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Germany 2 July 1993 Appellate Court Düsseldorf (Veneer cutting machine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/930702g1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19930702 (2 July 1993)


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

JUDGE(S): Unavailable


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

CASE HISTORY: LG Krefeld 15 December 1991 [affirmed] [OLG Düsseldorf 2 July 1993 cited in CA Grenoble 23 October 1996]

SELLER'S COUNTRY: U.S.A. (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Veneer cutting machine

Case abstract

GERMANY: OLG Düsseldorf 2 July 1993

Case law on UNCITRAL texts (CLOUT) abstract no. 49

Reproduced with permission from UNCITRAL

The plaintiff, a German buyer of a knifecutting machine, demanded damages for personal injury caused by, and repair costs of, the machine, which the plaintiff had bought from the defendant, a manufacturer situated in Indiana,U.S.A., and installed in a Russian furniture factory. The court of first instance found in an interim judgement that it had jurisdiction. The defendant appealed.

The appellate court dismissed the appeal and found that the court of first instance had jurisdiction under the provisions of the German code of civil procedure granting jurisdiction to the court of the place where the disputed obligation, in the present case the obligation to payment of damages, was to be performed. In order to determine the place where damages were payable, the appellate court applied CISG as part of the law of Indiana, which was applicable under German private international law. The appellate court held that article 57(1)(a) CISG, providing that the purchase price is payable at the place of business of the seller, indicated a general principle that claims for payment of money, including damages for breach of contract arising under articles 45 and 74 CISG, were payable at the place of business of the claimant, who in the present case was the German buyer.

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Classification of issues present

APPLICATION OF CISG: The tribunal held the CISG applicable pursuant to Article 1(1)(b) [cf. issue of inapplicability by virtue of an Article 95 declaration]


Key CISG provisions at issue: Articles 1(1)(b) ; 3(1) ; 5 ; 7(2) ; 57(1) ; 74 ; 95 [Also cited: Articles 6 ; 45 ]

Classification of issues using UNCITRAL classification code numbers:

1B22 [Basic rules of applicability, (private international law points to Contracting State): reservation under Article 95 providing that Contracting State will not be bound by Article 1(1)(b)];

3A [Convention applies to goods that are to be manufactured];

5A21 [Exclusion of claims based on death or personal injury: applicability of Convention to "product liability"];

7C22 [Recourse to general principles on which the Convention is based: rule set forth in Article 57 is an expression of the general principle that obligations to pay (obligation to pay damages in this case) are to be performed at the obligee's place of business];

57A [Place for payment: in absence of agreement, payment at seller's place of business];

74A [Damages, general rules for measuring: loss suffered as consequence of breach]

Descriptors: Applicability ; Scope of Convention ; Choice of law ; General principles ; Jurisdiction ; Payment, place of ; Damages ; Death or personal injury ; Declaration, Art. 95

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Editorial remarks

EDITOR: Albert H. Kritzer

Applicability. At the time the contract was concluded, the CISG was not in effect in buyer's country (Germany) but was in effect in seller's country (United States). Pursuant to Article 1(1)(b), the court ruled that private international law points to the U.S. (a Contracting State) and held the CISG applicable. The court so ruled without reference to the fact that, pursuant to Article 95, this Contracting State had declared that it would not be bound by Article 1(1)(b). The court further held the CISG applicable to a contract for goods to be manufactured.

Gap-filling by domestic law/Jurisdiction and venue/Payment, place of. The CISG does not rule on jurisdiction and venue. However, the CISG rules on place of payment (Article 57(1)(a)). The court ruled that place of payment determines jurisdiction under the applicable gap-filling law.

Damages/Payment, place of/General principles of the Convention. The CISG contains no express provisions on place of payment of damages. The CISG does, however, provide that payment of the price is to be made at the obligee's place of business (Article 57(1)(a)). Referring to Article 7(2) (general principles of the CISG), the court ruled that damages should similarly be payable at the obligee's place of business.

Damages, elements of. Pursuant to Articles 45(1) and 74, the court allowed as damages the cost to repair the goods (readily calculable as money damages) and an indemnification of buyer's obligation to a third party.

Damages = claim for money vs. restoring obligee to its status quo ante/Personal injury, liability for. The obligation to the third party was to satisfy an injury claim that stemmed from defects in the goods sold. The court ruled that indemnification of such an obligation is an allowable element of damages under the CISG. The court so held without reference to the rule under Article 5 that the CISG "does not apply to the liability of the seller for . . . personal injury caused by the goods to any person."

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Citations to other abstracts, case texts and commentaries


English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=26&step=Abstract>

French: Droit et pratique du commerce international (1994) 97

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit international et de droit européen 1995, 272-273; Entscheidungen zum Wirtschaftsrecht (EWiR) 1993, 1075

Italian: Diritto del Commercio Internazionale (1994) 858-859 No. 42

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 244


Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/74.htm>; Recht der Internationalen Wirtschaft (RIW) 1993, 845-846; Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre (IPRspr) 1993 No. 144, 323-325; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=26&step=FullText>

Translation (English): Translation by Institute für Ausländisches und Internationales Privatrecht, Director: Peter Schlechtriem (this translated text is presented below); translated text by Michael Hecker, 16 Journal of Law & Commerce (1997) 357-362


English: Ferrari, International Legal Forum (4/1998) 138-255 [177 n.336 (criticism of failure to heed Art. 1(1)(b))]; Gillette/Walt, Sales Law Domestic and International (Foundation Press 1999) 31-32 [application of Art. 1(1)(b)]; Lookofsky, Understanding the CISG in the USA (Kluwer 1995) 12 n.11, 14 n.24, 21-22 [adaptation presented below]; Lookofsky, Understanding the CISG/Scandinavia (1996) 20 n.53, 28; Bernstein/Lookofsky, CISG/Europe (1997) 17 n.45, 26, 142 n.37; Van Alstine, 146 University of Pennsylvania Law Review (1998) 749 n.257 [general principles: place for payment of damages]; Honnold, Uniform Law for International Sales (1999) 110 [Art. 7(2) (general principles: place for payment of damages)]; Schlechtriem in Guide to Practical Applications of the UN Convention on Contracts for the International Sale of Goods, Kritzer ed. (Kluwer 1994), vol. 2, suppl. 9 [text presented below]; Karollus, Cornell Review of the CISG (1995) 51 [56-57, 58, 59 , 74, 75-76] [comments on issues under Articles 1, 3, 5, 6 and 74 and on jurisdiction and venue in the context of German case law on the CISG]; Curran, 15 Journal of Law and Commerce (1995) 175-199 [179-180 and 181-183] [English summary of comments by Witz cited below] [comments on application of the CISG and on questions not governed by the CISG]; Bonell/Liguori, Uniform Law Review (1996-1) 147 [154 n.39, n.40]; Koneru, 6 Minnesota Journal of Global Trade (1997) 105 [120 n.69]; Huber, ibid, [jurisdiction at the place of performance] 373 n.118; Hager, ibid, [place of payment of damages claim] 481 n.4 n.8; Stoll, ibid, [Art. 74] 564 n.89; Leser, ibid, [jurisdiction and place of payment] 642 n.37a; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.34; Brandner, Admissibility of Analogy in Gap-filling under the CISG (1999) n. 136 [place of payment of damages, etc.]; Kazimierska, Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) n.380; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-6 n.83; § 2-11 n.175; § 8-7 n.40; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 5 para. 7 Art. 57 para. 25 Art. 81 para. 18 Art. 74 para. 27; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 32

French: Witz, Les premières applications jurisprudentielles du droit uniforme de la vente internationale (L.G.D.J., Paris: 1995), 28-31, 39-40 82 n.11 n.12, 86 n.28

German: Huber in von Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht (2d ed. 1995) 425 n.118 [Art. 45]; Karollus, [österreichisches] Recht der Wirtschaft (öRdW) 1994, 386-387; Schlechtriem, Enscheidungen zum Wirtschaftsrecht (EWiR) Art. 1 CISG 1/93, 1075-1076; Staudinger-Magnus (1994) Art. 1 No. 117, Art. 96 No. 6; Schlechtriem, Internationales UN-Kaufrecht (1996) 25 n.54

Italian: Liguori, Foro italiano (1996 IV) 145 [157 n.60, n.61]

Spanish: Bueno, Cuatro casos relacionados con la Convención de Viena Sobre Compraventas Internacionales de 1980, Thesis, Universidad Panamericana (Mexico, D.F. 1996) 116-138; Perales, Cuadernos Jurídicos 3 (1996) No. 3, 5 [7 n.24]; Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 158-159

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Case text (English translation)

OLG Düsseldorf 2 July 1993 - 17 U 73/93

Translation by Institut für ausländisches und internationales Privatrecht, Albert-Ludwigs-Universität Freiburg


Claims for payment under the CISG are generally to be tendered at the seller's place of business. This shall also determine the forum for such claims in accordance with §29 Code of Civil Procedure.


Plaintiff buyer had its place of business in Krefeld, Germany. Buyer purchased a cutting machine from defendant seller, whose place of business was located in Indiana, U.S.A. The cutting machine was to be installed in the veneer processing unit of a Russian furniture combine. After the machine had been put into operation, an accident occurred which led to the death of a worker and caused injuries to another. Subsequently the Russian sub-purchaser demanded repair of the defective machine from buyer, whereupon buyer sued to recover the costs of repair from seller. In its complaint, buyer also moved for a declaratory judgment from the court establishing that seller was required to indemnify buyer against all damage claims raised by the Russian sub-purchaser and furniture combine with respect to the accident in dispute.

Seller contested the local jurisdiction of the Krefeld District Court which, in an interlocutory decision, held that it had local and international jurisdiction over the matter. The court based its findings on §23 Code of Civil Procedure, stating that the defendant seller had assets in the local forum. In its appeal from the interlocutory judgement, seller claims that §23 ZPO is not applicable to the jurisdictional issue. The appeal is not meritorious.


The District Court was correct in asserting international jurisdiction over the issue in dispute.

In general, a German court can assert international jurisdiction over a matter whenever the court, according to German Procedure Law, also has local jurisdiction over the matter in dispute. (BGH NJW - RR 1991, 423, 424; NJW 1991, 3092, 3093). Therefore, before the issue of international jurisdiction can be resolved, the local jurisdiction of the court of first instance has to be established. This does not come into conflict with §512(a) ZPO pursuant to which appeals related to pecuniary issues of law may not be based on contested local jurisdiction (OLG Saarbrücken NJW 1992, 987).

The Krefeld District Court has local jurisdiction

I....II. Pursuant to §29 Par. 1 ZPO, jurisdiction over contractual disputes shall be in the forum where the performance at issue is to be tendered. In this case, the forum is in Krefeld.

       1. Indiana law determines the place of performance for the claims raised in the complaint. This follows from Art. 28 EGBGB (Conflict of Law provision in the Introductory Law of the German Civil Code). This provision provides that the law of the place where the contractor's headquarters is located shall be applied to contracts for work and materials (Palandt/Heldrich, BGB 52nd edition 1993, Art. 28 EGBGB n.14). The contracting parties entered into a contract for work and materials with respect to the cutting machine. The seller contractor maintains its business headquarters in Indiana. Therefore, the laws of this state are applicable.

The UN Convention on the International Sale of Goods from April 11, 1980 ("the CISG") has been in force in Indiana since January 1, 1988 - hence, effective at the time the contract was concluded by the parties in dispute. Consequently, the provisions of the CISG govern the contract between the parties pursuant to Art. 1 Par. 1(b) and Art. 3 Par. 1 of the CISG.

By contrast, German law would apply, had the parties agreed to its applicability in accordance with Art. 6 of the CISG, 27 EGBGB. In this event, the CISG would not have been relevant because in Germany it entered into force on January 1, 1991 which was after the formation of the contract (BGBI.II, 1477). Nonetheless, the parties never agreed to the applicability of German law [...].

       2. Based on the provisions of the CISG, the complaint asserts claims for indemnification pursuant to Art. 45, 74 of the CISG. Indemnification is to be rendered at the place where the buyer has its principle place of business which is Krefeld.

The place of performance for the indemnification claim pursuant to Arts. 45, 74 of the CISG, however, is not set forth by the CISG. It is determined from the Convention's general principles which are derived from Art. 7(2) of the CISG. Art. 57(1)(a) the CISG provides - in contrast to the German law on sales - that the duty to tender payment of the purchase is an obligation to be performed at the seller's place of business. Accordingly, the place of performance is where the seller maintains its principle place of business (Schlechtriem/Hager, Kommentar zum Einheitlichen UN-Kaufrecht, 1990, Art. 57 n.10). Therefore, if the place where payment is to be tendered - at the same time determinative of the jurisdictional forum - is the seller's place of business, it then seems to be appropriate to recognize this as a general rule governing the place of performance for all claims for payment under the CISG. The reasoning behind a rule governing the place of performance for claims for the purchase price are just as applicable to other claims for payment. The claim that seller should be required to take over buyer's liability to buyer's sub-purchaser pursuant to Arts. 45, 74 is keyed to payment of money (Schlechtriem/Stoll, et. al., Art. 74 n.19). Consequently, performance is to be tendered at the seller's principal place of business.

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Case commentaries

Reproduced from International Contract Manual: Guide to UN Convention, Suppl. 9 (Kluwer: April 1994), Case Commentaries: Germany 3

Commentary on Oberlandesgericht Düsseldorf 2 July 1993

Peter Schlechtriem

Digest of commentary

Professor Schlechtriem faults the court for failure to oust the Convention on two counts:

(i) With respect to the applicability of the Convention. There was an Article 95 reservation. Therefore the Convention could not be applied to a contract with a party having its place of business not in a Contracting State.

(ii) With respect to the personal injury issue. In Schlechtriem's judgment, Article 5 should refer the court to domestic law and not the CISG for the resolution of a buyer's claim against a seller having to do with a third-party claim against the buyer for injuries to the third party due to defects in the goods sold.

Had the CISG applied, Schlechtriem questions the court's expansion of the Convention's damages remedy beyond requiring a payment of money. Schlechtriem concurs with the court's ruling that under the CISG damages, like price, should be paid at the obligee's place of business. He also calls attention to the impact that the CISG rules on place of payment may have on domestic rules on jurisdiction and venue.

Case Commentary


The decision of the Düsseldorf Court of Appeals, although dealing primarily with problems of jurisdiction and venue and overlooking that the CISG, on which the decision was based, was not applicable, is nevertheless interesting in terms of the issues addressed.

A firm in Germany had bought a machine from a manufacturer in Indiana, U.S.A., and delivered to a company in Russia where defects in the machine had caused an accident resulting in the death of a workman and injuries to others. The German buyer sued for the costs of repair and demanded that the court find the American seller obligated to discharge the German buyer from any liability toward the Russians.

Applicability of the CISG: effect of an Article 95 reservation

At issue was the jurisdiction and venue of the German courts. Under the German Code of Civil Procedure §29 (as under Art. 5, No. 1 of the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters), jurisdiction and venue are "docked" onto the place of performance. Therefore, the applicable sales law and its provision regulating the place of performance for the German buyer's claims had to be determined. Since at the time of the formation of the sales contract Germany had not yet enacted the Convention, although the U.S.A.had already been a Contracting State, the CISG could not be applied pursuant to Art. 1(1)(a). Following the German conflict of law rules, the court held that Indiana law (as the law of the seller's place of business) was applicable and erroneously found this to be the CISG since the U.S.A. had enacted the Convention. The court ignored, however, that the U.S.A. was one of the few Contracting States which had invoked the reservation under Art. 95 the CISG, thereby not enacting Art. 1(1)(b), the only the CISG provision making the Convention applicable, in the event of one or both parties not having their place of business in Contracting States (see footnote 1).

If we assume that the CISG were applicable, the sales law issues raised would be intriguing.

Payment, place of payment of claim for damages

First, the Convention, indeed, is silent on the question where a claim for damages is to be complied with. Must the obligor send payment at his own risk and cost to the obligee's place of business? This is the basic solution with regard to the sales price in Art. 57(1)(a) of the CISG. In my opinion, the underlying principle is a general one and can be used as a gap filler under Art. 7(2) of the CISG. Therefore, the first step the court applied in determining the place of performance for the obligation, concluding that the seller had to pay damages at the buyer's place of business, was correct (see footnote 2). The European Court of Justice and the German Supreme Court both have decided, however, that claims for damages arising out of a breach of contract must be satisfied at the place of delivery, i.e., the place where the seller was obligated to deliver the goods (see EuGH NJW 1977, 490; BGHZ 98, 263, 272). Although application of the EuGH and BGHZ rule to the EuGH/BGHZ facts would also support the buyer's place of business as the place of performance, the application of this rule to a Düsseldorf set of facts in which Russia were the place of delivery would require the payment of damages to be made in Russia. The better rule derived from Articles 57(1) and 7 is that such payment is to be made at the obligee's place of business.

Jurisdiction and venue for action

The second step, however, was more questionable. The link between the place of performance and jurisdiction and venue under German law has the undesirable result that the creditor can sue at home, i.e., his place of business. This has the unfortunate consequence that if, for example, in the case of the Düsseldorf Court the (agreed) place of delivery had been the place of business of the buyer's customer in Russia, jurisdiction and venue would have been there - even though Russia has no other contact with the transaction.

To avoid the hardship to an obligor of being sued in a remote jurisdiction, the German Civil Code provides that the place of performance, as far as it determines jurisdiction and venue, shall be located at the obligor's place of business or domicile. The German delegation at the UN Conference in Vienna proposed an amendment to Article 57 providing that "Jurisdiction of the courts of the seller's place of business in proceedings brought against the buyer for payment of the price cannot be derived from the provisions of [Article 57(1)(a)]." However, the majority of delegates thought that such an amendment would transgress the assembly's powers because it would influence national rules of civil procedure; the motion, therefore, was denied. Where domestic rules on jurisdiction contain the same linkage between the place of performance and jurisdiction as the German law, this can lead to the undesirable consequences of a forum at the obligee's place of business. Hence, unless the contract provides otherwise, parties might find themselves being sued in rather remote jurisdictions - not only for the purchase price but for damages as well. A remedy for parties concerned over such consequences is to insert in their contracts a suitable arbitration clause or choice of forum clause.

The remedy of damages

Thirdly, in this case the German buyer, having become liable to its Russian sub-purchaser, had not yet paid damages. The buyer asked the court to require the American seller to take over the buyer's obligation to the buyer's sub-purchaser. The court assumed that the remedy of damages might require the liable party not only to pay money damages but also to take over as obligor the buyer's liability where such liability resulted from a breach of contract by the seller. This is far from self-evident: Although the court's desire to bring buyer's claim under Articles 45, 74 is understandable, leading scholars contend that a claim for damages means a claim for money, not for restoring the obligee's situation to its status quo ante. Therefore, one should not regard as resolved the question whether a buyer "damaged" by his liability toward his customers might sue under Articles 45, 74 to require seller to take over buyer's liability instead of for money.

Personal injury, liability of seller for; indemnification for

The final issue arising from this case is whether the German party had a claim for damages at all as far as the liability towards the Russian sub-purchaser for the death and bodily injuries of the workmen were concerned. Article 5 of the CISG exempts claims for death and bodily injuries from the ambit of the Convention; domestic rules on product liability are not supposed to be "disturbed" by the Convention. The problem made visible by this case is whether his exception applied also if not the injured party himself sues the seller but the liable buyer. The buyer himself has sustained no physical injuries and his liability is an economic loss often well within the bounds contemplated by the parties to the contract. In such a given scenario is his claim for damages excluded under Article 5 of the CISG, too? I think so, and so does the majority of scholars in Germany (see Schlechtriem/Stoll), Art. 74 the CISG Rn. 35; Reinhart Art. 5 the CISG Rn. 3; see also Honnold, "Uniform Law for International Sales Under the 1980 United Nations Convention", 2d ed. (Kluwer 1991), pp. 119-120). If the buyer were allowed to claim his sub-purchaser's injuries as damages of his own, product liability would indeed collide with sales law remedies under the Convention (see Schlechtriem, 21 Cornell Int'l L.J. 467 (1988).

Hard cases make not only bad law, they can also elucidate gaps and problems of codes and conventions. This, at least, was achieved by the Düsseldorf Court of Appeals.


1. By using the Article 95 reservation, Article 1(1)(b) is omitted in the enactment of the Convention in the ratifying State. Courts in this State can apply the CISG only if the requirements of Article 1(1)(a) are met, i.e., if both parties have their places of business in Contracting States. Likewise, if the conflict of law rules of a foreign court lead to the application of the sales law of a State that has taken an Article 95 reservation (such as the United States), the foreign court can apply the CISG as U.S. sales law only if both parties have their places of business in Contracting States.

2. Enderlein & Maskow are to the same effect, stating "The rule in [Article 57(1)] only mentions the 'price', but is to be applied, as we believe, also to other payments under the contract, like the payment of damages, liquidated damages, interests and reimbursement of expenses. Since there is not regularly a direct dependence between performance and counter-performance, and in particular no contemporaneous performance, this refers above all to subpara. (a) [of Art. 57(1)] with the 'seller' having to be read as the 'obligee' and the 'buyer' as 'obligor'" ("International Sales Law: United Nations Convention on Contracts for the International Sale of Goods; Convention on the Limitation Period in the International Sale of Goods" (Oceana Publications 1992), p. 215).

OLG Düsseldorf 2 July 1993 - 17 U 73/93

Addendum by Joseph Lookofsky

With the permission of Professor Lookofsky, this addendum is adapted from comments on this case contained in his text, Understanding the CISG in the USA (Kluwer 1995) 21-22

In OLG Düsseldorf 2 July 1993, the court ruled that for purposes of determining its "long arm" jurisdiction (the jurisdiction of European courts in sales cases) vis-a-vis an American (defendant) seller, the place at which that seller was to pay damages -- if such seller were ultimately held liable to a German (plaintiff) buyer in respect of personal injury claims brought against that buyer by a Russian third-party purchaser (the claims were in respect of that purchaser's employees claims against him) -- was a matter "governed-but-not-settled" by the CISG (see CISG Article 7(2) for the source of this governed-but-not-settled language).

The court cited Article 57(1)(a), which deals expressly with the buyer's duty to pay the price, as evidence of a "general principle" that all "payments" (including damages for a CISG breach) are to be made at the creditor's place of business. And since the plaintiff/buyer's business was in Germany, the German court held it had jurisdiction to decide the case. In his commentary, Professor Schlechtriem criticizes the decision on various grounds. The court's application of Article 7(2) should be tacked onto his list.

The court's use of Article 7(2) to determine the place of damages payment has no meaning unless the payment of damages is the relevant "obligation" for German procedural purposes, which is not the case: in an action by a German buyer against an American seller seeking indemnification against possible third party personal injury claims, the relevant obligation is the seller's (Article 35) duty to deliver conforming goods. Re German law see Huber in v. Caemmerer/Schlechtriem, Kommentar, Art. 45, Rd.Nr. 64 (with note 117 citing the German Supreme Court decision in a ULIS case: BGHZ 98, 263, 272) and BGHZ 78, 257, 261; see also the decision of Oberlandesgericht Koblenz: 2 U 1795/89, IPRax 1991, 241; but see Herber id., Art. 7, Rd.Nr. 41 and Schlectriem at EWiR Art. 1 CISG 1/93, 1075-1076. (My special thanks to Professor Herbert Bernstein for his research and observations in this regard.)

Even assuming, arguendo, that the payment of damages is the relevant observation, I would still challenge the German court's application of Article 7(2), in that the issue of where a judgment debtor is to pay damages is hardly a "matter . . . governed by" the CISG. I would, however, certainly apply Article 57(1)(a) to determine the buyer's obligation to pay the price and would not hesitate to "borrow" this substantive rule to resolve the corresponding jurisdictional issue in an action for the price brought under Article 5(1) of the Brussels Convention and similar national rules: see (e.g.) the recent decision of the European Court in the Custom Made case (C-288/92). The contrary view expressed by Professor Honnold (Uniform Law for International Sales, 2d ed., Kluwer 1991, at 417-18) thus conflicts with the clear weight of European court practice and scholarship, and his assertion that "there is no necessary connection between the place of performance and the place of suit" in U.S. law might seem misleading (e.g.) in light of the Burger King case (471 U.S. 462), where jurisdiction in Florida was based, inter alia, on the franchisee's contractual obligation to pay in that State; see also Lookofsky, Transnational Litigation and Commercial Arbitration (New York and Copenhagen 1992), Ch. 2.2.2.

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