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Germany 14 May 2014 Federal Supreme Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/140514g1.html]

Primary source(s) of information for case presentation: CISG-online.ch website

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Case identification

DATE OF DECISION: 20140514 (14 May 2014)


TRIBUNAL: Bundesgerichtshof [Federal Supreme Court]

JUDGE(S): Dr. Frellesen, Dr. Hessel, Dr. Achilles, Dr. Schneider, Dr. Bünger


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

CASE HISTORY: 16th Civil Division of the Higher Regional Court of Cologne, 24 April, 2013

SELLER'S COUNTRY: Italy (defendant)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Coffee products

Classification of issues present



Key CISG provisions at issue: Article 53 [also cited: Articles 1 ; 4 ]

Classification of issues using UNCITRAL classification code numbers:


Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (German): JURION database <https://www.jurion.de/Urteile/BGH/2014-05-14/VIII-ZR-266_13?q=; see also CISG-online.ch database <http://www.globalsaleslaw.org/content/api/cisg/urteile/2493.pdf>

Translation (English): Text presented below


German: Schroeter & Nemeczek, Kurzkommentar zu BGH, 14.5.2014 - VIII ZR 266/13, Entscheidungen zum Wirtschaftsrecht (2014) 775-776

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Case text (English translation) [first draft]

The CISG Translation Network

Federal Supreme Court (Bundesgerichtshof)

14 May 2014 [case citation]

Translation [*] by William Euler [**]

  1. The [Seller], an Italian company, and the [Buyer], a German company which belongs to a group of six companies spread over different states. This group of companies sells coffee products trademarked "M." around the world and is interconnected on a shareholder as well as a management level. One of these companies is the Dubai-based M. General Trading LLC (hereinafter "M. LLC"). The director of the [Seller] and the director of the [Buyer] (a resident of Dubai) are, among others, shareholders and directors of M. LLC. The role this company plays in the handling of business relations of the group is disputed.
  2. The [Seller] claims 19 005.60 € plus interest for deliveries of coffee products made in 2011. The basis for this claim is undisputed. The [Buyer] wishes to counterclaim, inter alia, alleged claims in the following order:
  3. A claim one of its directors had transferred to the [Buyer] from his Swiss based personal company Ma. B Consulting for back interest for the period of 30 September 2009 until 20 January 2011 in the amount of 2 750.14 €. This interest arose from a loan made to the [Seller] in the amount of 70 000 €, which has already been repaid. The [Seller] disputes this loan and submits that it was only a liquidity assistance for the shareholders of the [Seller] and which was agreed upon on a shareholder level of the M. LLC. This could be proven by the "Shareholder Loan Contract". The payment was made through M. LLC and was repaid by this company. In the context of this repayment, it was agreed that no further claims arising from this loan would exist.
  4. A claim transferred by the Swiss based Ma. B Consulting, which allegedly paid off obligations of the [Seller] towards the Italian based C. S.r.l. in the amount of 28 809,20 €. From this claim, the [Buyer] claims from the [Seller] compensation of expenditures, which it wishes to partially set off in the amount of the claim raised by the [Seller]. The [Seller], however, claims that the Ma. B. Consulting AG did not only pay off the obligations of the [Seller] but also of M. LLC. Ma. B Consulting and M. LLC allegedly agreed that claims for compensation of these expenditures be directed only towards M. LLC. This claim, however, was not made due right away. Rather, by decision of the shareholders, the claim for expenditures was transformed into a loan. The [Seller] allegedly only had to repay these expenditures to M. LLC, which allegedly happened when rights arising from deliveries to third persons were transferred to M. LLC at the end of 2011.
  5. From a claim transferred by its director Ma. B, the [Buyer] claims repayment of a loan given in 2010 in the amount of 30.000 € and wishes to set off the two claims. The [Seller] disputes this loan and alleges that it was a loan made to M. LLC, of which a partial amount of 30.000 € was given directly to the [Seller] to settle a claim for purchase price that the [Seller] had towards the [Buyer].
  6. The present lawsuit was upheld in the lower courts. The lower courts did not deal with the set off claims because of lacking jurisdiction of the German courts in international matters. The [Seller] challenges this decision.
  7. The challenge is unsuccessful.
  8. The appellate court has stated:
  9. The undisputed claim of the [Seller] had not ceased by virtue of a set off with the alleged counterclaims. A set off with the three aforementioned counterclaims had not been necessary because of a lack of jurisdiction of the German courts according to § 322(2) ZPO. According to the jurisprudence of the Federal Supreme Court, in cases of lacking jurisdiction, a set off of claims is barred by procedure, if -- as is the case here -- the counterclaims are disputed and not connected to the main claim and the resolving of these disputes falls within the jurisdiction of the courts at the place of business of the [Seller]. Requiring international jurisdiction in these cases is not superseded by a decision of the European Court of Justice of 13 July 1995 (C-341/93), as this decision states that the requirements for setting of claims be set forth in national law, which in this case is the German law of procedure.
  10. The required international competence of German courts in regard to the counterclaims is not existent, with one exception. The claim for payment of the interest of the loan falls within the competence of Italian courts (which can be derived from Art. 2(1), Art. 60(1) EuGVVO. If one were to focus on the place of performance, one could -- in accordance with Art. 5(1) EuGVVO -- derive a competence of Swiss Courts. The competence of German courts could not even be derived from an analogous application of § 33 ZPO, since the claim set forth by the [Seller] and the set off claims set forth by the [Buyer] lack connection. The same conclusion must be reached with regard to the expenditures or the repayment of the alleged loan in the amount of 30.000 €. The fact that the latter loan was paid through a German bank account is not sufficient to justify the competence of German courts with regard to the place of performance according to Art. 5(1) EuGVVO, especially since the circumstances of the loan payment and the agreements of the parties with regard to that loan are unknown.
  11. German courts are solely competent for the setting off of damage claims arising from the deliveries of the parties. These claims, however, are unjustified on the merits.
  12. This legal analysis is correct in its result; therefore, the challenge is unsuccessful.
  13. The claim for the purchase price under the CISG (Art. 3(2) EGBGB, Art. (1)(1)(a), Art. 53 CISG) is not disputed by the parties. The set off claim of the [Buyer], based on the three aforementioned counterclaims lacks legal basis. Aside from the question whether German courts are internationally competent to decide on the counterclaims, the set off fails on the set off requirements derived from Italian law.
  14. The lower appellate court, in accordance with a Federal Supreme Court decision of 12 May 1993 (VIII ZR 110/92, WM 1993, 1755, B III 2) is under the assumption that the court deciding set off claims be internationally competent with regard to the counterclaims this set off is based on. It is also under the assumption that, in the present case, the court is not competent to decide on the disputed and unconnected claims and that a set off in the present proceedings need not be considered.
  15. The higher appellate court does not contest that the counterclaims are disputed and unconnected to the main claim and that German courts would lack jurisdiction to decide on these counterclaims, were these counterclaims enforced as a single claim themselves. The higher appellate court, however, does consider, with a decision of the European Court of Justice on the matter of Art. 6(3) EuGVÜ (C-341/93, WM 1995, 2161 Para. 13 -- Danvaern v. Otterbeck) in mind, that this is irrelevant. This decision, in accordance with scholarly material, should be understood that in cases in which a dispute arises under the EuGVVO. The competence of courts can be finally regulated in the EuGVVO and therefore, any set off based on counterclaims can be decided under the requirements of the national law.
  16. In its decision of 7 November 2001, the Chamber left the question undecided, whether, based on the aforementioned decision, its previous jurisprudence, namely that under the EuGVÜ, the competence of German courts over setting off claims based on disputed, unconnected counterclaims must be derived from German law of procedure, can be upheld. This question need not be answered here. Aside from any possible competence of German courts to decide the matter, the Italian law invoked does not admit a set off with the counterclaims of the buyer.
  17. Art. 17(1) Rom I-VO states that in cases in which the law applicable to set offs is not contractually agreed upon, the set off is governed by that law which governs the main claim against which any other claim is to be set off. As a result, the set off is subject to the law of the main claim and this law governs the requirements, the realization and the effects of a set off (Federal Supreme Court, 23 June 2010, VIII ZR 135/08, WM 2010, 1217 para. 24)
  18. The main claim for the purchase price is subject to the CISG. Since the CISG does not apply to set offs of claims that result -- as is the case here -- not only from contractual relations subject to the CISG (see Art. 4 CISG), the law applicable to set offs is -- according to Art. 4(1)(a) Rom I-VO -- the law of the country in which the [Seller] has his regular residence, which in the present case would be -- as according to Art. 19(1) Rom I-VO headquarters are relevant -- Italian law (see also Federal Supreme Court 23 June 2010 -- VIII ZR 135/08, op. cit.; Magnus in Staudinger, op. cit., Art. 17 Rom I-VO § 19).
  19. Contrary to German law, which in §§ 387, 390 requires only that a party can claim the performance owed to him and effect the performance owed by him, Italian law additionally requires the liquidity of the counterclaim (see also Magnus in Staudinger, op. cit., § 32), which is not the case here.
  20. The Italian Civil Code ("Cc") provides, aside from the mutually agreed set off (Compensazione volontaria) which is not applicable in the present case, a statutory set off defined in Art. 1252 Cc and a judicial set off set fort in Art. 1243 Cc. According to Art. 1243(1) Cc, the statutory set off (Compensazione legale) is only applied for debts that are measured in money or that concern a quantity of equal kind and that are fixed (che sono ugualmente liquidi) and due. According to Art. 1243(2) Cc, by the judicial set off (Compensazione giudiziale) which applies in cases in which the amount of the claim for set off is not fixed (non è liquido), but can be easily and quickly determined (ma è di facile e pronta liquidazione), the court can declare the set off with regard to those claims that it recognizes and can also grant a stay with regard to the already fixed claim until the counterclaim can be fixed as well. The requirements of neither the statutory nor the judicial set off are met in the present case
  21. A statutory set off, which according to Art. 1242(1) Cc has an ex tunc effect, fails because the counterclaims brought forth by the [Buyer] are not fixed for lack of liquidity. According to the relevant Italian judicial practice formed especially by the jurisprudence of the Corte di Cassazione (see also Federal Supreme Court, 23 April 2002 -- XI ZR 136/01, WM 2002, 1186, II.2.b; 24 March 1987 -- VI ZR 112/86, NJW 1988, 648, II.3.a), for a counterclaim to be fixed, the counterclaim cannot be in dispute, unless a challenge to the claim obviously lacks basis (prima facie pretestuosa ed infondanta) and would thereby be an abuse of the law (Kannengießer, Die Aufrechnung im internationalen Privat- und Verfahrensrecht, 1998, p. 15; Kindler, IPRax 1996, 16, 20; Gebauer, Jahrbuch für Italienisches Recht 12 [1999], 31, 41; Stürner, RIW 2006, 338, 343) The counterclaims, however, are -- based on the findings of the lower appeals court -- in dispute. There is no reason to consider that these counterclaims obviously lack legal basis.
  22. A judicial set off on the basis of Art. 1243(2) Cc, whereby in cases of lacking liquidity of the counterclaim the court can, ex nunc, decide on the existence and the amount of the counterclaim as well as the set off of the claims (see Art. 1241 Cc; Kannengießer, op. cit., p. 43; Gebauer, op. cit.; Kindler, op. cit. p. 21; Stüner op. cit.), is not applicable as the counterclaims brought forward by the [Buyer] are not easily and quickly determinable.
  23. An application of Art. 1243(2) Cc by German courts -- and as a result, relaxed requirements compared to a statutory set off -- is not barred by the fact that this rule is embedded in Italian rules of procedure dealing with the procedural requirements for a substitution of the already existent requirement of liquidity. Such a replacement cannot be found in German law of procedure, which is relevant under the lex fori rule (see, however Higher Regional Court Stuttgart, RIW 1995, 943, 944; similar Busse, MDR 2001, 729, 743). Even if the set off requirements listed in this rule were procedural law and not substantive law, this would not hinder a German judge from ascertaining whether the rule itself has substantive effects and applying the rule as if it were substantive. Whether the Italian set off requirements are of a procedural or a substantive nature needs to be determined in proceedings in front of a German court, subject to German law, and with application of the relevant foreign law, regardless of whether German procedural law contains a conforming procedural rule. This is determined by examining whether the requirements set forth in Italian law concur with the German requirements set forth in §§ 387 et seqq (see Federal Supreme Court 9 June 1960 -- VIII ZR 109/59, NJW 1960, 1720, II.1; Regional Court Munich I, RIW 1996, 688, 689; Nagel/Gottwald, Internationales Zivilprozessrecht, 7th ed., Ch. 6 § 23; Spickhoff in Bamberger/Roth, BGB, 3rd ed., Art. 17 Rim I-VO § 7). This is the case with regards to the requirement of liquidity and its procedural substitution of quick and easy determination of existence and amount of a counterclaim under Italian law (see also Higher Regional Court Düsseldorf, IHR 2004, 203, 208; Regional Court Munich I, op. cit.; Stürner, op. cit.; Kannengießer, op. cit. p. 13, 79.).
  24. Therefore, Art. 1243 is to be applied to the extent to which it allows a set off (Regional Court Munich I, op. cit.; Nagel/Gottwald, op. cit.; Kindler, op. cit.; Kronke, IPRax 1996, 139, 140; Stürner, op. cit..). The fact that German procedural law does not know a with regard to this particular rule is not relevant, since German law -- in § 322(2) ZPO -- contains a possibility for the court to grant a decision with regard to the counterclaim (see also Gebauer, op. cit.; Kindler, op. cit.; Busse, op. cit.). However, and contrary to the lower appeals court, a decision under § 302 ZPO cannot be rendered if -- as will be shown hereafter in II.2.b.(2).(b) -- a liquidity of the counterclaim as defined by Art. 1243(2) Cc is lacking (see also Federal Supreme Court, 22 October 1957 -- VIII ZR 67/56, BGHZ 25, 360, 365).
  25. The requirements for set off as defined by Art. 1243(2) Cc are not met in the present case. The lower appeals court did not make any findings in this regard, as is correct from its legal standpoint. Any findings by a lower court are not necessary, as this Chamber can make these findings based on the files, which are not disputed by the parties (Federal Supreme Court, 19 December 1999 -- IX ZR 129/99, WM 2000,959, I.3; 18 May 2006 I ZB 57/05, GRUR 2006, 702 § 21; 26 June 2008 -- IX ZR 47/05 WM 2008, 1442 § 19).
  26. According to the relevant Italian judicial practice formed especially by the jurisprudence of the Corte di Cassazione, a counterclaim is easily and quickly fixed if the determination can be made in a timely manner and without serious difficulties. The determination cannot be consuming and cannot delay the decision on the main claim (Kannengießer, op. cit. p. 42; Gebauer, op. cit. p. 43; Kindler, op. cit.). In the present case, the complexity of the case and the legal matter warrants a different finding with regard to the determination of the counterclaim.
  27. An easy and quick determination is prevented already by the fact that -- as the [Buyer] has already conceded -- any such determination would require additional legal inquiries. The counterclaims would be subject to that law relevant according to international private law (Spellenberg in Münchener Kommentar zum BGB, 5th ed., Art. 17 VO (EG) 593/2008 § 20; Soergel/von Hoffmann, 12th ed. Art. 32 § 51; Thorn in Palandt, 73rd ed., Art. 17 Rom I-VO § 2). As the Regional Court has already pointed out, this would in no case be German law, but a legal system which would also have to be determined.
  28. With regard to the interest of the loan the relevant law is, according to the still applicable Art. 28(1), (2), (5) EGBGB in the version prior to 17 December 2009, either Swiss law or the law of Dubai, which could stand to reason because the "Shareholder Loan Contract" was written in Dubai and the loan is connected with the corporate relationship to the Dubai based M. LLC. According to Art. 10(2) through (4), Art. 11(2) through (4) Rom II-VO, the claim for compensation of expenditures could be determined by Swiss or Italian law or the law of Dubai, the latter standing to reason by virtue of the corporate relations of the parties to M. LLC. Due to the undisputed Dubai residence of Ma. B., the law of Dubai is also to be considered with regard to the alleged loan in the amount of 30.000 €, according to Art. 4(2) through (4) Rom I-VO.
  29. The [Buyer] made no submissions with regard to the facts on which to base such a determination or with regard to the substance of the relevant law. Even if the facts were made clear, the determination of the applicable foreign law would in all cases require an extensive and time-intensive outside legal opinion. For this reason alone it can be ruled out that a determination of the counterclaims could be done in a quick and easy manner.
  30. After the determination of the applicable law and a subsequent determination of the relevance of the [Buyer's] submissions, extensive and time-intensive findings with regard to the facts of the counterclaims would have to follow. This would further hinder the quick and easy determination of the counterclaims. With regard to the loan from which interest is claimed, the "Shareholder Loan Contract" is already not clear enough to rebut the [Buyer's] submission that the money was not a loan, but an emergency liquidity assistance granted by the shareholders of M. LLC to the shareholders of the [Seller]. In deciding this question, one would -- through foreign legal assistance -- have to make findings and the alleged waiver of the [Buyer] of the right to additional payments after the original amount of the loan had been repaid. The same can be said of the circumstances of the alleged compensation for expenditures as well as the alleged loan in the amount of 30.000 € provided that the [Buyer] would have made submissions and filed evidence under a law that would still have to be determined.

Dr. Frellesen    Dr. Hessel    Dr. Achilles
  Dr. Schneider    Dr. Bünger   


* All translations should be verified by crosschecking against the original text.

** William Euler is a law student at the Ludwig-Maximilians-University in Munich, Germany. He is a student research assistant with the Chair for Private Law and Corporate Law and participated in the 2014/2015 Willem C. Vis Moot Court.

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