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CISG CASE PRESENTATION

Germany 7 April 2009 District Court Potsdam (Pharmaceutical implements) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/090407g1.html]

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

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Case identification

DATE OF DECISION: 20090407 (7 April 2009)

JURISDICTION: Germany

TRIBUNAL: LG Potsdam [LG = Landgericht = District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 6 O 171/08

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Turkey (defendant)

GOODS INVOLVED: Pharaceutical implements


IHR headnote

Reproduced from Internationales Handelsrecht (5/2009) 205

"Pre-procedural lawyer's fees may be claimed under Article 74 CISG."

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 74 [Also cited: Articles 11 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

74C [Other damages issues: pre-procedural attorneys' fees]

Descriptors: Damages ; Collection costs

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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): Click here for German text of case; see also Internationales Handelsrecht (5/2009) 205

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

District Court (Landgericht) Potsdam

7 April 2009 [6 O 171/08]

Translation [*] by Veit Konrad [**]

FACTS OF THE CASE

Plaintiff [Seller] seeks payment of the purchase price that has not yet been squared by Defendant [Buyer]. Plaintiff [Seller], of Germany, is a global distributor of various pharmaceutical [...] compounds and implements [...]. Defendant [Buyer] is a trader of the named products, seated in Istanbul, Turkey. After the parties had entered into negotiations that had lead to the conclusion of a framework agreement [...], [Seller] on several occasions delivered various pharmaceutical implements [...] to [Buyer]. [Seller] invoiced these deliveries as follows:

[...]

Thereafter [Seller] issued several reminders for payment; the last reminder was sent per collection letter of its attorney dated 3 April 2008. Yet, [Buyer] did not pay. [...]

REASONING

[Seller]'s claim is well founded on its conclusive submission of facts. Therefore, the case was to be decided by way of a judgment by default following the written proceedings.

[Seller]'s claim for payment is founded on the sales contracts concluded by the parties, and on Art. 53 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) (hereinafter referred to as the Convention). The parties had effectively concluded the sales contracts. As stated under Art. 11 CISG, they did not need to observe any particular requirements as to the form of the agreements. Under the valid contracts, [Buyer] is obliged to pay the purchase price.

This conclusion holds true irrespective of the fact that Turkey had never become a Member State of the Convention. Art 1(1)(b) CISG stipulates that the Convention shall also apply when the rules of the private international law lead to the law of a Contracting State: As [Seller] has its place of business in Germany where it had also fulfilled its duty of characteristic performance under the contracts, the German Conflict of Laws provisions under Art. 28(1) of the German Introductory Act to the Civil Code (Einführungsgesetz zum bürgerlichen Gesetzbuche; EGBGB) define German law as the applicable substantive law. Consequently, the CISG [as part of German law] applies.

Due to Art. 74 CISG, [Seller] is also entitled to reimbursement of its attorneys' fees that were incurred before the trial. In this regard, [Seller] conclusively argued that [Buyer] had refused due payment despite all reminders. Hence, the employment of an attorney had been necessary.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For the purposes of this translation the German Plaintiff is referred to as [Seller], the Turkish Defendant is referred to as [Buyer].

** Veit Konrad has studied law at Humboldt University, Berlin since 1999. During 2001-2002 he spent a year at Queen Mary College, University of London, as an Erasmus student.

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Pace Law School Institute of International Commercial Law - Last updated October 30, 2009
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