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CISG CASE PRESENTATION

Germany 11 November 1993 District Court Köln (Market research study case)
[Cite as: http://cisgw3.law.pace.edu/cases/931111g1.html]

Primary source(s) for case presentation: CISG online case overview; case commentary


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Case identification

DATE OF DECISION: 19931111 (11 November 1993)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 86 O 119/93

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

CASE HISTORY: 2nd instance OLG Köln 26 August 1994 [reversing]

SELLER'S COUNTRY: Switzerland (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Market research study


Case abstract

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

Rejecting a notice "time frame of twenty-one days after delivery, the Court stressed that this was because the buyer knew that the seller had a deadline to comply with which would necessitate a speedier examination and notification. The case involved the sale of business-catalogue space, and the Court stated that since the mistake in the twenty-two pages was discoverable within a few hours of delivery on 4 August 1992 and the buyer knew the seller had a deadline on 4 September 1992, an examination and notification should have been carried out sooner according to Article 38. Since no notice was given within reasonable time after the mistake should have been found, the buyer could not rely on the non-conformity. The Court clearly stated that the Article 38 examination period could be set at a few days, but does not mention within which period the subsequent notice should have been delivered. Nevertheless, the emphasis placed by the Court on the deadline in question would seem to suggest that a combined Article 38/Article 39 period of twenty-one days after delivery definitely was not considered untimely per se, but that the findings were based on the actual foreseeable detriment to the seller by the notice in question." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 115. The case was reversed on appeal, but on different grounds: the OLG Köln 26 August 1994 held that the CISG did not apply as this was neither a contract for the sale of goods (Article 1(1)), nor a contract for the production of goods (Article 3(1)).

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Classification of issues present

APPLICATION OF CISG: Yes [reversed on appeal]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1(1)(a) ; 38 ; 39(1) ; 78

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Examination of goods ; Lack of conformity notice, timeliness

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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

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/200.htm>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: For a survey of close to 100 judicial and arbitral rulings on Article 39(1), Go to the 1998 Pace essay on this subject by Camilla Baasch Andersen; Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act (2000) 4.4.1.4 [analysis of related articles 38, 39, 40 and 44 (includes digests of relevant material in many CISG cases; also digests cases under a domestic sales code that is patterned, for the most part, after the CISG)]; 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); 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]

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Pace Law School Institute of International Commercial Law - Last updated December 1, 2004
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