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CISG CASE PRESENTATION

Germany 14 October 1992 Lower Court Zweibrücken (Shoes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/921014g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19921014 (14 October 1992)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1 C 216/92

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: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 26 ; 74 ; 78 [Also cited: Article 25 ; 49 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

26A1 [Effective declaration of avoidance: notice to the other party required];

74A [General rules for measuring damages (loss suffered as consequence of breach): includes dunning costs];

78A ; 78B [Interest on delay in receiving price or another sum in arrears; Rate of interest]

Descriptors: Avoidance ; Damages ; Interest

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Editorial remarks

"The Court confirmed that, according to art. 26, the buyer's notice of declaration of avoidance must represent his clear intention to avoid the contract, which in this case neither the buyer's request for a price reduction nor that the goods be taken back could represent." Anna Kazimierska, The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods, Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) n.163

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=92&step=Abstract>

Italian: Diritto del Commercio Internazionale (1995) 445-446 No. 61

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/46.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=92&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 215 [Art. 26]; Ferrari, International Legal Forum (4/1998) 138-255 [253 n.1079 (interest issues)]; Koneru, 6 Minnesota Journal of Global Trade 105 [134-135 n.129] [comments on interest ruling in this case and other cases]; Thiele, 2 Vindobono Journal (1998) 3-35, citing this case [n.13] and 42 other interest rulings; Liu Chengwei, Recovery of interest (November 2003) n.90; Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 26 para. 10 Art. 49 para. 24 Art. 73 para. 5

French: Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris 1995) 99 n.86, 106 n.115

German: Piltz, Int. Kaufrecht (1993) 247 No. 272 = Neue Juristische Wochenschrift (1994) 1101 [1105 n.66]

Spanish: Piltz, La Ley (Buenos Aires: 5 September 1994) 1-4 n.48; Perales, Cuadernos Jurídicos 3 (1996) No. 43, 5 [7 n.29]

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Petty District Court (Oberlandesgericht) Zweibrücken

14 October 1992 [1 C 216/92]

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

FACTS

On 14 November 1991 Defendant [Buyer] ordered from Plaintiff [Seller] 58 pairs of shoes at a total purchase price of (...).

[Seller] handed over the shoes to the first carrier on 13 December 1991. The consignment arrived at the [Buyer] on 4 January 1992. A check for the sum of (...) which had been issued by [Buyer] on 30 December 1991 could not be properly redeemed. On 12 February 1992, [Seller] was burdened with costs of (...) for its unsuccessful attempt to redeem the check. By letter dated 5 January 1992, [Buyer] demanded [Seller] either to grant a discount of 50% or to take back the goods because of an alleged late delivery of the shoes. [Seller] did not act upon that request.

On 14 April 1992, [Buyer] paid [Seller] the sum of (...). It sold 8 pairs of the respective shoes.

POSITION OF THE PARTIES

Position of [Seller]

[Seller] argues that the goods were delivered to [Buyer] without any lack of conformity and within the required time. The parties had not agreed on any precise date of delivery.

[Seller] requests the Court to order [Buyer] to pay (...) plus interest of 10% on (...) from 5 January 1992 until 12 February 1992, on (...) from 13 February 1992 until 10 April 1992 and on (...) since 11 April 1992 as well as dunning costs of (...).

Position of [Buyer]

[Buyer] acknowledges [Seller]'s partial withdrawal of its legal action with respect to the interest claim. Additionally, [Buyer] requests the Court to dismiss [Seller]'s action.

[Buyer] argues that [Seller] had guaranteed to deliver the goods by 10 December 1991 at the latest. [Seller] could have also been aware of the fact that [Buyer] attached great importance to this issue, given that the shoes were seasonal goods. At the actual date of delivery, the goods intended for sale in winter were already offered at a 50% discount.

REASONING OF THE COURT

[Seller]'s action is admissible and found well grounded safe for the part which had already been withdrawn by [Seller].

Originally, [Seller] demanded from [Buyer] payment of (...), which were then reduced by (...) after an indication by the court. [Seller] has also reduced its claim for interest to 10% in accordance with an approval given by [Buyer] which is necessary pursuant to 269 ZPO [*]. This constitutes an admissible partial withdrawal of the action.

[Seller] is entitled to claim from [Buyer] the residual purchase price for the delivered shoes and to claim compensation for the costs incurred by its failure to redeem the checks of a total undisputed sum of (...) under Art. 53(c) CISG. [Translator's note: This must be a typographical error in the German original text of the judgment, because Art. 53 CISG does not have any subparagraph (c).]

The CISG governs the contract of sale concluded between the parties, Arts. 1(1)(a) and 4 CISG. In particular, the contract in question has been concluded after the Convention entered into force.

Art. 53 CISG provides that the buyer must pay the price for the goods, similar to the German domestic provision of 433(2) BGB [*]. It is undisputed that the purchase price amounted to (...) in total. On 14 April 1992, [Buyer] paid (...) on this price, meaning that a sum of (...) remains unsettled.

The contract has not been avoided according to Arts. 49, 25 CISG. It may remain undecided whether or not the parties had determined a fixed date of delivery as well as whether or not [Seller] has performed its obligation to deliver within the required time. Even if [Buyer]'s submissions -- that 10 December 1991 had been fixed as the date of delivery of the shoes -- was assumed as correct, [Buyer] would not have declared avoidance of the contract in accordance with Art. 26 CISG with respect to the delivery which undisputedly arrived only on 4 January 1992. It is evident from the submitted correspondence that [Buyer] merely requested [Seller] either to take back the goods or to grant a price discount of 50%.

This is insufficient to constitute a declaration of avoidance. Rather, the buyer must unequivocally declare that it seeks to avoid the contract. Avoidance is effected by a unilateral declaration. Prior to the present proceedings, [Buyer] had proposed to [Seller] two alternative routes to process the transaction. Since one of these proposals was aimed at a mere reduction of the purchase price, the declaration as a whole does not constitute an unequivocal declaration to avoid the contract.

[Buyer]'s declaration during the present legal proceedings, according to which it would now rely on avoidance of the contract, has not been raised within the required time under Art. 49(2)(a) CISG. Avoidance has not been declared within a reasonable time after delivery of the goods.

It is irrelevant that [Seller]'s submissions and the previous correspondence between the parties possibly indicate that [Buyer] had discovered lacks of conformity of the shoes. First, the nature of the defects has not even be sufficiently ascertained. Second, [Buyer] has not relied on any lack of conformity in the present proceedings.

[Buyer] is also obliged to compensate [Seller] for the costs of (...) which [Seller] incurred as a result of the attempt to redeem the checks. [Buyer] is also obliged to compensate dunning costs of (...).

The interest claim is founded on Art. 78 CISG in conjunction with Art. 28 EGBGB [*] and Art. 2184 Codice civile of Italy. It is not necessary that [Buyer] is in arrears with payment. It is merely required that the underlying claim has become mature.

The applicable interest rate is not governed by the CISG. It must be geared to the interest rate applicable under the respective domestic law. Art. 28 EGBGB [*] refers to Italian law in this case. Pursuant to Art. 2184 Codice civile, the statutory interest rate amounts to 10% since 16 December 1990.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of Germany is referred to as [Buyer].

Translator's note on other abbreviations: EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws]; ZPO = Zivilprozessordnung [German Code of 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.

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Pace Law School Institute of International Commercial Law - Last updated December 9, 2008
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