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CISG CASE PRESENTATION

Germany 2 April 2009 Appellate Court Hamm (Automobile case)
[Cite as: http://cisgw3.law.pace.edu/cases/090402g1.html]

Primary source(s) of information for case presentation: Ulrich Schroeter

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Case identification

DATE OF DECISION: 20090402 (2 April 2009)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 28 U 107/08

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

CASE HISTORY: 1st instance Landgericht Bielefeld (1 O 84/08) 10 July 2008

SELLER'S COUNTRY: Germany

BUYER'S COUNTRY: Finland

GOODS INVOLVED: Automobile


IHR headnote

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."

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 2 ; 6 ; 7 ; 10 ; 25 ; 35 ; 38 ; 39 ; 40 ; 49 ; 74 ; 81 ; 92 ; 94

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.globalsaleslaw.com/content/api/cisg/urteile/1978.pdf>; Internationales Handelsrecht (2/2010) 59-63

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated May 6, 2010
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