Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Germany 21 December 1990 Lower Court Ludwigsburg (Clothes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/901221g1.html]

Primary source(s) for case presentation: Case text


Case Table of Contents


Case identification

DATE OF DECISION: 19901221 (21 December 1990)

JURISDICTION: Germany

TRIBUNAL: AG Ludwigsburg [AG = Amtsgericht = Petty District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 4 C 549/90

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

CASE HISTORY: 2nd instance LG Stuttgart 13 August 1991 [affirming]

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Clothes


Case abstract

Prepared by Robert Koch for commentary on fundamental breach

"[W]here the French seller dispatched the goods [women's wear] two days after the stipulated time, the . . . Court held that the inconvenience caused by the delay was only of minor importance to the German buyer and thus did not amount to fundamental breach." Koch, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 237 n.206.

Go to Case Table of Contents

Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 49 ; 74 ; 78 [Also cited: Articles 53 ; 59 ; 61 ]

Classification of issues using UNCITRAL classification code numbers:

25B [Definition of fundamental breach: substantial deprivation of expectation, etc.];

49A1 ; 49B [Buyer's right to avoid contract (grounds for avoidance): fundamental breach of contract; Buyer's loss of right to declare avoidance after delivery: failure to make timely avoidance];

74A [General rules for measuring damages (general rules for measuring): includes loss of interest];

78B [Rate of interest]

Descriptors: Avoidance ; Fundamental breach ; Avoidance ; Fundamental breach ; Damages ; Interest ; Interest as element of damages

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

See above

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/17.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 237 n.206 [fundamental breach (nature of obligation): timely delivery]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 49 para. 29; Spaic, Analysis of Fundamental Breach under the CISG (December 2006) n.277

French: Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris: 1995) 91 n.56, 95 n.69, 100 n.88

German: Piltz, Int. Kaufrecht (1993) 243 No. 255 = Neue Juristische Wochenschrift 1994, 1101 [1105 n.63]

Spanish: Piltz, La Ley (Buenos Aires: 5 September 1994) 1-4 n.45; Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 120 n.253

Go to Case Table of Contents

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Lower Court (Amtsgericht) Ludwigsburg

21 December 1990 [4 C 549/90]

Translation [*] by Jan Henning Berg [**]

FACTS

Plaintiff [Seller], a corporation under French law seated in Paris, demands payment from Defendant [Buyer] for a delivery of fashion goods. [Buyer] is a retailer operating in the sale of men's and women's clothes, seated in Gerlingen, Germany.

On 21 March 1989, [Buyer] ordered from [Seller] women's clothes at a price of 13,248 f [French francs]. It was stated on the order: "Livraison: 1-15/07/89 FIXE.O.N.".

The conditions of delivery printed on the order form stated that any complaint had to be made within eight days.

On 17 July 1989, [Seller] handed the goods over to its carrier. They arrived at the [Buyer]'s store in Düsseldorf, Germany on 19 July 1989. By letter dated 20 October 1989, [Buyer] gave notice to [Seller] that it had not concluded any sales of the goods under that particular delivery due to their very small bust size. [Buyer] stated that it would accept the goods only at a price discount of 30%. [Buyer] also asserted that it could prove late delivery of the consignment.

Since 1 October 1989, [Seller] has been in constant demand of a bank loan exceeding the amount of the claimed sum, for which it is permanently paying at least 9% interest.

POSITION OF THE PARTIES

[Seller]'s action

[Seller] requests the court to order [Buyer] to pay 13,248 f plus 9% interest on that amount since 1 October 1989.

[Buyer]'s position

[Buyer] requests the court to dismiss [Seller]'s action.

[Buyer] argues that there had been an agreement with [Seller]'s representatives for "time-bound" delivery between 1 and 15 July 1989 so that the goods would be at [Buyer]'s disposal in Düsseldorf on Monday, 17 July and could be used for the upcoming shop window decoration of that week.

[Buyer] alleges that these were fashionable and expensive goods that needed to be offered and displayed by the start of the summer season; otherwise they would be "useless", and that, during the negotiations, [Buyer] had expressly notified [Seller] of the consequences of a delayed delivery. [Buyer] gave notice to [Seller] on 29 August 1989 that the goods had been surrendered to the carrier only by 17 July 1989, while 15 July 1989 had been agreed as the date to accomplish delivery. [Seller] was asked to state whether the goods should remain in Germany on the basis of commission or be sent back.

[Seller]'s response

[Seller] contests the assertion that there was a particular sales season during July and August for a fashion store in a German city. [Seller] alleges that no firm deal, dependent on a particular delivery date (Fixgeschäft), was concluded. The fact that the goods arrived with a delay of a few days did not render them useless for [Buyer]. [Buyer] also eventually put the goods to sale.

Moreover, [Seller] alleges that it had not received any letter from [Buyer] dated 23 August 1989.

Reference is made to the parties' memoranda and their exhibits for the further arguments of the parties.

REASONING OF THE COURT

[Seller]'s action is well-founded.

The primary claim follows from Arts. 53, 59 of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). The claim for interest has not been disputed in its amount and follows from Art. 61(1)(b) in conjunction with Art. 74 CISG.

The CISG applies to the present contractual relationship.

Since the contract bears its closest connection to the country where the seller is domiciled, French substantive law applies according to Art. 28(1), (2)(1) EGBGB [*]. There is no renvoi to German law. In any case, a renvoi would not be given consideration (cf. Art. 35(1) EGBGB).

Pursuant to French law, the CISG applies to international contracts of sale since 1 January 1988 if contracts are governed by French law under the rules of private international law (Art. 1(1)(b) CISG). France acceded to the CISG already in 1982 and has not made use of a declaration not to be bound by Art. 1(1)(b) CISG (Herber, RIW [*] 1987, 340; Hutter, Die Haftung des Verkäufers für Nichtlieferung bzw. Lieferung vertragswidriger Ware nach dem Wiener UNCITRAL-Übereinkommen, Regensburg 1988, pp. 5-6: Holthausen, RIW 1991, 101 and 1989, 513 et seq.).

[Buyer] has not effectively declared avoidance of the contract.

The CISG also embraces provisions governing an impairment of performances, and addresses in particular the legal consequences of delayed delivery. The same applies to contracts which were to be considered under German law as a firm deal (Fixgeschäft) in terms of 376 HGB [*]. Non-compliance with a firmly stipulated date of delivery may constitute a fundamental breach of contract in terms of Art. 25 CISG (cf. von Caemmerer/Schlechtriem, CISG Kommentar, Art. 25 para. 18, Art. 49 paras. 23, 24; Holthausen, RIW 1990, 101 (105, 106)).

In case of a fundamental breach of contract the buyer may declare the contract avoided (Art. 49(1)(a) CISG).

According to Art. 49(2)(a) CISG, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so in respect of late delivery, within a reasonable time after he has become aware that delivery has been made. This provision also applies to firm deals (Fixgeschäfte) (von Caemmerer/Schlechtriem, Art. 49 paras. 40 et seq.). Its application to the present case is not hindered by Art. 32(2) EGBGB. Similarly, under German law, the buyer has at least under considerations of good faith a duty to exercise its rights in due course. The nature of a firm deal (Fixgeschäft) presupposes that declaration of avoidance be made in due course after lapse of the firmly set time (Reichsgericht in Das Recht, vol. 34, pp. 365-366).

Having exceeded the firmly stipulated date of delivery by two days (handing the goods to the carrier being decisive), [Seller] did not commit a fundamental breach of contract in terms of Art. 25 CISG. The goods did not lose any of their value by virtue of the delay. The fact that it could be offered to [Buyer]'s consumers only with a delay of two days has only a minor bearing on [Buyer]'s interests.

[Buyer]'s argument that due to the delay the goods became "useless" is unsubstantiated, not supported by factual evidence and therefore irrelevant.

Irrespective of this, [Buyer] would have lost its right to declare the contract avoided.

[Buyer] accepted the goods and did not declare the avoidance of the contract within a reasonable time. According to its own argument, it complained about the delay only on 29 August 1989 -- that means six weeks after delivery -- and only then made an (implied) declaration of avoidance. In light of the time-frame for complaint of eight days as stipulated in the contract and the fact that the goods were fashionable summer clothes -- the merchantability of which [Buyer] itself alleges to be considerably impaired already by a delayed delivery of only two days -- this forms a clear excess of the reasonable time under Art. 49(2)(a) CISG. The long waiting necessarily had to diminish the seller's opportunities to sell the goods in question to other buyers.

The decision on costs follows from 91 ZPO [*]. The decision on preliminary enforceability is based on 709(1) ZPO.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of France is referred to as [Seller] and Defendant of Germany is referred to as [Buyer]. Amounts in the former currency of France [French francs] are indicated as [f].

Translator's note on other abbreviations: EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the conflict of laws]; HGB = Handelsgesetzbuch [German Commercial Code]; RIW = Recht der Internationalen Wirtschaft [a journal on international commercial law]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated February 15, 2008
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography