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CISG CASE PRESENTATION

Germany 2 September 1991 Appellate Court Celle (Vacuum cleaners case)
[Cite as: http://cisgw3.law.pace.edu/cases/910902g1.html]

Primary source(s) for case presentation: UNCITRAL abstract


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Case identification

DATE OF DECISION: 19910902 (2 September 1991)

JURISDICTION: Germany

TRIBUNAL: OLG Celle [OLG = Oberlandesgericht = Provincial Court of Appeal]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 3 U 246/97

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Vacuum cleaners


Case abstract

GERMANY: Oberlandesgericht Celle 2 September 1991

Case law on UNCITRAL texts (CLOUT) abstract no. 318

Reproduced with permission from UNCITRAL

A Dutch seller, plaintiff, delivered vacuum cleaners to a German buyer, defendant. After having sold the vacuum cleaners, the buyer objected to the quality thereof and declared the avoidance of the contract, refusing to effect payment. The seller sued the buyer for the outstanding purchase price and the buyer sought set-off with damages for loss of profit.

The first instance court allowed the claim and dismissed the set-off.

The appellate court found that the seller was entitled to claim the purchase price under article 53 CISG in conjunction with articles 14, 15, 18 CISG, because the buyer had not been able to return the vacuum cleaners.

As to the set-off, the court held that the buyer was not entitled to claim loss of profit, in view of the fact that it had omitted to assess its damages on the basis of a specific calculation as required by article 74 CISG. The court noted that, if it had been provided with the vacuum cleaners' current market price, an abstract calculation would have been admissible under article 76 CISG. In such case, the damages would have been calculated on the basis of the difference between the price fixed by the contract and the current market price at the time of the avoidance of the contract. However, as the current market price of the "no-name" vacuum cleaners was missing, damages could only be established on the basis of a specific calculation under article 74 CISG, which had not been provided by the buyer.

The court found that the buyer had failed to mitigate the loss under article 77 CISG, as it had made only efforts to effect replacement purchases in its region, without taking into account other suppliers in Germany or abroad.

The court determined to grant to the buyer only reimbursement of the costs related to recovery of the goods and allowed set-off in the corresponding amount.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 74 ; 76 ; 77 ; [Also cited: Articles 14 ; 15 ; 18 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

74A1 [Damages: loss suffered as consequence of breach including loss of profit (Court only allowed reimbursement of costs related to recovery of the goods. Court disallowed claim for loss of profit on basis of no specific calculation as required by art. 74];

76B [Damages recoverable based on current price (Court noted that this would be allowable but data on current market price not provided.)];

77 [Obligation to take reasonable measures to mitigate damages (Court faulted buyer for failure to take into account other supplier's in buyer's country or abroad.)]

Descriptors: Damages ; Mitigation of loss

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Editorial remarks

  • Unavailable
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    Citations to other abstracts, texts and commentaries

    CITATIONS TO OTHER ABSTRACTS OF DECISION

    Unavailable

    CITATIONS TO TEXT OF DECISION

    Original language (German): [1999] Oberlandesgerichts-Rechtsprechungsreport Celle 360

    Translation: Unavailable

    CITATIONS TO COMMENTS ON DECISION

    Unavailable

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    Pace Law School Institute of International Commercial Law - Last updated February 1, 2002
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