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CISG CASE PRESENTATION

Germany 13 August 1991 District Court Stuttgart (Women's clothes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/910813g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19910813 (13 August 1991)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 16 S 40/91

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

CASE HISTORY: 1st instance AG Ludwigsburg 21 December 1990 [affirmed]

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Women's 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 Ludwigsburg Petty District 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." The LG Stuttgart affirmed. Koch, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 237 n.206.

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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: Articles 6 ; 7 ; 25 ; 49(2) [Also cited: Articles 27 ; 39(1) ; 40 ]

Classification of issues using UNCITRAL classification code numbers:

6A [Modification of Convention by contract];

7C22 [Recourse to general principles on which Convention is based: dispatch principle not applicable where parties provide for notice by registered letter];

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

49B [Buyer's loss of right to declare avoidance after delivery]

Descriptors: General principles ; Applicability ; Choice of law ; Standard terms and conditions ; Autonomy of parties ; Avoidance ; Fundamental breach

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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

English: See above; see also Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=86&step=Abstract>

Italian: Diritto del Commercio Internazionale (1995) 442-443 No. 57

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch website <http://www.cisg-online.ch/cisg/urteile/33.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=86&step=FullText>

Translation (English): Translated 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]; Ferrari, International Legal Forum (4/1998) 138-255 [239 n.925 (notice of lack of conformity)]; Kazimierska, Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) n.n.186, 352; for a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace essay on this subject by Camilla Baasch Andersen; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 7-3 n.31; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 27 paras. 6, 9 Art. 49 para. 32

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

German: Piltz, Int. Kaufrecht (1993) 250 No. 282 = Neue Juristische Wochenschrift (1994) 1101 [1105 n.68] [cited as 30 August 1991]

Spanish: Piltz, La Ley (Buenos Aires: 5 September 1994) 1-4 n.50; Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 119-120

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

District Court (Landgericht) Stuttgart

13 August 1991 [16 S 40/91]

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

REASONING OF THE COURT

The admissible appeal of Defendant [Buyer] is unfounded. The Petty District Court (Amtsgericht) has rightfully determined that [Buyer] is obliged to settle the invoice issued by Plaintiff [Seller] on 13 July 1989 in the amount of 13,248 f [French francs].

1. In its appeal, [Buyer] overlooks that pursuant to Art. 28(2) EGBGB [*] the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) applies to the present contract of sale involving carriage of the goods, and that the principle of party autonomy is embraced by Art. 6 CISG. If the parties have stipulated standard terms, then these terms will override provisions of the CISG (OLG [*] Stuttgart RIW [*] 1978, 545). Undisputedly, both parties are registered traders. [Seller]'s standard terms -- extracts of which are reproduced on the order form -- provide that a delayed delivery must be notified by registered mail. This did not occur since [Buyer]'s first notification was given only by way of standard letter dated 29 August 1989, while even its receipt has been disputed by [Seller].

[Seller]'s standard terms do not ultimately clarify within which time frame delayed deliveries must be notified. Even if the period of eight days -- which is stipulated for any notification -- were not considered applicable by analogy, recourse would need to be made to principles developed by the Petty District Court (Amtsgericht) in the First Instance, namely that notification must be made immediately, respectively, within appropriate time. In any case however, a notification sent six weeks after the proposed delivery date has not been made in due time because the buyer can only be granted a short time frame of a few days.

2. [Buyer] is of the opinion that the period to notify did not commence at the point in time when it -- objectively -- became aware of the delay, but only as of that point in time when [Buyer] had realized that [Seller] had sent the goods too late and that [Buyer] had first to determine whether that had been the case. [Buyer] had first become aware of this only upon letter sent by company Cretschmar Cargo dated 28 August 1989.

However, this has no bearing on the present dispute. In fact, the reasoning of the Petty District Court (Amtsgericht) seems to be wrong given the wording of Art. 40 CISG, because the party which itself does not abide by the contract is not entitled to rely on the omission of notification. Nevertheless, even Art. 27 CISG -- which provides that a delay or even failure of the notice to arrive will be to the detriment of the party abiding by the contract -- can be subject to deviating party agreement, as the parties are free to set particular requirements for the communication.

This has been done by [Seller] in its standard terms when it required in particular for notifications on delays a "lettre recommandé", i.e. registered letter. At the same time, this requirement puts the burden on [Buyer] to prove that its letter has reached [Seller] by 29 August 1989. [Buyer] is unable to demonstrate this, because there is no generally established rule of experience that a letter which has been sent -- while this being all which can be proven -- has also reached its addressee in another country. This allocation of burden of proof is also not grossly inequitable because [Buyer] has had the opportunity to make notification via registered letter.

[...]


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]; OLG = Oberlandesgericht [German Appellate Court]; RIW = Recht der Internationalen Wirtschaft [a journal on international commercial law].

** 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.

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Pace Law School Institute of International Commercial Law - Last updated January 30, 2008
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