Germany 11 November 2009 District Court Stuttgart (Packaging machinery case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/091111g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 39 O 75/09 KfH
CASE HISTORY: Unavailable
SELLER'S COUNTRY: [-] (plaintiff)
BUYER'S COUNTRY: [-] (defendant)
GOODS INVOLVED: Packaging machinery
APPLICATION OF CISG: Yes
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 database <http://globalsaleslaw.com/content/api/cisg/urteile/2018.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
11 November 2009 [39 O 75/09 KfH]
Translation [*] by Andrea Vincze [**]
Following an oral hearing on 7 October 2009, the 39th Chamber for Commercial Matters at the Stuttgart District Court, Dr. Brenner, Presiding Judge, announced the following judgment:
Amount in dispute: EUR 6,562.00
FACTS OF THE CASE AND POSITION OF THE PARTIES
[Seller] is suing [Buyer] for payment of the purchase price for a sale of goods.
In the course of an ongoing business relationship, [Seller] delivered to [Buyer] packaging machines. [Seller] is suing [Buyer] for the purchase price of EUR 6,562.00 that was billed in six invoices between March and June 2009.
[Seller] argues that the deliveries took place in conformity with the contract, they were free from defects, and [Buyer] had not communicated any specific objections. Therefore, [Buyer] did not comply with its duty to examine the goods and notify [Seller] of any defects. [Buyer] is not entitled to file any counterclaims for set-off.
[Seller] requests the court to order [Buyer] to pay to [Seller] EUR 8,562.00 plus interest at the base rate plus 8 percent from 16 July 2009.
[Buyer] requests the court to dismiss the [Seller]'s claim.
[Buyer] argues that it is entitled to suspend its duty to pay the purchase price because since September 2008 several complaints have accumulated regarding the packaging machines delivered by [Seller], in particular, regarding frequent defects of the circuit board, the quills, the plastic grip and, most importantly, the sliding blade of the machine. These defects had immediately been communicated to [Seller], yet [Seller] refused to acknowledge the defects. By that time, [Buyer] incurred damages in the amount of EUR 2,578.87, regarding which a request for set-off was asserted.
For the detailed facts of the case and the arguments of the parties, the court refers, in particular, to the written documents exchanged between the parties and the attachments thereto.
REASONS FOR THE DECISION
The [Seller]'s claim is admissible and justified.
I. [Seller] has a claim against [Buyer] for payment of the purchase price of the packaging machines delivered, in the amount of EUR 6,562.00. That claim is undisputed (Art. 53 CISG).
[Buyer] cannot raise any objection to the latter, in particular, it cannot refer to an objection [regarding poor performance] under Art. 71 CISG.
Thus, there is no specific argument as to which defect concerned exactly which one of the deliveries. Therefore, there is no specific argument as to which [goods] delivered were examined and when such examination took place, and, where applicable, when the clients complained, and when [Buyer] communicated the respective defects and claims to [Seller].
[Buyer] is not entitled to enforce its counterclaims in the amount of EUR 2,578.78.
Based on the grounds stated above, [Buyer] did not provide any evidence regarding its disputed claims.
II. The decision on the costs is governed by Art. 91 ZPO.
The decision on enforcement by provisional measures is governed by Art. 709 ZPO.
The determination of the amount in dispute is based on Art. 63(2) GKG in connection with Art. 3 ZPO.
Regarding [Buyer]'s dismissed written submission dated 5 November 2009, the reopening of the oral hearing was not authorized under Art. 296(a), in comparison with Arts. 283, 156 and 139 (5) ZPO.
Presiding Judge at the District Court
* All translations should be cross-checked against the original text. For purposes of this translation, Plaintiff is referred to as [Seller] and Defendant is referred to as [Buyer].
** Andrea Vincze is a Fellow of the Institute of International Commercial Law of Pace University School of Law. She received her law degree from the University of Miskolc, Hungary, and her LL.M. at Pace Law School. She is working on her Ph.D. on ICSID arbitration, and is researching international commercial law and ADR.Go to Case Table of Contents