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CISG CASE PRESENTATION

Germany 14 April 1993 Lower Court Cloppenburg (Used agricultural machine (mower) case)) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/930414g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19930414 (14 April 1993)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 2 C 425/92

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Austria (plaintiff a German distributor)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Used agricultural machine (mower)


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 48 ; 50 ; 78 [Also cited: Articles 2 ; 35 ; 45 ; 46 ; 53 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

48A [Cure by seller after date for delivery: seller's right to remedy any failure to perform];

50C2 [Buyer's right to reduce price for non-conforming goods: buyer may not reduce price when buyer refuses to accept seller's remedy under Article 37 or 48];

78B [Interest on delay in receiving price or any other sum in arrears: rate of interest]

Descriptors: Alivd v. peius ; Cure ; Repair ; Reduction of price, remedy of ; Interest

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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: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=80&step=Abstract>

Italian: Diritto del Commercio Internazionale (1995) 449 No. 67

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/85.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=80&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: 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. 46 para. 45 Art. 50 para. 7

German: Piltz, Neue Juristische Wochenschrift (1994) 1101, 1105 n.72, 73

Spanish: Piltz, La Ley (Buenos Aires: 5 September 1994) 1-4 n.52

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Lower Court (Amtsgericht) Cloppenburg

14 April 1993 [2 C 425/92]

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

FACTS

Plaintiff [Assignee of Seller] is the local importer for [Seller]. The [Seller] is Company J. N. KG, an Austrian manufacturer of machinery used for mowing and communal agriculture under the brand name "Rasant". Defendant [Buyer] ordered from [Seller]:

   -    A used "Rasant Kombi-Trak 1903" at a net price of Deutsche Mark [DM] 30,200; and
   -    A set of twin-tire equipment at a net price of DM 1,240.

Delivery was made free Austrian address, duties unpaid and untaxed. [Assignee of Seller] was authorized to accept payment of the purchase price.

[Buyer] received the "Rasant Kombi-Trak 1903" with used twin-tire equipment at the end of February 1992 and the purchase price was invoiced by [Assignee of Seller]. On 2 May 1992, [Buyer] paid [Assignee of Seller] only the sum of DM 28,080. [Buyer] justified the reduction in a hand-written accompanying letter as follows:

   -    Twin tires, old and used, reduction of DM 600;
   -    Hydraulic pump and control valve damaged, reduction for the hydraulic pump DM 1,062, for the control valve DM 748;
   -    Reduction of transport costs in the amount of DM 150 and costs for assembly of DM 800.

Subsequently, a conference was held at [Buyer]'s premises in Cloppenburg, Germany, It was attended by the husband of the proprietor of [Buyer], Sales Manager P. of the [Seller] and Businessman S. also of the [Seller] who declared their willingness to rectify the defects alleged by [Buyer] at [Assignee of Seller]'s premises in Klein-Scharrel. However, [Buyer] did not have the machine -- which meanwhile had been resold to Company A. -- moved to Klein-Scharrel, but by letter dated 21 July 1992 insisted on the repair taking place in Cloppenburg.

POSITION OF THE PARTIES

[Assignee of Seller]'s action

[Assignee of Seller] demands payment of the residual sum and asserts that [Buyer] had not provided notice of any defects prior to the beginning of May 1992. The [Assignee of Seller] alleges that the reductions made by [Buyer] were unjustified, and that the agreement to have the repairs made at the [Assignee of Seller]'s in Klein-Scharrel was only made under considerations of fairness.

The [Assignee of Seller] requests the Court to order [Buyer] to pay DM 3,360 plus 12.5% interest since 27 March 1992.

[Buyer]'s response

[Buyer] requests the Court to dismiss [Assignee of Seller]'s action.

[Buyer] asserts that it complained about the defects immediately over the telephone after having received delivery of the Kombi-Trak. These defects actually existed. Moreover, [Assignee of Seller] delivered used twin tires instead of new ones as had been agreed. [Buyer] further states that there had been no agreement on a repair to take place in Klein-Scharrel.

[Buyer]'s counterclaim

By way of counterclaim, [Buyer] demands from [Assignee of Seller] payment of an invoice from [Buyer]'s customer, Company A., of 28 September 1992 arising out of guarantee works in relation to the Kombi-Trak in the amount of DM 1,958.52 as well as costs of DM 855 that were incurred in relation to the application of the twin tires. [Buyer] alleges that [Assignee of Seller] was under an obligation to compensate these costs incurred by [Buyer] as well as to settle the sum invoiced by Company A.

[Buyer] requests the Court by way of counterclaim to order [Assignee of Seller] to pay DM 2,813.52 plus 4% interest since 26 February 1993.

[Assignee of Seller]'s response to the counterclaim

The [Assignee of Seller] requests the Court to dismiss the [Buyer]'s counterclaim.

[...]

REASONING OF THE COURT

[Assignee of Seller]'s action is well-founded pursuant to Art. 53 of the United Nations Convention on Contracts for the International Sale of Goods (BGBl. [*] II 1989, 588 et seq.).

The contract for the sale of the Kombi-Trak was concluded between [Buyer] and [Seller]. For the purposes of these proceedings, [Assignee of Seller] could only act as an agent to receive payment. This follows from [Assignee of Seller]'s undisputed submissions and from the circumstances as a whole. [Buyer] asserts that it has given notices of non-conformity to the [Seller]. Furthermore, it is not in dispute that the relevant negotiations had not been made with the [Assignee of Seller], but with Representatives S. and P. of the [Seller]. According to Art. 1(1)(a) CISG, the United Nations Convention on Contracts for the International Sale of Goods governs this dispute because both Austria and the Federal Republic of Germany are Contracting States and none of the grounds for exclusion under Arts. 2 et seq. apply.

After the taking of evidence. the Court is convinced that the parties had agreed to have repairs of the Kombi-Trak performed, which should take place in Klein-Scharrel and not in Cloppenburg. The statements made by Witnesses S. and P. are unanimous in that respect. Given that no date for rectification to take place in Cloppenburg had been at issue on the occasion of the talks with the husband of [Buyer]'s proprietor on 14 May 1992, the Court considers the statements made by both witnesses as credible on the basis of the impression given during the main hearing, especially since the argument of Sales Manager P. is convincing in saying that works should be performed at Klein-Scharrel due to the available spare parts and negotiated hourly rates. Furthermore, not even the husband of [Buyer]'s proprietor has confirmed that there had been an agreement for repair works to take place at its premises in Cloppenburg. Rather, according to his statement made on 14 May 1992, no specific arrangement had been made. The husband has stated that Witnesses P. and S. had said that a consultation had been necessary in Austria. However, this is not comprehensible in the opinion of the Court because P. was [Seller]'s sales manager for Germany, who -- given his position and the rather small amount at issue -- should have been generally authorized to take the corresponding decisions without prior consultation.

This evaluation is also not in conflict with Art. 46 CISG. This article does not at all refer to location and time of any works for repair of defects. Even if it is generally assumed that the seller has to repair the goods at their location according to the contract (i.e., at their destination, cf. von Caemmerer/Schlechtriem, Kommentar zum UN-Kaufrecht, Art. 46 para. 85), a deviating arrangement can be reached between the parties. This is also what happened in the present case. It is without bearing on this finding that the parties had not agreed upon the costs of transporting the Kombi-Trak from Cloppenburg to Klein-Scharrel. In light of the small distance, these costs had not been substantial in any event.

Consequently, it may remain unresolved whether the Kombi-Trak was indeed defective or whether [Seller] gave its consent to the rectification works in Klein-Scharrel only by way of fairness. [Buyer] is in default of acceptance and has not even responded to a corresponding written request to get the vehicle to Klein-Scharrel, as has been credibly testified by Witness P.

Therefore, [Buyer] is not entitled to claim a reduction in the purchase price under Art. 50 CISG. This also applies to the twin-tire equipment even though [Seller] -- according to the concurring statements by the witnesses -- in fact delivered used tires instead of new ones as had been agreed. This is because the CISG under Art. 35(1) does not distinguish between peius, aliud and deviations in quantity (cf. Schwenzer, Das UN-Abkommen zum internationalen Warenkauf, NJW [*] 1990, 602 (605)).

[Buyer]'s counterclaim is unfounded.

Payment for the guarantee works, which were invoiced by [Buyer]'s customer, Company A,. on 28 September 1992 and apparently have remained unpaid, cannot be demanded from [Assignee of Seller]. [Buyer] has not even substantiated that Company A. had requested prior to these works to rectify the defects mentioned in the invoice dated 28 September 1992. Additionally, both the so-called guarantee works embraced in this invoice and the costs relating to application of the twin tires of DM 855 arose in the context of the defects notified by [Buyer]. However, [Buyer] insofar lost its rights as has been set out above. Any claims by the [Buyer] pursuant to Art. 45(1) in conjunction with Arts. 74 et seq. are thus unfounded.

The interest claim of [Assignee of Seller] is justified in accordance with Art. 78 CISG. However, only the common statutory interest rate among businesspersons of 5% can be awarded in the absence of demonstration that a higher rate should apply. Interest is to be paid since 24 July 1992, because [Buyer]'s letter of 21 July 1992 and [Seller]'s fax indicate that the time limit for rectification expired on 24 July 1992.

The ancillary decisions are based on 91(2), 709 ZPO [*].


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Company J.N. KG of Austria is referred to as [Seller], Plaintiff of Germany is referred to as [Assignee of Seller] and Defendant of Germany is referred to as [Buyer]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM].

Translator's note on other abbreviations: BGBl = Bundesgesetzblatt [German Federal Law Gazette]; NJW = Neue Juristische Wochenschrift [a German law journal]; 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.

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Pace Law School Institute of International Commercial Law - Last updated February 15, 2008
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