meeting as such and the content of the agreement as purported by [Seller's Assignee] (court file, 202, 215). Moreover, witness J. has confirmed that he had participated in this meeting and that an agreement had been reached containing the terms asserted by [Seller's Assignee] (court file, 211). On the other hand, [Buyer]'s representative has stated that while he had participated in the meeting in L., no agreement had been reached on that occasion (court file, 203). Since the respective contracts had been concluded at a later date, any agreement could merely constitute an indication as regards their content.

                  6.2.1.3. Pursuant to 75(1) ZPO [*], the parties are obliged to present their asserted factual basis to the Court and to offer the relevant items of evidence. The allocation of the burden of proof determines which party will be favored if a legally relevant circumstance has not been successfully demonstrated. Any demonstrations in terms of fact have to be sufficiently substantiated. If asserted circumstances have not been sufficiently substantiated, they will be considered as unproven (ZR 104 [2005] 34 et seq.; Bühler, in: Bühler / Edelmann / Killer, Kommentar zur aargauischen Zivilprozessordnung, 2nd ed., Aarau 1998, 75 margin number 4). The burden of substantiation refers to the onus of dividing an assertion into individual facts in order to enable the taking of evidence and the application of the law (Bühler, in: Bühler / Edelmann / Killer, 75 margin number 7). The substantive federal law determines the extent to which the relevant facts giving rise to the asserted claim need to be substantiated in terms of content before the substantive law can be readily applied. The exact prerequisites will depend both on the elements of the respective legal provision and on the procedural conduct of the opposing party. Factual assertions have to be specific enough as to allow the other party to make a substantiated counter-argument or to enable it to deliver counter-evidence. If the opposing party contests the conclusive submissions which have been made by the party bearing the burden of proof, the latter may be obliged to set out the legally relevant facts in a clear and comprehensive manner in order to enable a taking of evidence (judgment 4C.180/2002 of the Federal Supreme Court (Bundesgericht) of 26 August 2002, at 2.4; BGE [*] 127 III 365, 367 et seq.). If a party fails to comply with its burden of substantiation, that party will not be able to correct its shortcoming in the course of a subsequent taking of evidence by an attempt to complete the fragmentary submissions (judgment 4A.267/2007 of the Federal Supreme Court (Bundesgericht) of 14 October 2007, at 5.4). A sufficient substantiation is the very prerequisite which must be fulfilled before a party has a right to present evidence in support of its submissions (Bühler, in: Bühler / Edelmann / Killer, 75 margin number 7).

                        6.2.1.3.1. [Buyer] bears the burden of proof with respect to the content of the contract which it has asserted. In the light of the above reasoning, [Buyer]'s argument, namely, that it had acted as a mere reseller of goods on account of [Seller] and that it had not purchased any goods from the latter (court file, 95 et seq.), has not been sufficiently substantiated. A taking of evidence concerning this argument is not possible. [Buyer] has not identified in its statement of defense the particular agreements and deliveries of goods which are being referred to. The items of evidence offered in support of its flat assertion cannot prove the purported sale of the goods on account of [Seller]. Moreover, the evidence has not been presented in the appropriate manner (see above at 3). Thus, it cannot be considered.

                        6.2.1.3.2. On the other hand, [Seller's Assignee] has properly introduced some of those documents into the present proceedings in order to prove its argument that sales contracts had been concluded on the basis of fixed prices (see e.g., court file, 119; statement of claim 120/121; court file, 138; statement of claim 135). However, the documents submitted by [Seller's Assignee] prima facie appear to be evidence against the conclusion of sales contracts. The documents contain various statements which -- by their wording -- indicate that goods were being sold by [Buyer] on account of [Seller] (cf. statement of claim 120/121, where F. writes to [Buyer]'s representative E.S.: "Erich, you were supposed to sell the truck loaded with peaches which is on the road to me [...]"). These circumstances can be considered by the Court as an example of excessive evidence presented by the submitting party. Nevertheless, it is undisputed that contracts were concluded over the telephone, irrespective of the respective content of the contracts. [Buyer] merely contests the very content of the contract asserted by [Seller's Assignee] but it has not contested the circumstances and the conclusion of contracts as such. Therefore, the documents are mere indications of the content of the contracts, which have in fact been concluded at a later date. The actual intent of the parties at the time of the conclusion of the contract has primarily to be taken into account. It does not need to correspond to the wording of a previous statement. This holds true irrespective of whether the CISG or Swiss law is applicable.

                  6.2.1.4. Both the witness statements and the statements made by [Seller's Assignee]'s representative support a conclusion of contracts. Witnesses L. and F. have given a credible, clear and conclusive account of facts. There are no indications of any bias on their part. The opposing submissions of [Buyer]'s representative are not convincing. He has not sufficiently specified his argument that the statements of [Seller's Assignee]'s representative and of the witnesses were incorrect. The statements of [Buyer]'s representative cannot raise any reasonable doubts.

Furthermore, it must be assumed that the framework agreement asserted by [Seller's Assignee] has actually been concluded. Once again, the submissions of [Buyer]'s representative are not convincing. Both witnesses and [Seller's Assignee]'s representative have given a credible and conclusive account which does not raise any doubts as to their correctness. Thus, [Buyer] and [Seller] have entered into a framework agreement that individual sales contracts have to be concluded later on.

The appreciation of all relevant pieces of evidence submitted in favor of [Buyer]'s assertion cannot raise any reasonable doubts about the correctness of [Seller's Assignee]'s argument. While the documents rather support the assumption that a cooperation between [Seller] and [Buyer] under a commission contract had been envisaged, it must be considered that the goods of [Seller] might just as well have been marketed by [Buyer] by purchase and subsequent resale (cf. court file, 170). The conclusion of commission transactions is not a prerequisite for a marketing of the goods. Thus, the mere fact that [Buyer] was supposed to sell goods on account of [Seller] (according to the documents) does not necessarily mean that the parties had not concluded contracts of sale. The decisive criterion is the actual intent of the parties, which may deviate from the mere wording of a declaration. Finally, the existence of the framework agreement (see above, 6.2.1.2.) must also be considered for the legal appraisal of the documents. According to that agreement, [Buyer] and [Seller] decided to exercise their cooperation by way of sales contracts.

                  6.2.1.5. Consequently, [Seller's Assignee] has successfully proven its assertion, according to which [Seller] and [Buyer] have concluded contracts of sale to govern the deliveries listed above (at 6.1.).

            6.2.2. [Seller's Assignee] further alleges that individual prices had been agreed upon over the telephone for each delivery (court file, 7 et seq.). This is contested by [Buyer]. It argues that it had never guaranteed any prices. [Seller's Assignee] has offered Mr. F. and Mr. L. as witnesses in order to prove the correctness of its argument. Both witnesses have been heard by the Court in the course of the party briefing on 22 November 2007. Mr. F. has testified that he had acted as the representative of [Seller] and that he had extensively negotiated with [Buyer]'s representative Mr. S. about all prices (court file, 215). Mr. L. has stated that he had observed all negotiations over the telephone between F. and Mr. E.S. as the representative of [Buyer]. Being the only German-speaking employee of [Buyer], he had been involved in the negotiations as a translator (court file, 205). The witness statements of Mr. L. and Mr. F. are both credible. Independently of each other, both witnesses have confirmed the submissions of [Buyer] (Translator's note: This appears to be a typo in the German text of the judgment and should read "[Seller's Assignee]" instead). The two accounts provided during the party briefing are conclusive and coherent.

                  6.2.2.1. With respect to the asserted agreement of fixed prices, [Seller's Assignee] can also rely on both the invoices issued by [Seller] and [Buyer]'s business conduct being fully aware of these invoices. It is undisputed that [Seller] sent its invoices for the delivered goods to [Buyer] in various collective shipments. Invoices nos. 58-84 were sent on 5 July 2005, nos. 108-147 were sent on 2 August 2005, nos. 150-180 were sent on 16 August 2005, nos. 188-198 were sent on 24 August 2005, nos. 200-221 were sent on 5 September 2005, and nos. 229-289 were sent on 29 November 2005. Therefore, it has been established that [Buyer] performed commercial transactions with [Seller] within the time between 9 June 2005 (date of invoice no. 58) and 29 November 2005 (date of invoice no. 289). Thus, [Buyer] has continued to conclude contracts with [Seller] while the former must have been aware of the issuing of invoices. While [Buyer] asserts that it had never accepted [Seller]'s issuing of invoices, no evidence has been submitted to that effect.

                  6.2.2.2. Moreover, [Buyer] has undisputedly met the invoices nos. 58, 63 and 84 (court file, 10). According to [Seller's Assignee]'s submission, it deducted the erroneously mentioned VAT from the invoiced sum with respect to invoice no. 58. Being asked why the first invoices had been met without objections, [Buyer]'s representative stated that Mr. S. had told him that such issues would be resolved later on. [Buyer] should just refrain from paying the last invoices (court file, 206). However, the documents submitted to the Court do not contain any indications to the effect that such an agreement had actually been concluded. Furthermore, the statement made by [Buyer]'s representative is not even credible. Consequently, [Buyer] has failed to prove the existence of the alleged agreement. [Buyer]'s paying of the mentioned invoices is a strong indication that the respective claims against [Buyer] have actually arisen.

            6.2.3. In the light of the above reasoning and the evidence presented by [Seller's Assignee] -- in particular the conclusive testimony provided by Mr. F. and Mr. L. -- and with due consideration of the undisputed facts, it must be assumed that the representatives of [Seller] and [Buyer] have actually agreed on fixed prices for all deliveries in question (cf. the list at 6.1.). The additional submissions made by [Buyer]'s representative are insufficient to prove a different conclusion. His statements are not credible and do not convince the Court in the light of the undisputed facts and the documents submitted. Thus, [Buyer] has failed to raise any reasonable doubts about the circumstances purported by [Seller's Assignee]. Even more, [Buyer] has not successfully proven the correctness of its own allegations.

      6.3. Even if the available factual basis were insufficient to assume a conclusion of contracts between the parties containing fixed prices on the basis of concurring wills, such a result would in any event result from an interpretation of [Buyer]'s conduct according to good faith. [Seller] had to understand [Buyer]'s conduct as an implied statement that the latter agreed with the issuing of invoices by [Seller] and therefore agreed with the respective prices. No other objective meaning can be attributed to [Buyer]'s conduct: [Buyer] received invoices for goods delivered, partially paid for them and still continued to conclude transactions with [Seller]. Moreover, the documents submitted by [Seller's Assignee] demonstrate that [Seller] negotiated with [Buyer] about prices. Therefore, the relevant business conduct shown by [Buyer] amounts to more than mere silence upon [Seller]'s issuing of invoices. Therefore, [Seller] was entitled to assume in good faith that [Buyer] had agreed with the prices and that the respective contracts had been concluded.

7. [Claims arising out of the contracts]

Due to the available factual basis, the question of whether claims have arisen against [Buyer] in the asserted amount can be readily resolved irrespective of whether [Seller] and [Buyer] had concluded contracts of sale or of commission. The decisive point is that fixed prices have been agreed on between the parties (cf. above, at 6.2.2. et seq.). If [Buyer] had actually redistributed the goods under a commission contract, then Swiss law would have been applicable (cf. above, at 4.2.). In that case, [Buyer] would have been obliged under Art. 425(2) in conjunction with Art. 400(1) OR [*] to hand over the proceeds of the sale and would have been further obliged under Art. 428(1) OR to pay the difference between the stipulated (fixed) price and the price actually received. [Buyer] would be exempt from the obligation to pay the difference between stipulated and actual price only if it was able to prove that the particular sales were concluded in order to avert a damage to be suffered by [Seller] as the commissioning party and that the latter could not be reasonably consulted before the sale. [Buyer] has not submitted any argument to that effect. Therefore, [Buyer] would be obliged to pay the stipulated fixed prices for the goods delivered by [Seller] even if its allegations were assumed as correct.

8. [Effects of the assignment]

Based on the previous reasoning, the validity of the assignment of unsettled claims of [Seller] against [Buyer] -- as purported by [Seller's Assignee] -- is to be determined in accordance with German law. [Seller's Assignee] refers to the instrument of the assignment in order to prove its argument. Since [Seller] had the necessary power of representation at the time of the assignment (see above, at 5) and as the assignment has been exercised according to the applicable form requirements contained in 398 et seq. BGB [*], [Seller's Assignee] enters into the position of the creditor.

9. [Outstanding claims for payment of the purchase prices]

It follows from [Seller's Assignee]'s argument (court file, 17 et seq.) and the available facts that [Buyer] owes the following sums for deliveries of goods performed under the contract:

Invoice no. Date of invoice Sum invoiced (EUR) Sum owed (EUR) Exhibit
58 9 June 2005 18,778.50 17,550.00 8
62 15 June 2005 14,947.90 13,970.00 34
63 15 June 2005 25,680.00 25,680.00 16
83 1 July 2005 14,701.80 14,701.80 16
84 1 July 2005 15,122.10 14,132.80 35
108 21 July 2005 5,889.93 5,889.93 36
109 21 July 2005 6,333.04 6,333.04 37
110 21 July 2005 6,241.20 6,241.20 38
111 21 July 2005 6,328.00 6,328.00 39
112 21 July 2005 6,891.40 6,891.40 40
113 21 July 2005 7,755.00 7,755.00 41
138 28 July 2005 6,576.30 6,576.30 42
143 29 July 2005 6,269.76 6,269.76 43
144 29 July 2005 6,451.20 6,451.20 44
145 29 July 2005 14,154.00 14,154.00 45
146 2 August 2005 13,533.91 13,533.91 46
147 2 August 2005 16,500.04 16,500.04 47
150 3 August 2005 8,998.60 8,998.60 48
151 3 August 2005 13,685.00 13,685.00 49
152 3 August 2005 18,236.40 18,236.40 50
153 3 August 2005 14,618.34 14,618.34 51
154 3 August 2005 19,643.27 19,643.27 52
155 3 August 2005 17,032.20 17,032.20 53
156 3 August 2005 14,976.21 14,976.21 54
159 3 August 2005 16,160.85 16,160.85 55
160 3 August 2005 13,650.00 13,650.00 56
161 3 August 2005 9,900.00 9,900.00 57
162 3 August 2005 19,216.56 19,216.56 58
163 4 August 2005 16,736.60 16,736.60 59
164 4 August 2005 19,226.35 19,226.35 60
165 4 August 2005 15,712.50 15,712.50 61
166 4 August 2005 18,384.40 18,384.40 62
167 4 August 2005 23,494.63 23,494.63 63
168 4 August 2005 16,151.40 16,151.40 64
169 4 August 2005 13,746.75 13,746.75 65
170 4 August 2005 7,491.60 7,491.60 66
171 4 August 2005 13,860.00 13,860.00 67
174 5 August 2005 16,980.00 16,980.00 68
175 5 August 2005 17,320.60 17,320.60 69
176 5 August 2005 6,026.72 6,026.72 70
177 5 August 2005 14,830.20 14,830.20 71
178 5 August 2005 19,620.90 19,620.90 72
180 9 August 2005 16,024.32 16,024.32 73
188 18 August 2005 17,062.40 17,062.40 74
189 18 August 2005 15,444.00 15,444.00 75
190 18 August 2005 15,444.00 15,444.00 76
191 18 August 2005 12,970.08 12,970.08 77
192 19 August 2005 16,239.20 16,239.20 78
193 19 August 2005 15,444.00 15,444.00 79
196 23 August 2005 15,444.00 15,444.00 80
197 23 August 2005 15,988.36 15,988.36 81
198 23 August 2005 14,892.48 14,892.48 82
200 25 August 2005 14,663.22 14,663.22 83
201 25 August 2005 15,444.00 15,444.00 84
202 25 August 2005 16,916.80 16,916.80 85
203 25 August 2005 16,525.08 16,525.08 86
204 25 August 2005 15,253.92 15,253.92 87
209 30 August 2005 16,914.56 16,914.56 88
210 30 August 2005 14,880.00 14,880.00 89
211 30 August 2005 16,948.80 16,948.80 90
212 30 August 2005 16,316.80 16,316.80 91
213 30 August 2005 17,372.52 17,372.52 92
216 5 September 2005 15,744.00 15,744.00 93
217 5 September 2005 16,846.08 16,846.08 94
218 5 September 2005 17,372.52 17,372.52 95
219 5 September 2005 16,948.80 16,948.80 96
220 5 September 2005 16,773.60 16,773.60 97
221 5 September 2005 18,008.10 18,008.10 98
229 14 September 2005 17,844.84 17,844.84 99
230 14 September 2005 15,119.00 15,119.00 100
231 14 September 2005 16,053.10 16,053.10 101
232 14 September 2005 14,759.50 14,759.50 102
233 14 September 2005 16,236.00 16,236.00 103
234 14 September 2005 16,236.00 16,236.00 104
235 14 September 2005 16,479.18 16,479.18 105
237 14 September 2005 12,582.70 12,582.70 106
277 28 November 2005 9,750.00 9,750.00 107
279 28 November 2005 7,290.00 7,290.00 108
280 28 November 2005 11,520.00 11,520.00 109
282 28 November 2005 6,600.00 6,600.00 110
283 28 November 2005 10,182.49 10,182.49 111
284 28 November 2005 15,087.50 15,087.50 112
289 29 November 2005 14,828.55 14,828.55 113

With respect to invoices nos. 58, 62 and 84, the sums owed according to the contract deviate from the sums contained in those invoices by EUR 1,228.50, EUR 977.90 and EUR 989.30, respectively. [Seller's Assignee] has stated without any objection by [Buyer] that the reason for these deviations is VAT, which has erroneously been invoiced in the three instances.

      9.1. [Seller's Assignee] has specifically indicated the individual deliveries, the invoices issued as well as the residual sums claimed by virtue of the present action in its letters (court file, 17 et seq.). With respect to [Buyer]'s payment on the owed sums, [Seller's Assignee] has submitted the following list, which has not been contested:

Invoice no. Date of invoice Sum owed (EUR) Sum paid (EUR) Remaining claim (EUR) Exhibit
58 9 June 2005 17,550.00 17,550.00 0.00 8
62 15 June 2005 13,970.00 13,790.00 180.00 34
63 15 June 2005 25,680.00 25,680.00 0.00 16
83 1 July 2005 14,701.80 14,701.80 0.00 16
84 1 July 2005 14,132.80 13,012.40 1,120.40 35
108 21 July 2005 5,889.93 1,306.40 4,583.53 36
109 21 July 2005 6,333.04 5,549.76 783.28 37
110 21 July 2005 6,241.20 5,662.80 578.40 38
111 21 July 2005 6,328.00 5,003.28 1,324.72 39
112 21 July 2005 6,891.40 5,897.92 993.48 40
113 21 July 2005 7,755.00 1,114.10 6,640.90 41
138 28 July 2005 6,576.30 376.00 6,200.30 42
143 29 July 2005 6,269.76 6,103.44 166.32 43
144 29 July 2005 6,451.20 4,696.44 1,754.76 44
145 29 July 2005 14,154.00 11,760.00 2,394.00 45
146 2 August 2005 13,533.91 5,901.14 7,652.77 46
147 2 August 2005 16,500.04 6,113.51 10,386.53 47
150 3 August 2005 8,998.60 7,127.55 1,871.05 48
151 3 August 2005 13,685.00 7,820.00 5,865.00 49
152 3 August 2005 18,236.40 9,844.30 8,392.10 50
153 3 August 2005 14,618.34 10,006.00 4,612.34 51
154 3 August 2005 19,643.27 1,082.04 18,561.23 52
155 3 August 2005 17,032.20 4,356.70 12,675.50 53
156 3 August 2005 14,976.21 1,027.29 13,948.92 54
159 3 August 2005 16,160.85 0.00 16,160.85 55
160 3 August 2005 13,650.00 4,188.75 9,461.25 56
161 3 August 2005 9,900.00 6,249.50 3,650.50 57
162 3 August 2005 19,216.56 0.00 19,216.56 58
163 4 August 2005 16,736.60 0.00 16,736.60 59
164 4 August 2005 19,226.35 4,848.60 14,377.75 60
165 4 August 2005 15,712.50 6,832.00 8,880.50 61
166 4 August 2005 18,384.40 1,787.00 16,597.40 62
167 4 August 2005 23,494.63 1,577.91 21,916.72 63
168 4 August 2005 16,151.40 5,958.50 10,192.90 64
169 4 August 2005 13,746.75 5,182.50 8,564.25 65
170 4 August 2005 7,491.60 4,924.00 2,567.60 66
171 4 August 2005 13,860.00 3,207.30 10,652.70 67
174 5 August 2005 16,980.00 5,766.00 11,214.00 68
175 5 August 2005 17,320.60 8,250.40 9,070.20 69
176 5 August 2005 6,026.72 0.00 6,026.72 70
177 5 August 2005 14,830.20 5,538.35 9,291.85 71
178 5 August 2005 19,620.90 3,516.00 16,104.90 72
180 9 August 2005 16,024.32 7,106.93 8,917.39 73
188 18 August 2005 17,062.40 4,655.00 12,406.40 74
189 18 August 2005 15,444.00 4,306.00 11,138.00 75
190 18 August 2005 15,444.00 4,717.44 10,726.56 76
191 18 August 2005 12,970.08 1,350.00 11,620.08 77
192 19 August 2005 16,239.20 7,581.20 8,658.00 78
193 19 August 2005 15,444.00 8,306.00 7,138.00 79
196 23 August 2005 15,444.00 7,318.50 8,125.50 80
197 23 August 2005 15,988.36 8,906.93 7,081.43 81
198 23 August 2005 14,892.48 1,850.00 13,042.48 82
200 25 August 2005 14,663.22 1,575.20 13,088.02 83
201 25 August 2005 15,444.00 7,306.00 8,138.00 84
202 25 August 2005 16,916.80 2,018.00 14,898.80 85
203 25 August 2005 16,525.08 4,096.41 12,428.67 86
204 25 August 2005 15,253.92 7,096.00 8,157.92 87
209 30 August 2005 16,914.56 4,074.09 12,840.47 88
210 30 August 2005 14,880.00 7,502.00 7,378.00 89
211 30 August 2005 16,948.80 8,255.90 8,692.90 90
212 30 August 2005 16,316.80 114.90 16,201.90 91
213 30 August 2005 17,372.52 2,194.92 15,177.60 92
216 5 September 2005 15,744.00 1,024.25 14,719.75 93
217 5 September 2005 16,846.08 4,055.49 12,790.59 94
218 5 September 2005 17,372.52 2,150.25 15,222.27 95
219 5 September 2005 16,948.80 7,900.00 9,048.80 96
220 5 September 2005 16,773.60 5,397.60 11,376.00 97
221 5 September 2005 18,008.10 0.00 18,008.10 98
229 14 September 2005 17,844.84 2,104.00 15,740.84 99
230 14 September 2005 15,119.00 534.25 14,584.75 100
231 14 September 2005 16,053.10 1,254.44 14,798.66 101
232 14 September 2005 14,759.50 657.10 14,102.40 102
233 14 September 2005 16,236.00 6,000.00 10,236.00 103
234 14 September 2005 16,236.00 7,029.80 9,206.20 104
235 14 September 2005 16,479.18 2,129.30 14,349.88 105
237 14 September 2005 12,582.70 9,460.00 3,122.70 106
277 28 November 2005 9,750.00 880.20 8,869.80 107
279 28 November 2005 7,290.00 0.00 7,290.00 108
280 28 November 2005 11,520.00 0.00 11,520.00 109
282 28 November 2005 6,600.00 0.00 6,600.00 110
283 28 November 2005 10,182.49 127.34 10,055.15 111
284 28 November 2005 15,087.50 8,410.00 6,677.50 112
289 29 November 2005 14,828.55 0.00 14,828.55 113
Total: 1,193,128.96 412,755.12 780,372.84  

      9.2. The value of the remaining claims amounts to EUR 780,372.84. [Seller's Assignee] has stated that additional payments made by [Buyer] of EUR 32,928.23 -- which could not be allocated to particular invoices -- were to be deducted (court file, 59). [Buyer] has not made any submission with reference to this statement. Therefore, the deduction of EUR 32,928.23 leads to a residual claim against [Buyer] of EUR 747,444.61.

      9.3. [Seller's Assignee] further acknowledges another deduction by EUR 35,783.90. This sum is intended to reflect lacks of conformity with respect to deliveries nos. 188, 190, 231, 232, 279, 280, 282 and 289 (cf. court file, 9). [Seller] and [Buyer] had agreed that losses incurred as a result of lacks of conformity should be compensated for by the end of the fruit season. This has not been contested by [Buyer] as such. However, [Buyer] has asserted that the goods delivered by [Seller] had not been in conformity with the contract and that corresponding notices of non-conformity had been given (court file, 96, 169 et seq., 172), inter alia via e-mail (court file, 97 and 98).

            9.3.1. Art. 39(1) CISG provides that 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. The [Buyer] bears the burden to prove that the notice has been given in the appropriate manner and within the required time. Thus, it needs to demonstrate the time when the non-conformity has been discovered, identify time and exact addressee of the notice of non-conformity and also identify how the non-conformity had been described (Brunner, Art. 39 margin number 27 with further references).

            9.3.2. The flat allegation by [Buyer] -- namely that numerous deliveries had been notified as lacking conformity with the contract -- is not a sufficient substantiation (see above, at 6.2.1.3.). [Buyer] has failed to identify individual deliveries and the specific lacks of conformity in its statement of defense. Moreover, [Buyer] has not offered evidence for its assertion in the appropriate manner (cf. above, at 3). [Buyer] has not managed to prove that the goods had in fact been defective and that it had also notified them in the required manner. Therefore, its defense cannot be considered. This result remains unchanged despite the fact that [Seller's Assignee] has made particular references in its counterplea to notices of non-conformity which had been submitted by [Buyer] in a file jacket but which have not been individually identified by the latter. In any event, the notices mentioned by [Seller's Assignee] had not been given within the required time. Neither the submissions of [Seller's Assignee] nor the documents submitted by it indicate anything to the contrary.

            9.3.3. Additionally, the aforementioned legal assessment would remain unaffected even if [Seller] and [Buyer] had concluded commission contracts. This follows from the reasoning (above, at 7) with reference to Art. 428(1) OR [*].

            9.3.4. Considering the deduction acknowledged by [Seller's Assignee], the unsettled claim amounts to EUR 711,660.71 (EUR 747,444.29 EUR 35,783.90).

      9.4. [Seller's Assignee] argues that [Buyer] also owed bank charges of EUR 454.31 which had arisen out of individual transfers of money. This sum has been calculated as the difference between the amounts that had been transferred by [Buyer] according to [Seller's Assignee] (EUR 469,208.85) and the amounts that were actually credited in favor of [Seller] (EUR 468,754.54).

            9.4.1. The sum of [Buyer]'s payments asserted by [Seller's Assignee] via the submission of account statements (court file, 10 et seq.) solely lead to a total transferred sum of EUR 451,028.75 or the sum of EUR 450,592.72 that has actually been credited, respectively. This is evidenced by the following list:

Date of payment Sum paid

(EUR)

Sum received

(EUR)

[Seller's Assignee]'s exhibit
13 July 2005 13,790.00 13,776.21 17
13 July 2005 13,012.80 12,999.79 17
20 July 2005 17,550.00 17,532.45 9
26 July 2005 25,680.00 25,654.32 17
28 July 2005 14,701.80 14,687.10 17
4 August 2005 37,559.10 37,521.54 18
15 August 2005 18,237.55 18,219.31 20
19 August 2005 16,838.00 16,821.16 22
24 August 2005 26,340.22 26,313.88 24
1 September 2005 22,319.28 22,296.96 26
6 September 2005 40,000.00 39,960.00 28
12 September 2005 20,000.00 19,980.00 28
14 September 2005 15,000.00 14,985.00 28
23 September 2005 45,000.00 44,955.00 28
4 October 2005 50,000.00 49,950.00 28
10 October 2005 40,000.00 39,960.00 28
25 October 2005 20,000.00 19,980.00 28
4 November 2005 15,000.00 15,000.00 28
Total: 451,028.75 450,592.72  

            9.4.2. It is not comprehensible on the basis of [Seller's Assignee]'s argument (court file, 10 et seq.) how the total amounts which are contained in the letters have been calculated. However, the submitted documents indicate that two invoices of [Seller] (no. 139 for EUR 18,180.00 and no. 142 for EUR 5,344) -- which have been introduced by [Seller's Assignee] only in its counterplea (court file, 131 et seq.) -- have already been paid by [Buyer]. [Seller's Assignee] has failed to prove the existence of these claims and the respective payments. Therefore, the relevant sums are calculated on the basis of the submitted and proven money transfers as well as the actual credits.

            9.4.3. The difference between what [Buyer] has actually paid and the sums which have been received by [Seller] does not amount to EUR 454.35 as has been alleged by [Seller's Assignee], but to EUR 436.03. Unless otherwise provided in the contract, the buyer is obliged to pay the costs of payment (Hager, in: Schlechtriem / Schwenzer, Art. 57 margin number 9). Therefore, the respective sum must be added to the unsettled total claim for EUR 711,660.39. Consequently, [Buyer] owes [Seller's Assignee] EUR 712,096.42.

      9.5. The Court allows [Seller's Assignee]'s first procedural request -- namely, that [Buyer] be ordered to pay EUR 712,114.72 -- to the extent of EUR 712,096.42.

10. [Claim for default interest]

[Seller's Assignee] also claims default interest on the primary claim. According to its first procedural request, interest of 9.17% has been claimed as of the relevant date (between 1 July 2005 and 31 December 2005), of 9.37% for the time between 1 January 2006 and 30 June 2006, of 9.95% for the time between 1 July 2006 and 31 December 2006 and so forth. The calculation should be based on the biannually published prime lending rate plus 8%.

      10.1. The interest claim arises at the time when the primary claim becomes mature. The time of maturity must primarily be determined according to an agreement by the parties to that effect. In the absence of a particular agreement, maturity is governed by the provisions of the CISG (Brunner, Art. 78 margin number 4). If the parties have not reached a particular agreement, claims which arise out of sales contracts will become mature in accordance with Art. 58 et seq. CISG. Art. 58(1) and (3) in conjunction with Art. 59 CISG provide that the purchase price must be paid without the need for any request or compliance with any formality on the part of the seller as soon as he places the goods at the buyer's disposal and as soon as the buyer has had an opportunity to examine the goods.

The default interest rate itself is not provided by the CISG. It must be determined in accordance with the domestic law which applies pursuant to the rules of private international law of the forum state (BGE [*] 4C.197/1998, judgment of 28 October 1998, at E.6 with further references = <www.cisg-online.ch> Nr. 413; Bacher, in: Schlechtriem / Schwenzer, Art. 78 margin numbers 27 and 32). Under Art. 118(1) IPRG [*], the Hague Convention on the Law Applicable to International Sale of Goods of 15 June 1995 applies to contracts for the sale of goods (cf. above, at 4.2). Art. 3(1) Hague Convention states that the sale is governed by the domestic law of the country in which the vendor has his habitual residence at the time when he receives the order. Since [Seller] had its habitual residence in Germany at the relevant point in time, the interest rate is to be determined pursuant to German law.

Recourse must be taken to the general rule on the applicable interest rate comprised by German law. Since the Act on the Modernization of the German Law of Obligations has entered into force on 1 January 2002, the default interest rate is dynamically set at 8% above the current prime lending rate ( 352(1)(1) HGB [*] in conjunction with 288(2) BGB [*]). The prime lending rate is being adjusted on 1 January and 1 July of each year by the percentage points by which its reference figure has increased or decreased in relation to the previous adjustment of the prime lending rate. The applicable reference figure is the interest rate of the most recent primary refinancing operation exercised by the European Central Bank prior to the first calendar day of the respective term ( 247(2) BGB; cf. also the index of current interest rates, available at <http://www.bundesbank.de)>. The prime lending rate was set at 1.17% concerning the second term of 2005 (which leads to a default interest rate of 9.17% for commercial transactions), 1.37% concerning the first term of 2006 (default interest rate: 9.37%), 1.95% concerning the second term of 2006 (default interest rate: 9.95%), 2.70% concerning the first term of 2007 (default interest rate: 10.70%), 3.19% concerning the second term of 2007 (default interest rate: 11.19%), 3.32% concerning the first term of 2008 (default interest rate: 11.32%) and 3.19% concerning the current second term of 2008 (default interest rate: 11.19%).

      10.2. [Seller's Assignee] argues that [Seller] and [Buyer] had stipulated a time limit for payment of 30 days. [Buyer] has not submitted any response with regard to this statement. [Seller's Assignee] further asserts that the time limit of 30 days was intended to commence three days after the sending of the invoices in each instance. Once again, [Buyer] has not made any response with reference to this argument.

            10.2.1. In the absence of an agreement between the parties, the claim for the purchase price as well as the obligation of the buyer to pay default interest will become mature immediately, which is when the goods have been put at the buyer's disposal and after an appropriately short period of time for examination has elapsed. Since it is undisputed that -- in each installment -- the goods had been delivered a couple of days prior to the issuing of the corresponding invoice, the relevant date initiating the time for which default interest is due as well as the time limit of 30 days as asserted by [Seller's Assignee] have to be taken into account by the Court. On the basis of the principle of procedural law that the parties will determine the subject matter of disputes in civil law (Dispositionsmaxime, 75(2) ZPO [*]), [Buyer] cannot be ordered to pay more interest than what has been claimed by [Seller's Assignee].

            10.2.2. It is undisputed that [Seller] has sent the invoices to [Buyer] by way of six letters. It has posted the invoices nos. 58-84 on 5 July 2005, nos. 108-147 on 2 August 2005, nos. 150-180 on 16 August 2005, nos. 188-198 on 24 August 2005, nos. 200-221 on 5 September 2005 and, finally, nos. 229-289 on 29 November 2005. Based on the relevant general provisions of the BGB [*] concerning the calculation of the time allowed ( 186 et seq. BGB) and [Seller's Assignee]'s assertions (which have remained without objection -- cf. above, at 10.2.1), default interest is owed by [Buyer] as follows: Default interest is owed as of 9 August 2005 with respect to invoices nos. 58-84, as of 6 September 2005 with respect to invoices nos. 108-147, as of 20 September 2005 with respect to invoices nos. 150-180, as of 27 September 2005 with respect to invoices nos. 188-198, as of 11 October 2005 with respect to invoices nos. 200-221 and as of 5 January 2006 with respect to invoices nos. 229-289 (cf. the corresponding assertion by [Seller's Assignee], court file, 67).

      10.3. [Buyer] has not contested the allocation of individual payments to the individual invoices as presented by [Seller's Assignee]. It is also undisputed that a sum of EUR 32,928.23 could not be allocated to any specific invoice. EUR 436.03 are to be deducted from this amount, instead of EUR 454.31 as asserted by [Seller's Assignee] (see above, at 9.4.3). For the purpose of calculating the claim for default interest, [Seller's Assignee] credits the resulting sum against the residual and unsettled claims in their order of maturity. Since [Seller's Assignee] cannot be granted a claim in excess of what it has actually claimed in the present proceedings ( 75(2) ZPO [*]), the Court is bound by its submission. Given that the costs of payment have in fact been lower than alleged by [Seller's Assignee], only EUR 32,492.20 can be credited against the residual and unsettled claims in their order of maturity.

Based on the relevant interest rates mentioned above and the respective dates at which default interest have become due for the individual installments, [Buyer] is obliged to pay default interest in the following amount.

            10.3.1. [Seller's Assignee] states that EUR 1,300.40 had remained unpaid with respect to invoices nos. 58-84. With EUR 32,492.20 being credited against this residual claim, a sum of EUR 31,191.80 would remain unallocated. Since [Seller's Assignee] assumes that the outstanding claim had been fully absorbed, it does not claim any default interest.

            10.3.2. [Seller's Assignee] further claims that a sum of EUR 43,458.99 had remained unpaid under invoices nos. 108-147. The unallocated sum was to be credited against this sum. [Seller's Assignee] goes on to state that the resulting amount entitled it to claim default interest of EUR 935.45 for the time until 30 June 2006 (court file, 67). Based on the actual unallocated sum, a residual claim against [Buyer] for EUR 12,267.19 remains with respect to the invoices mentioned above. [Buyer] owes default interest of 9.17% on this sum as of 6 September 2005 and until 31 December 2005 (117 days), which means an interest claim for EUR 360.58. For the time between 1 January 2006 and 30 June 2006 (181 days), default interest of 9.37% is owed, which is equivalent to EUR 596.99. The total claim for default interest with respect to invoices nos. 108-147 amounts to EUR 930.57.

            10.3.3. A residual claim for EUR 285,527.07 has remained unpaid by [Buyer] under invoices nos. 150-180. [Seller's Assignee] asserts that it would be entitled to default interest of EUR 20,722.67 for the time until 30 June 2006 (court file, 67). According to the calculation applied by the Court, [Buyer] owes default interest of 9.17% for the time between 20 September 2005 and 31 December 2005 (103 days), which amounts to EUR 7,388.58. Additionally, default interest of 9.37% is owed for the time between 1 January 2006 and 30 June 2006 (181 days), which leads to a claim for EUR 13,266.99. The total interest claim amounts to EUR 20,655.57.

            10.3.4. Invoices nos. 188-198 indicate a residual claim against [Buyer] of EUR 89,936.45. According to [Seller's Assignee]'s argument, [Buyer] owed default interest of EUR 6,321.13 on this amount with respect to the time until 30 June 2006. The Court finds that [Buyer] would have been obliged to pay default interest of 9.17% for the time between 27 September 2005 and 31 December 2005 (96 days). The resulting claim would have amounted to EUR 2,169.11. With relevance for the time between 1 January 2006 and 30 June 2006 (181 days), a default interest rate of 9.37% would apply and result in a claim for EUR 4,178.89. Thus, the total claim under these invoices would have amounted to EUR 6,348.01. However, the Court is bound under 75(2) ZPO to allow an interest claim of not more than EUR 6,321.13 because [Seller's Assignee] has not claimed more.

            10.3.5. A residual claim for EUR 198,167.79 has remained unpaid concerning the invoices nos. 229-289. [Seller's Assignee] has submitted that [Buyer] owed default interest in the amount of EUR 13,423.33 until 30 June 2006. The Court has calculated that [Buyer] owes default interest of 9.17% on the said amount for the time between 11 October 2005 and 31 December 2005 (82 days), which means a claim for EUR 4,082.47. For the time between 1 January 2006 and 30 June 2006 (181 days) an interest rate of 9.37% applies and results in a claim for EUR 9,207.85. The total interest claim arising out of these invoices amounts to EUR 13,290.32.

            10.3.6. Finally, a residual claim for EUR 161,982.43 remains unpaid according to the invoices nos. 229-289. In this respect, [Seller's Assignee] has applied a deduction of EUR 35,783.90, which in turn has been reduced by the agreed payment reflecting lacks of conformity by the end of the fruit season. [Seller's Assignee] claims that [Buyer] owed default interest of EUR 5,748.16 on the resulting claim for EUR 126,198.53 until 30 June 2006. Actually, [Buyer] owes default interest for the time between 5 January 2006 and 30 June 2006 (177 days) at a rate of 9.37%. This leads to an interest claim of EUR 5,734.21.

            10.3.7. Consequently, the total default interest claim of [Seller's Assignee] against [Buyer] amounts to EUR 46,931.80 for the time until 30 June 2006.

            10.3.8. Additionally, [Seller's Assignee] claims that [Buyer] owed default interest of 9.95% on EUR 712,114.72 with respect to the time between 1 July 2006 and 31 December 2006. The Court has ascertained that default interest of 9.95% is owed by [Buyer] only on the actual primary claim for EUR 712,096.42.

      10.4. Therefore, [Buyer] is obliged to pay default interest of EUR 46,931.80 with regard to the time until 30 June 2006. [Seller's Assignee]'s additional claim for default interest is allowed by the Court as covered by its first procedural request. Thus, [Buyer] is obliged to pay default interest of 9.95% on the primary claim for EUR 712,096.42 with respect to the time between 1 July 2006 and 31 December 2006. For the time since 1 January 2007, this primary claim is subject to default interest of 8% above the biannually adjusted German prime lending rate.

      10.5. Moreover, default interest would have been owed on the unsettled payment claims even if commission contracts had been concluded (cf. above, at 7). Whether [Buyer] would have been in default and therefore obliged to pay default interest must be determined according to Art. 102(1) OR [*]. [Seller's Assignee] has failed to put forward any argument as to whether the usual bank discount rate at the place of payment exceeded 5% (cf. Art. 104(3) OR) or whether a particular agreement existed between the parties (cf. Art. 104(2) OR). As a result, the interest rate of 5% would apply as provided by Art. 104(1) OR. For the questions of default and the primary claims which would have been subject to default interest, reference can be made to the factual reasoning set out above concerning the obligation to pay interest under German law. Even if the existence of commission contracts was assumed, [Buyer] would be obliged to pay default interest of EUR 25,220.95 for the time until 30 June 2006 and 5% on EUR 712,096.42 since 1 July 2006.

11. [Buyer's cross-action]

[Buyer]'s cross-action (court file, 95) has been filed against [Seller]. Since [Seller's Assignee] is not the debtor of claims asserted by virtue of this cross-action, it has to be dismissed. [Seller's Assignee] has stated in its statement of defense to the cross-action that the asserted claims could only be exercised by way of a set-off (court file, 116). [Buyer] has expressly stated in its counterplea that the relevant claim were subject to a set-off against [Seller] (court file, 169). Although this statement must be understood in the light of good faith as a crediting and not as a set-off, it has been expressly directed against [Seller] and not against [Seller's Assignee]. However, [Seller] is not a party to the present proceedings. With [Seller's Assignee] not being the correct debtor, the cross-action is dismissed and may not be employed by [Buyer] in these proceedings in order to exercise a counterclaim.

In any case, [Buyer] has not sufficiently substantiated its argument (see above, at 6.2.1.3). Moreover, it has failed to offer evidence in the appropriate manner (see above, at 3). Thus, even if the crediting had been declared vis-à-vis [Seller's Assignee], the Court would have denied its existence in the absence of convincing proof.

12. [Enforcement of Seller's Assignee's claim]

[Seller's Assignee] has claimed by virtue of its second procedural request that the debt enforcement no. 76071 pending at the Office for the Enforcement of Debts in B. should be allowed with definite effect in its favor amounting to Sfr. 1,125,141.25 (EUR 712,114.72; exchange rate of Sfr. 1.58 per EUR of 19 October 2006) plus interest.

       12.1. The Court cannot allow the requested debt enforcement proceedings to continue with definite effect because the Commercial Court does not have jurisdiction over this subject matter. However, the Court interprets [Seller's Assignee]'s request under good faith as a request that the objection which has been filed against this debt enforcement should be removed (this being a subject matter over which the Commercial Court exercises its jurisdiction).

       12.2. [Seller's Assignee] has asserted that [Seller] initiated enforcement against [Buyer] for Sfr. 1,184,536.00 (EUR 760,390.31) plus 5% interest since 4 December 2005 by virtue of a payment order dated 10 May 2005. [Buyer] has filed an objection. With regard to the enforcement proceedings, [Seller's Assignee] has stepped into the legal position of [Seller] which the latter had been in at the time of the assignment (BGE [*] 91 III 10; Acocella, in: Kommentar zum Bundesgesetz über Schuldbetreibung und Konkurs, vol. 1, Basel / Geneva / Munich 1998, Art. 38 margin number 32). [Seller's Assignee] -- being the new creditor -- is entitled to claim that the objection filed against the pending enforcement be removed.

      12.3.  12.3.1. The objection can be removed only to the extent that the existence of the underlying claim has been confirmed with legally binding effect. While the payment order has to indicate the enforcement sum in Swiss francs (Art. 67(1) No. 3 SchKG [*]), [Buyer] owes an amount in a foreign currency. Therefore, the objection which has been filed against the enforcement can be removed only after the claim has been converted into Swiss francs (Art. 67(1) No. 3 SchKG). The relevant exchange rate is the rate which applied at the time when the enforcement was initiated (Rüetschi / Stauber, Die Durchsetzung von Fremdwährungsforderungen in der Praxis, BlSchK [*] 2006, 41 et seq. (50 et seq.)). Fluctuations of the exchange rate which have occurred between the commencement of the enforcement proceedings and its confirmation are irrelevant. This is due to the fact that the creditor has the possibility to request a currency conversion once again at the time when continuation will be requested (Art. 88(4) SchKG).

                  12.3.2. As stated before, the objection against the debt enforcement can be removed only to the extent that the existence of the underlying claim has been confirmed (this being Sfr. 1,194,536.00). Subject to an interpretation in the light of good faith, [Seller's Assignee] has merely requested by virtue of its second procedural request that the objection be removed in the extent of Sfr. 1,125,141.25 plus interest. Since the awarded sum may not exceed the sum claimed by the party ( 75(2) ZPO [*]), the lower amount claimed by [Seller's Assignee] constitutes another upper limit. Thus, the owed sum of EUR 712,096.42 (see above, at 9.5) must be taken into account. In order to exercise the currency conversion, the exchange rate of 9 May 2006 is relevant instead of the exchange rate of 19 October 2006 as proposed by [Seller's Assignee]. This applies as the relevant point in time is the day when the request for enforcement has been filed. The payment order states that on 9 May 2006 1 EUR was worth Sfr. 1.5572. [Buyer] has not submitted any objection thereto. Based on the owed sum of EUR 712,096.42 and with due consideration of the upper limits mentioned above, the objection against the debt enforcement is to be removed to the extent of Sfr. 1,109,303.80. The reasoning concerning the primary claim applies similarly to the claim for interest. While more interest could have been claimed by [Seller's Assignee], the upper limit is determined by the amount actually claimed. Consequently, the objection filed against the debt enforcement no. 76071 pending at the Office for the Enforcement of Debts in B. (payment order of 10 May 2006) is removed to the extent of Sfr. 1,109,303.80 (EUR 712,096.42) plus 5% interest payable since 4 December 2005.

      12.4. Despite the provision of Art. 68(2) SchKG, a court is generally entitled to render a judgment which obliges one of the parties to bear the costs of the enforcement (BGE [*] 5P.123/2006, at 3). If all legal requirements are fulfilled, [Seller's Assignee]'s first procedural request will be allowed by the Court insofar as [Buyer] should be ordered to pay Sfr. 410.00 as the costs of the payment order. However, this requires that [Seller's Assignee] has actually incurred these costs. As the enforcement proceedings have been initiated by [Seller] in the present case, the latter was obliged to pay these costs. [Seller's Assignee] has not made any reasonable statement which would indicate that it had incurred the costs of the payment order instead of [Seller]. Therefore, this part of [Seller's Assignee]'s first procedural request is dismissed.

13. [Costs and expenses]

Since [Seller's Assignee]'s procedural request has been dismissed only insignificantly in relation to what has been allowed, [Buyer] is obliged to bear all costs of the proceedings ( 112(3) ZPO). For the purpose of determining the value of the present dispute, claims in foreign currencies are to be converted into Swiss francs based on the exchange rate of the day when the action was filed (BGE 63 II 34 et seq.; Bühler, in: Bühler / Edelmann / Killer, 16/17 margin number 13). The action has been filed before the Commercial Court on 2 November 2006, which leads to a relevant exchange rate of Sfr. 1.58 per EUR. Consequently, the present dispute has a value of Sfr. 1,125,141.25. [Buyer] is ordered to pay court fees of Sfr. 24,271.00. [Buyer] is further ordered to compensate [Seller's Assignee] for its expenses in relation to the proceedings of Sfr. 77,389.65.

COURT ORDER AND FINAL JUDGMENT

The Commercial Court renders the following court order:

The request filed on 24 October 2008 to correct the minutes of the party briefing at p. 17, 5th paragraph ("This means that we paid EUR 0.65 per kilogram and that we invoiced EUR 0.65 against company M. AG") is allowed. The minutes are changed to:

"This means that we paid EUR 0.65 per kilogram and that we invoiced EUR 0.80 against company M. AG."

The Commercial Court renders the following judgment:

  1. [Seller's Assignee]'s action is partially allowed. [Buyer] is ordered to pay EUR 712,096.42 plus interest in the amount of EUR 46,391.80 with respect to the time until 30 June 2006. Moreover, the primary claim for EUR 712,096.42 is subject to interest of 9.95% for the time between 1 July 2006 and 31 December 2006 and of 8% above the applicable prime lending rate payable since 1 January 2007.

  2. The objection which has been filed against the debt enforcement no. 76071 pending at the Office for the Enforcement of Debts in B. is removed to the extent of Sfr. 1,109,303.80 plus 5% interest payable since 4 December 2005.

  3. [Buyer]'s cross-action is dismissed.

  4. The court fees are set at Sfr. 27,905 and are to be borne by [Buyer].

  5. . [Buyer] is ordered to compensate [Seller's Assignee] for expenses incurred in relation to the proceedings of Sfr. 77,389.65.

The judgment is to be served on [Seller] and [Buyer].

The Court advises the parties of their right to appeal against this judgment (Arts. 72 et seq. and 90 et seq. BGG [*]). Within a time limit of 30 days after the serving of the judgment on the parties, an appeal may be filed before the Swiss Federal Supreme Court (Schweizerisches Bundesgericht). The statement of appeal must be submitted in written or electronic form to the Swiss Federal Supreme Court. It must be drafted in one of the official languages and must contain a reasoned legal claim, indicate the items of evidence and bear a signature or acceptable electronic signature. The reasoned submission must indicate in a concise manner how and why the contested decision was rendered in violation of the law (Arts. 95 et seq. BGG). The appellant has to submit any relevant documents, provided that these are in its possession. Moreover, a copy of the contested decision must be submitted, as well (Art. 42 BGG).


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Spain is referred to as [Seller's Assignee] and Defendant of Switzerland is referred to as [Buyer]. Company T. of Germany is referred to as [Seller]. Amounts in the uniform European currency (Euro) are indicated as [EUR]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGE = Bundesgerichtsentscheidung [Reported decisions of the Swiss Federal Supreme Court]; BGG = Bundesgerichtsgesetz [Swiss Federal Supreme Court Act]; BlSchK = Blätter für Schuldbetreibung und Konkurs [Swiss law journal]; GmbHG = Gesetz betreffend die Gesellschaften mit beschränkter Haftung [German Act Concerning Limited Liability Corporations]; HGB = Handelsgesetzbuch [German Commercial Code]; InsO = Insolvenzordnung [German Act on Insolvency]; IPRG = Bundesgesetz über das Internationale Privatrecht [Swiss Code on the Conflict of Laws]; OR = Obligationenrecht [Swiss Code on the Law of Obligations]; SchKG = Bundesgesetz über Schuldbetreibung und Konkurs [Swiss Law on Debt Enforcement and Bankruptcy]; ZPO = Zivilprozessordnung [Code on Civil Procedure of the Swiss Canton of Aargau].

** 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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