Germany 2 April 2009 Appellate Court Hamm (Automobile case)
[Cite as: http://cisgw3.law.pace.edu/cases/090402g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 28 U 107/08
CASE HISTORY: 1st instance Landgericht Bielefeld (1 O 84/08) 10 July 2008
SELLER'S COUNTRY: Germany
BUYER'S COUNTRY: Finland
GOODS INVOLVED: Automobile
Reproduced from Internationales Handelsrecht (2/2010) 59
"A cross border sale of a used car between a car salesman located in Germany and a buyer from Finland is subject to the CISG if the seller could reasonably assume that the buyer was also an entrepreneur.
"1. The seller is not obliged to enquire whether the goods sold are to be used for consumer purposes or commercially.
"2. Agreeing on a place of jurisdiction in a Contracting State of the CISG does not derogate from the CISG.
"3. At least in cases where the parties are unaware of the true legal situation, pre-trial negotiations and submissions to the court solely based on non-unified national law do not constitute an implicit derogation from the CISG.
"4. A notice of non-conformity must be sufficiently specific so as to enable the seller to form an idea about the defect and to take the necessary steps.
"5. A notice of non-conformity given six weeks after the discovery of the defect is not reasonable in the sense of Art. 39 CISG.
"6. The avoidance of a contract subject to the CISG is ruled by the national law applicable as per the conflict of law rules of the forum state.
"7. Art. 74 CISG also encompasses the pre-trial legal fees."
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:
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.globalsaleslaw.com/content/api/cisg/urteile/1978.pdf>; Internationales Handelsrecht (2/2010) 59-63
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents