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CISG CASE PRESENTATION

Germany 9 December 1992 District Court Frankfurt (Shoes case)
[Cite as: http://cisgw3.law.pace.edu/cases/921209g1.html]

Primary source(s) for case presentation: Unilex abstract; case commentary


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Case identification

DATE OF DECISION: 19921209 (9 December 1992)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 3/3 O 37/92

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

CASE HISTORY: 2nd instance OLG Frankfurt 18 January 1994 [reversing]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Shoes


Case abstract

Prepared by Camilla Andersen for commentary on notice issues under Article 39(1)

Nineteen days after delivery was considered a reasonable time for the giving of notice (by telephone) pursuant to Article 39(1). Andersen, Pace Review of the Convention on Contracts for the Intrnational Sale of Goods (1998) 127. "[T]he problem of notice-giving over the telephone has been brought before the German Courts several times. This form of notice is, in theory, acceptable but poses a question of evidence. If the buyer cannot substantiate the call, the Court cannot take it into consideration unless the seller does not dispute it. Most buyers have been unsuccessful, but in [this case], the Court found that notice was given satisfactorily since a shoe seller did not dispute that the call took place and that the non-conformity was specified." Id. at 107

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 27 ; 39 ; 49 [Also cited: Article 45 ]

Classification of issues using UNCITRAL classification code numbers:

27A [Dispatch of communication by appropriate means (telephone notice)];

39A ; 39A1 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Specification of nature of non-conformity];

49A [Buyer's right to avoid contract (grounds for avoidance): fundamental breach of contract]

Descriptors: Avoidance ; Lack of conformity notice, timeliness ; Formal requirements ; Telephone notice

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Editorial remarks

"The Court confirmed that the buyer's notice of avoidance given by telephone was valid." Anna Kazimierska, The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods, 1999 Pace online commentary [n.161]

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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=112&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=112&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [238 n.915 (notice of lack of conformity)]; Schwenzer in Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (Oxford 1998) [Art. 39] 315 n.59; for a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace commentary on this subject by Camilla Baasch Andersen; 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)

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Pace Law School Institute of International Commercial Law - Last updated October 20, 2004
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