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CISG CASE PRESENTATION

Germany 14 May 1993 District Court Aachen (Electronic hearing aid case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/930514g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19930514 (14 May 1993)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 43 O 136/92

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Italy (defendant)

GOODS INVOLVED: Electronic hearing aid


Case abstract

GERMANY: LG Aachen 14 May 1993

Case law on UNCITRAL texts (CLOUT) abstract no. 47

Reproduced with permission from UNCITRAL

The German seller of ten electronic ear devices demanded damages for breach of contract by the Italian buyer, who had failed to take delivery despite the additional period of time set by the seller for the buyer to take delivery.

The court held that it had jurisdiction under article 5(1) of the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters, which provides that a party who is domiciled in a Contracting State can be sued before the courts of the place where the obligation giving rise to the dispute had to be performed. The court applied article 31(b) CISG, which was applicable under German private international law as part of German law, and determined that Aachen, where the goods had been manufactured, was the place where the seller was obliged to deliver (art. 31(b) CISG).

The court applied articles 61(1)(b), 63 and 74-77 CISG and found that the buyer had to pay damages to the seller for failing to take delivery of the goods, even after the additional period of time set by the seller had expired.

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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 4 ; 29(1) ; 31(b) and 31(c) ; 63 ; 74 ; 79 [Also cited: Articles 9(1) ; 35 ; 60(b) ; 61(1)(b) ; 75 ; 76 ; 77 ]

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Issues covered: mistake as to the quality of the goods; issues excluded: validity of settlement agreement];

29A [Modification of contract by agreement (settlement agreement governed by Article 29)];

31B ; 31C [Place for delivery: contracts not involving carriage and parties knew location of goods; Other cases, goods at buyer's disposal at seller's place of business];

63A [Notice fixing additional final period for buyer's performance];

74B [Damages (general rules for measuring): foreseeability of loss (buyer's liability to third parties foreseeable when goods not timely delivered)];

79F [Impediment excusing party from damages: preservation of remedies other than damages (right to claim performance)]

Descriptors: Scope of Convention ; Error or mistake ; Validity ; Delivery ; Nachfrist ; Damages ; Foreseeability of damages ; Exemptions or impediments

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Editorial remarks

"The Court held that the application of CISG precluded recourse to domestic law regarding mistake as to the quality of the goods as the matter is exhaustively covered by CISG." Kazimierska, Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) n.331

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=23&step=Abstract>

French: Droit et pratique du commerce international/International Trade Law and Practice 1994, 96

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit international et de droit européen 1995, 270-271

Italian: Diritto del Commercio Internazionale (1993) 658 No. 21

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/86.htm>; Recht der Internationalen Wirtschaft (RIW) 1993, 760-761; Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre (IPRspr) 1993 No. 141, 316-317; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=23&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 241 [Art. 31]; Bernstein/Lookofsky, Understanding the CISG in Europe (1997) 16 n.38 n.39; Curran, 15 Journal of Law and Commerce (1995) 175-199 [181-183] [English summary of comments by Witz cited below]; Karollus, Cornell Review of the CISG (1995) 51 [58, 60, 66, 74-75] [comments on issues under Article 4, 29, 31 and 74 in the context of German case law on the CISG]; Kimbel, 18 Journal of Law and Commerce (1999) 301-331 (analysis of the remedy of Nachfrist citing this and other cases: 306 n.24, 321 n.83); ; Slater, Inapplicability of the UNIDROIT Principles' Hardship Provisions to CISG, 12 Florida Journal of International Law (1998) 231-262; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) [seller's obligation: delivery 164-187 (this case at 164-165)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-6 n.63, n.76 & n.79; § 4-6 n.73; § 6-8 n.53; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 199; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 4 para. 13 Art. 29 para. 3 Art. 31 para. 18 Art. 35 para. 45 Art. 57 para. 25 Art. 60 para. 2a Art. 74 para. 21 Art. 79 para. 31; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 136

French: Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris: 1995) 38-39 n.57, 82 n.10

German: Karollus, [österreichisches] Recht der Wirtschaft (öRdW) 1991, 319; Piltz, Neue Juristische Wochenschrift 1994, 1101 [1102 n.15, 1103 n.31]; Schlechtriem in von Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht (2d ed. 1995) 254 n.9 [Art. 29]; Staudinger-Magnus (1994) Art. 4 No. 62, Art. 29 No. 8; Schlechtriem, Internationales UN-Kaufrecht (1996) 23 n.50, 99 n.100

Spanish: Piltz, La Ley (Buenos Aires: 5 September 1994) 1-4 n.11, n.20, n.25, n.26

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

District Court (Landgericht) Aachen

14 May 1993 [42 O 136/92]

Translation [*] by Stella Heyken [**]

DECISION

1. Plaintiff [hereinafter referred to as Seller] is domiciled in Germany and Defendant [hereinafter referred to as Buyer] is domiciled in Italy. Jurisdiction is based upon Art. 5(1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. According to this convention, a person who is domiciled in one of the Contracting States can be sued before the courts of the place where the obligation giving rise to the dispute had to be performed.

2. Buyer had the obligation to take over the electronic hearing aids. In accordance with laws on conflict of laws, the place where the obligation, which is part of the claim, had to be performed, determines the law that is decisive (EuGH [*], NJW [*] 1977, 4911; BGHZ [*] 74, 136, 1392). The relevant law is the United Nations Convention on Contracts for the International Sale of Goods (CISG), which was ratified in Italy on 1 January 1988 and in Germany on 1 January 1991. This Convention applies to contracts of sale of goods between parties whose places of business are in different States when contract was concluded after 1 January 1991.

According to Art. 60(b) CISG, the buyer's obligation is to take over the goods. The place of taking delivery is not regulated by law, therefore the place is dependent on the place of delivery by the seller. This is regulated according to Art. 31 CISG, which foresees in Art. 31(b), (c) CISG the obligation to obtain the goods (cf. v. Caemmerer/Schlechtriem/Huber Art. 31, para. 53).

           aa) According to its Art. 4, the CISG is not concerned with the validity of the settlement agreement; that issue governed by German domestic law.

[...]

     d) Rules of frustration or economic hardship (Wegfall der Geschäftsgrundlage) under domestic law or domestic law challenges having to do with mistake as to the quality of the goods are irrelevant because the CISG fills the field in these areas (cf. v. Caemmerer/Schlechtriem/Herber Art. 4 para. 13, 14).

3. Buyer was obliged to take over the electronic hearing aids which were provided by Seller according to Art. 60 CISG. Buyer did not take over the goods.

4. Seller was entitled to claim damages according to Arts. 61(1)(b), 63 CISG, since it set an additional period of time to Buyer to perform its obligations, and the Buyer did not perform its obligations during that time.

5. Seller incurred proportionate damages in the amount of 7,752 Deutsche Mark because Buyer did not take over the electronic hearing aids. However, Buyer could not foresee that Seller would be liable to its distributor if Buyer did not take over the goods.


FOOTNOTES

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

Translator's note on other abbreviations: EuGH = Europäischer Gerichtshof [European Supreme Court]; BGHZ = Entscheidungen des Bundesgerichtshof in Zivilsachen [Decisions of the Supreme Court in civil cases]; NJW = Neue Juristische Wochenschrift [German weekly judicial magazine].

** Stella Heyken is a law student at the University of Osnabrück, Germany.

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Pace Law School Institute of International Commercial Law - Last updated December 2, 2005
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