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CISG CASE PRESENTATION

Germany 24 May 1977 District Court Münster [ULIS precedent] (Shoes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/770524g1.html]

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

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Case identification

DATE OF DECISION: 19770524 (24 May 1977)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 7b O 142/75

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Shoes


Classification of issues present

APPLICATION OF CISG: No, however, ULIS issue is present that is also relevant to the CISG

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 74 can be said to be at issue because analysis of ULIS Article 82 is relevant to interpretation of CISG Article 74

Classification of issues using UNCITRAL classification code numbers:

74B [General rules for measuring damages]

Descriptors: Damages

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Editorial remarks

EDITOR: Albert H. Kritzer

The parallel language of ULIS Article 82 and CISG Article 74. ULIS Article 82 states that "damages shall not exceed the loss which the party in breach ought to have foreseen at the time of the conclusion of the contract in the light of the facts and matters which then were known or ought to have been known to him, as a possible consequence of the breach of the contract."

CISG Article 74 states that "damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract."

Use of ULIS jurisprudence as an aid to interpreting the CISG. Citing century old precedent to the effect that where a term is used in one statute, a subsequent statute that incorporates the same term in a similar context must be construed so that the term is interpreted according to the meaning that has been previously assigned to it, Mann adds: "It is simply common sense that if the Convention adopts a phrase which appears to have been taken from . . . where it is used in a specified sense, the international legislators are likely to have had that sense in mind and to intend its introduction into the Convention." F.A. Mann, Uniform Statutes in English Law, 99 Law Quarterly Review (1983) 382-383 [citations omitted]. In the same vein, Audit states: "The international character of the Convention should encourage courts to refer to the Convention's legislative history and prior instruments (i.e., the ULIS . . .) in order to ascertain the most likely intent underlying the wording of a given provision." Bernard Audit, The Vienna Sales Convention and the Lex Mercatoria, in: Thomas E. Carbonneau ed., rev. ed., Lex Mercatoria and Arbitration (Juris Publishing 1998) 188.

For examples of other case law interpretations of ULIS Article 82, go to the Match-up of ULIS Article 82 with CISG Article 74 and the section of that presentation entitled, ULIS case precedents aiding in interpretation of CISG Article 74. The ULIS citations presented are taken from the chapter on CISG Article 74 by Hans Stoll in Peter Schlechtriem ed., Commentary on the UN Convention on the International Sale of Goods (Clarendon Press: Oxford 1998) 552-572.

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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): Schlechtriem/Magnus, Internationale Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF], Baden-Baden: Nomos (1987) Art. 82 EKG No. 7, 202-204

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Saidov, Damages under the CISG (December 2001) n.200; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 33 para. 13

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Case text (English translation)

Queen Mary Case Translation Programme

Landgericht Münster 24 May 1977, 7b O 142/75

Translation by Jarno Vanto [*]
University of Turku, Finland

Translation edited by Ruth M. Janal [**]
University of Freiburg, Germany

The claimant, an Italian manufacturer, delivered nine consignments of shoes to the defendant buyer. The time of delivery was agreed as being August 1974. The [buyer] aimed at incorporating its standard terms to the contract. These terms were printed on the backside of the order form. According to those standard terms, [buyer] was entitled to cash discount if it paid within 30 days after the delivery of the goods. The deliveries of the consignments took place from August until October of 1974. Six of the deliveries were delayed, based on which the buyer refused to pay the full purchase price. [Buyer] submitted that it suffered losses from the late deliveries, as they had contained fashion goods which it then was forced to sell at a lower price. 497 pairs of the shoes were no longer merchantable. The [seller] claimed the payment of the purchase price. The Court granted the claim.

The Court held, that the [buyer] was not entitled to a cash discount because its standard terms had not become part of the contract. A mere reference to these standard terms is not enough for the terms to become part of the contract. The Court continued:

"The [buyer] is not entitled to claim damages because of the delayed delivery. It is irrelevant whether the claims of the parties are similar in nature, even though the claim for the purchase price is in Italian Lira and the claim for damages is in Deutsche Mark [***]. The material requirements for the [buyer’s] liability, laid down in Articles 24 and Article 82 ULIS, are not met.

"It is true that, with respect to the predominant part of the shoes, the [seller] failed to fulfill its duty under the contract, to deliver the goods within time. According to the contract, the delivery was to take place within August 1974.

"The decisive point of time for the question of timely delivery was the date when the [seller] handed over the goods to the carrier for transmission to the [buyer], because this constituted the act by which the [seller] effected delivery. Therefore, the first three shipments were delivered within time […]. The case is different with the following six consignments […]. It has been ascertained that these six consignments were handed over late for transmission to the [buyer].

"However, the [buyer's] claim for damages fails because the [buyer] has not concisely established that it has in fact suffered damages or loss of profit as a result of the breach. In order to establish the loss resulting from the price reduction, the [buyer] should have given a detailed account of which consignment of shoes it had firmly sold at what price, to which customers and, with which stipulated times of delivery; further, at what point in time it received the shoes from the [seller] and forwarded them to its customers. Finally, [buyer] would have had to submit that its customers were entitled under their contracts to refuse acceptance of the goods based on late delivery. The [buyer’s] submission is not sufficient to substantiate its claim. It does not clarify what kind of delivery clauses the [buyer] had agreed upon with its customers. This, however, is decisive. A causal connection between the delayed delivery and the [buyer’s] price discount in favor of its customers can be affirmed only if the [buyer’s] customers were allowed to refuse to accept the delivery on grounds of delay.

"As long as the [buyer] does not offer a substantiated submission, the conclusion cannot be drawn that it was forced to offer price reductions to its customers. As to the [buyer's] claim for damages concerning 497 pairs of shoes and their unmerchantable quality, the claim is unfounded. If and to the extent that these shoes were included in the first three delivered consignments, the claim for damages based on late delivery is unfounded. Additionally, the [buyer] has not shown that the allegedly unmerchantable goods had already been sold and consequently rightfully been refused by its customers on grounds of late delivery. Only in such a case, could a causal connection be established. As a matter of fact, it cannot be assumed that a wholesaler will always purchase exactly the amount of goods that it has already resold, or that it will be able to sell all the goods bought if its supplier delivers within time."


FOOTNOTES

* Jarno Vanto is an LL.M student at the University of Turku, Finland. He is currently working on his thesis on damages under the CISG.

** Ruth M. Janal, LL.M. (UNSW) is a Phd candidate at Albert-Ludwigs-Universität Freiburg.

*** Translator's note on abbreviation: Similarity in nature is a prerequisite for the set-off of claims under § 387 of the German Civil Code.

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated September 14, 2006
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