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CISG CASE PRESENTATION

Switzerland 17 May 1994 Appellate Court Vaud (Industrial machinery case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940517s1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19940517 (17 May 1994)

JURISDICTION: Switzerland

TRIBUNAL: Tribunal Cantonal Vaud [Canton Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 01 93 1308

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Switzerland (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Industrial machinery with base


Case abstract

UNCITRAL prepared two abstracts for this case: CLOUT nos. 96 and 200

SWITZERLAND: Tribunal cantonal de Vaud 17 May 1994

Case law on UNCITRAL texts (CLOUT) abstract no. 96

Reproduced with permission from UNCITRAL

The Swiss buyer of industrial machinery applied for a provisional measure requesting the German seller to deposit in the warehouse of a third party a device retained by the seller in its premises, which was necessary for the operation of the machinery delivered but not fully paid for. The seller invoked, inter alia, Article 87 CISG, arguing that the buyer should bear the cost of the deposit of the device in a warehouse.

The court found that CISG was applicable. However, it held that, as long as its order was in accordance with cantonal rules of procedure, it was not bound by CISG on the matter of the expenses of the deposit, since that was a procedural matter and the Convention applied only to substantive law matters.

Case law on UNCITRAL texts (CLOUT) abstract no. 200

Reproduced with permission from UNCITRAL

The Swiss plaintiff, buyer, concluded a contract with the German defendant, seller, for the purchase of a machine. The buyer paid two installments of the purchase price, but refused to pay the balance. Therefore, the seller did not deliver the base of the machine, a part without which the machine was worthless to the buyer. The seller threatened to sell the machine part to someone else if the buyer did not pay the balance.

Consequently, the buyer made an application to the court seeking a preliminary injunction prohibiting the seller from selling the machine part. In a counter-claim, the seller applied to the court for either permission to sell immediately the machine part based on article 88 CISG or, alternatively, for permission to store it at the buyer's expense pursuant to article 87 CISG.

The court stated that, when deciding on interim measures, it had to limit itself to a cursory examination of the merits of the case. Therefore, the question of determining whether the claims were justified or not was not decided on the basis of the CISG but rather in accordance with the Swiss lex fori. The court did not touch upon whether the CISG was applicable to the merits of the case. The court granted the buyer's application for a preliminary injunction and also permitted the seller to store the machine part, albeit at its own expense.

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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 ; 87 ; 88 [Also cited: Article 2(b) ] [Also relevant: Article 85 ]

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Scope of CISG (issues covered/excluded): property in the goods; Expenses of deposit of goods in warehouse];

87A [Preservation of goods by deposit in warehouse];

88A [Sale of goods by party obligated to preserve them]

Descriptors: Scope of Convention ; Property in the goods ; Storage of goods ; Resale of goods

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Editorial remarks

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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=301&step=Abstract>

French: Revue de Droit des Affaires Internationales (1995) 1013 [CLOUT abstract]

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/ Revue suisse de droit international et de droit européen 1995, 278

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 259

CITATIONS TO TEXT OF DECISION

Original language (French): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=301&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [253 n.1079 (interest issues)]; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.819 ("Under Article 88, the sale of goods may be by 'any appropriate means' if there has been an unreasonable delay by the other party in taking possession")

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Tribunal Cantonal [Appellate Court] Vaud 17 May 1994

Translation [*] by Annabel Teiling [**]

Ruling on provisional measures in the cause of action between the plaintiff of Switzerland and the defendant of Germany. Hearing of 15 February 1994. Under the Presidency of Mr. Battistolo, Magistrate Clerk : Mrs. Schwarb, deputy public prosecutor.

[...]

RULING IN CAMERA

The magistrate notes the following:

1. Plaintiff-Appellant Josef Baggenstos [buyer] operates a mechanical manufacturing business in Wangen, in the Canton of Schwyz, [Switzerland]. Defendant-Respondent Manfred Opp [seller] runs an auction company in Düsseldorf, Germany.

2. On 1, 2 and 3 July 1993, the [buyer] organized an auction at the premises of Société "Vevey" Technologies SA [Company V] in Vevey, Switzerland. [...]

After the above mentioned auction, thus in all likelihood by mutual agreement, the [buyer] acquired from the [seller] an industrial machine ("centre d'usinage")"CNC Mandelli", with all its accessories, for the price of Sf [Swiss francs] 315,500.-. The bill relating to this transaction is dated 28 July 1993. Originally written in German, it may be translated and summarized in the following manner (partial translation):

Swiss francs
Item 540 Machinery CNC Mandelli   300,000.-
Item 540a 80 tools for Baz Mandelli     15,000.-
Item 540b   Cost of removal for transportation            500.-
          Net total   315,000.-

The amount of Sf 15,500 was stipulated: payable at the Anlage -und Kreditbank, in Zürich, on receipt of the aforementioned bill, without any deductions. The [seller] deducted no auction commission (Auktionsgebühr).

3. The industrial machinery acquired by the [buyer] is composed, notably, of two distinctive parts: the machine itself and the support base on which the machine must be installed. In reference to the statements of the parties, it seems that the machine, of which the [buyer] has taken possession since August 1998, is unusable without its support base, which remained in the premises of [Company V] where the sale was organized and the [seller] was still a tenant the day of the ruling on provisional measures. The [buyer] estimates the value of the support base at approximately Sf 80,000.

On 26 August 1993, the [buyer] settled a first payment of Sf 165,000 with the [seller]. On 15 September 1993, the [seller] sent [buyer] a reminder of the agreed sales price: Sf 150,000 remained due. On 30 September 1993, the [buyer] made a second payment of Sf 120,500. A balance remained; a new reminder was addressed to the [buyer] on 11 November 1993.

During this time, the [buyer] had the machinery moved to a rescuer's premises. Since the support base (Maschinenhett; hereinafter: [base]) of this piece of equipment was missing, [buyer] put a Transporter in charge to take possession of it at the premises of [Company V]. That operation was unsuccessful, the [seller] subordinated the delivery of the [base] to the payment of the remainder of the sales price. At the hearing on provisional measures, the Transporter brought in witnesses for the recount of that day's events and reported this summary of the facts on 8 November 1993 in Vevey. After having loaded the [base] on its truck, [buyer] was told by an agent of the [seller] to unload it, which forced [buyer] to return home empty-handed. For this unsuccessful transportation, [seller] sent the [buyer] a bill for Sf 1,480.

4. By letter dated 11 November 1993, the Swiss-German counsel of the [buyer], asked that the [base] of the machinery be released immediately. [Seller] stated that its client had become its owner by a sale that was concluded without any restrictions of property in the [base] in favor of the [seller]. In this letter, it moreover indicated that the [buyer] was planning on presenting the [seller] with counterclaims (constituted essentially by the brokerage commission linked to the auction organized in July), so that the amount of the bill of 28 July 1993 could not be demanded anymore. It is not established whether these counterclaims were previously raised.

By letter of 18 November 1993 in reply to the above named counsel, the [seller] contested that the [buyer] had counterclaims against [seller]. [Seller] stated that the [buyer] still owed it the amount of Sf 34,222.50 (Sf 30,000 for the payment of the sales price of the machinery plus Sf 4,222.50 for the acquisition of a milling machine operator "Reiden"). [Seller], moreover, fixed a due date of 15 December 1993 for the [buyer] to comply. [Seller] stated that if the [buyer] did not comply, [buyer] would be charged for all of the costs and [buyer] would not be able to obtain the [base] for the machinery.

5. On 26 November 1993, [seller] concluded an agreement with [Company V] (an endorsement of an earlier contract of 17 February 1993). A result of this agreement is that the [seller] committed itself to vacate the premises of [Company V] -- to remove all the goods that were stored there -- by 31 December 1993; the [seller] could, nevertheless, continue to use the premises by bearing the costs of the water, the electricity and the heat, but it had to remove all goods by 11 March 1994 at the latest. If this ultimate date passed, the [seller] would be liable for a contractual penalty of Sf 200,000, if machines were still stored in the premises at that date. The [seller] thereupon gave [Company V] an assurance check for Sf 200,000, dated for cashing on 12 March 1994.

On the day of the hearing on provisional measures, the machinery [base] at issue in this litigation was still at the premises of [Company V].

6. Many letters were subsequently exchanged between the parties. On 1 and 16 December 1993, the [buyer] successively fixed an extended a due date to 15 December and then to 22 December 1993 to settle the amount of 34,222.50 Sf; with this extension it was specified that if [seller] did not carry out its part of the deal, the [base] of the machinery would be moved at [seller]'s expense to a third party location, considering the obligation of the [seller] to vacate the premises. On 16 December 1993, the [seller] once more notified [buyer's] counsel in Vaud, of the contractual penalty of Sf 200,000 stipulated in the [seller]'s agreement of 26 November 1993 with [Company V], thus of the absolute necessity to vacate in full the premises of [Company V] before 11 March 1994.

7. The [buyer] did not comply. In a letter to the [seller] dated 9 December 1993, [buyer]'s counsel calculated for the first time the amounts of the counterclaims of its client at Sf 191,130. This amount ensued mainly from brokerage commissions for the role the [buyer] would have played in the negotiation of certain matters linked to the July auction. Admitting the balance of Sf 34,222.50, demanded by the [seller], the [buyer] concluded that the [seller] was definitely its debtor for Sf 163,501.50 (Sf 191,130 minus Sf 34,222.50), an amount that [buyer] was willing to reduce to Sf 150,000 for transactional purposes.

8. By application for pre-provisional measures and provisional measures of 9 December 1993, [buyer] submitted that any changes in the status of the said [base] would be prohibited until the applicable law on the procedure of provisional measures was determined with respect to expenses regarding the impoundment of the [base] stored in the premises of [Company V]; all changes in status of the [base] would be prohibited under the threat of sanctions anticipated by article 292 of the Penal Code. [Buyer] thus submitted that it was exempted from supplying bail or a deposit in reference to article 107 CPC.

On 10 December 1993, the Magistrate of the Civil Court handed down an order of provisional measure prohibiting [seller] exporting or selling the [base] purchased by [buyer] on 28 July 1993, under the threat of orders and fines provided by article 292 of the Civil Code in the event of lack of submission to an authoritative decision.

9. By fax on 11 February 1994, the [seller's] counsel granted to the [buyer] an ultimate extension to 16 February 1994 for discharge of the amount due. [Seller] emphasized that the [base] would be sold once this ultimate extension lapsed.

[Seller's pleadings and counterclaim]

10. At the hearing for provisional measures on that day, the [seller]'s counsel, for its absent client, rejected the [buyer]'s petition for provisional measures, with expenses. [Seller's counsel] counterclaimed for pre-provisional and provisional reasons, with the following submissions:

      "I. [Seller] should be authorized to remove the [base] from the premises of [Company V] to [another location], where it will be stored until its sale or the complete payment of its price.

      "II. [Seller] should be authorized to sell the [base] without delay.

      "III. Subsidiary to I and II, the [buyer] should be compelled to supply guarantees at the amount of Sf 300,000 (three hundred thousand Swiss francs), in the form of an irrevocable bank guarantee, of first demand, of a first rate Swiss commercial bank, within ten days of the issue of the intervening order."

[Buyer's pleadings]

The [buyer] then completed its counterclaim submissions, on whether the transport of the [base], the rent for the storage and all other accessory expenses would be on the account of the [buyer] during the time of the proceedings; [buyer] rejected [seller]'s counterclaims.

11. The [buyer] never contested the bill sent by the [seller] on 28 July 1993, nor did [buyer] invoke any defect in the goods sold.

12. Following were some explanations by the parties and an estimate letter of 14 February 1994 from the transportation company to the [seller]'s counsel, that the fees to [seller] for storing the [base] would be close to Sf 300 per month and the cost of transport would be Sf 1,000. The [buyer] more or less added that it had already resold the machinery to a third party that had taken it without its base. The [seller] finally announced that, in case the base would not eventually be delivered to the [buyer], it offered to sell the base to the manufacturer of the machine, who was ready to re-purchase it for the price of Sf 80,000.

IN LAW

I. [Characterization of the transaction]

This conflict concerns the sale of movable goods, concluded in Switzerland, probably by mutual agreement, between a eller domiciled in Germany and a buyer domiciled in Wangen, Switzerland. The sale was concluded at the end of July directly between the parties, approximately three weeks after the auction organized by the [seller], such that it must be considered at this stage that we are dealing with a sale that is separate from the auction. Part of the goods sold was delivered; another part, the base of the machinery, is stored at Vevey. [Buyer], who counterclaims against the seller for an amount (Sf 197,730) superior to the sales price (Sf 34,222.50), is demanding the delivery of that base. Contesting all compensation, the seller maintains that it must be paid the total sales amount before delivering the base (article 82 CO).

II. [Provisional measures]

In reference to article 101(1), number 1, CPC, provisional measures can be ordered in a case, even before the beginning of any action, in the case of an emergency, to protect the possessor's rights (para. a), to protect the state of the object of litigation of any change (para. b) and to prevent danger of damages that are difficult to remedy (para. c). Such measures can thus be taken, in the cases provided for by the civil law (art. 101(2), ch. 2 CPC).

The provisional measures must be linked to the main procedure (see Vogel, Probleme des Vorsorglichen Rechtsschutzes, RSJ 76/1980, pp. 89 et seq., especially 93) that they represent. Even when the judge who orders them, rules under the perception of likelihood (ATF 97 I 481 c. 3a, JT 1912 I 494), it remains a fact that this likelihood is appreciated in connection to the substantive law (see Gloor, Vorsorgliche Massnahmen im Spannungsfeld von Bundesrecht und Kantonalem Zivilprozessrecht, thesis, Zurich 1982, pp. 21 and 72 et seq.). The provisional measures must thus be refused when the basis of the claim presents no possible chance of success (JT 1988 III 109 c. 3). From that moment on, no matter what the nature of the conclusions already made or to be made, the appellant [the buyer, in this case] must make seem likely the existence of the invoked law and that the material conditions of the action are well satisfied (Pelet, Réglementation fédérale des measures provisionnelles et procédure civile cantonale contentieuse [Federal Regulations on the Provisional Measures and Litigious Cantonal Procedures], thesis, Lausanne 1986, # 62, p. 48).

Moreover, where the likelihood holds different degrees, the substantive examination may prove to be more or less brief. The latter is a question left to the discretion of the judge, who must adopt its requirements to the circumstances, taking into account notably the urgency of the situation and the importance of the damages that the measure may cause to the respondent [the seller, in this case] (Pelet, op. cit., # 63, p. 50).

III. [Applicable law]

The [buyer] pleads the application of Swiss law, by reference to article 3(2), of the Hague Convention of 15 June 1955 on the Law Applicable to International Sales of Moveable Goods (RS 0.221.211.4; hereinafter: the Hague Convention); it notes that the sale has indeed taken place in Switzerland and that the buyer is Swiss.

For the [seller], the Hague Convention would not be applicable, because of a lack of ratification by Switzerland and Germany. One can question this reasoning in the sense that the Hague Convention is anyway applicable by reference to article 118 LDIP, at least concerning problems that are not settled by the UN Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 980 (R.B. 0.221.211.1; hereinafter: the Vienna Convention; CISG). [Seller] recommends the application of this Convention as the sale concluded by the parties was not made within an auction (see art. 2(b) Vienna Convention).

It is sufficient to note that the parties admit that the suit apparently will take place in the domicile State of one of them (in Switzerland or in Germany), that the competence of the judge there to make a ruling on the provisional measures results thus from article 103a CPC, respectively of article 10 LDIP, and that there results principles reminded in the above heading II that the judge of provisional measures can limit himself to an examination more or less detailed on its face. From this point of view, the parties admit both the conclusion and the validity of the sales contract that they agreed on. What separates them is essentially the consequence of the answer given to the question of knowing who is the owner of the [base]. However, it is neither the Hague Convention, which only details what is the applicable law (see its art. 5, ch. 3), nor the Vienna Convention (see its art. 4(b)) that can answer the question of the transfer of property, The obligation to transfer the property must be judged in accordance with the national law designated by the rules of conflict of laws, thus generally the lex rei sitae. This national law, thus designated, determines when and how the transfer of the property of the goods is carried out (Stoffel / Dessemontet / Chaudet / Xueref / Bilat / Lichsteiner, Les contrats de vente internationale de marchandises [Contracts for the International Sale of Goods], publication Cedidac 20, Lausanne 1991, pp. 39 and 67, especially p.190 note ad art. 4 CISG). Moreover, in accordance with article 100(1) LDIP, acquisition and loss of property are governed by the law of the place of the goods at the actual moment the acquisition or the loss occurs. The [base] being stored in Vevey, Swiss law is thus applicable in this case.

We will therefore apply Swiss law at the stage of provisional measures, by adding moreover that the Vienna Convention resolves, however, only the substantive issues.

IV. In support of this petition of provisional measures, appellant [buyer] holds substantially that it became the owner of the [base] by sale and that it has thus the right to transfer the [base], which remains stored in the premises of [Company V]. It is therefore just a minor detail, according to the appellant [buyer], that it did not pay the total amount of the sales price. [Company V], like the respondent [seller], announced its intention to sell the [base], there is an urgent need to rule on the impoundment of the [base].

In Swiss Law, possession is necessary for the transfer of personal property (art. 714(1) CC). The German law uses for the domiciled, the same system (Stoffel / Dessemontet / Chaudet / Xueref / Bilat / Lichsteiner, op. cit., p. 61 in fine).

The [buyer], who never actually had possession of the [base], is therefore not its owner. [Buyer] thus has no real right to the goods.

Even though, and the following is very unlikely, the parties had agreed on an auction, article 235(1) CO, which rules that the purchaser of personal property acquires the property at the time of purchase, would not be applicable in kind (Engel, Contracts According to Swiss Law, 1992, p. 63 note 3; Cavin, "The Sale. The Exchange. The Donation", in A Treaty on Private Swiss Law, Vol. VII, 1, 1978, p.158, letter c). Indeed, the general conditions in the auction created by the [seller] derogate from the principle of immediate transfer of property since they specify that the buyer does not acquire property of the goods sold but only the integral payment of the adjudged goods (see art. 3 in line of these conditions).

The appellant [buyer] does not have the advantage of title to property, however, it still has a personal right to the delivery of the [base] (art. 184(1) CO; art. 30 CISG) and could act in execution of the promised performance of the [seller], without damages (art. 101(2) CO; Cavin, op. cit., p. 45). Such an action cannot however be exercised since [buyer] does not want to settle the sales price agreed on and since the [seller] alleges the right to object non adempleti contractus, by refusing to deliver the [base] (art. 82 CO; arts. 58(1) and 85 CISG),

Be that as it may, it suffices to note that, at the provisional measures stage, the appellant [buyer] is exposed to damages that are difficult to compensate. Indeed, the [seller] has threatened to sell the [base] and has even taken steps in that direction during the hearing on provisional measures by noting that it had already found a purchaser. In case of alienation of the [base], the [buyer], who has already made two substantial payments of Sf 165,000 and Sf 120,500, will be deprived of the [base], which seems to be a loss of the entire value of the paid machine, for it is an essential part. Anyway, since [buyer] already resold these goods to a third party with the rest of the machine, it could be exposed to an action based on damages.

The risk of a case that may be difficult to remedy having been noted, there remains the need to comment on the respondent [seller]'s intent to alienate or export the [base] (art. 102(5) CPC). The respondent [seller] having announced its intention to dispose of these goods, it is to be feared that it does not respect the judge's decision. [Seller] thus imposes on itself the need to be threatened with being arrested and foreseeing fines under article 292 GP for non-submission to an authoritative decision.

V. The respondent [seller] makes it seem sufficiently likely, at the stage of the provisional measures, that it will have to incur a contractual charge of Sf 200,000 if the [base] is not evacuated from the premises of [Company V] by 11 March 1994 at the latest. In such case, it will be exposed to serious damages, especially since the amount of the contractual charge is disproportionate in comparison to the remainder of the sales price that the [buyer] still owes in order to obtain the delivery of the [base]. It is thus relevant to support the respondent [seller]'s submission, by authorizing [seller] to move the base from the premises of [Company V].

The [buyer] pleaded that it was ready to offer to the [seller] a bank guarantee of the equivalent amount of the sales price; [buyer] concludes that the [seller]'s rejection of this proposed guarantee proves that this [seller] is arbitrarily opposed to the delivery of the machine that as of now belongs to the [buyer] only. However, this assertion is based on an erroneous premise, as we have already discussed: the [buyer] is not the owner of the [base].

As for the cost of removal and storage during the hearing, they will be handled by the [seller]. On the one hand, they will be guaranteed by the assurance that the [buyer] will be restrained to supply (see consideration VII infra). On the other hand, the [seller] incorrectly relies on article 87 CISG, which permits the party [here: seller] appointed to the goods to preserve them only if the cost of this operation is not unreasonable. Indeed, the Vienna Convention, if applicable to this case, rules only on substantive issues. Therefore it does not exclude that a different solution may be given in the frame of provisional measures.

VI. The [seller] seeks authorization to sell the [base] immediately in accordance with article 88(1) CISG, which authorizes a seller to sell the goods if the buyer takes an unreasonably long time to pay the sales price or to take possession of the goods.

As we have seen, a different solution than the one anticipated by the Vienna Convention can be organized for provisional measures. Moreover, the authorization to sell the [base], which does not constitute a perishable product in the sense of article 93(1) CO or article 88(2) CISG, would come into conflict with the measures in reference to article 102 CPC. Anyway, considering the assurances to be provided by the appellant [buyer], the respondent [seller] will not be exposed to damages that are difficult to restore. Finally, the provisional measures must respect the proportionality principle, and the submission of the respondent [seller] goes, at least at this stage, against this principle.

That submission must consequently be rejected.

VII. The [seller] submitted finally that the [buyer] is obliged to provide assurances up to 300,000 Sf.

Pursuant to article 107(1) CPC, the [buyer] as appealing party must provide guarantees or deposits to assure the damages that may result from the provisional measures and the pre-provisional measures. The supply of guaranties is the rule and may be imposed as a matter of course.

In this case, the demanded measures in favor of the [buyer] are of a nature to lead to damages to the [seller], if it should receive any profit or gain from the substantive cause of action. Indeed, the latter [i.e., seller] will have, in the first instance, to have the [base] transported from [Company V] to another location, an operation for which the cost is estimated at Sf 1,000. Besides, it will have to bear, during the whole trial, the costs of storing at the other location estimated at about Sf 300 per month, plus additional insurance costs. Considering the foreseeable time duration of the trial, it is agreed to compel the [buyer] to give assurances, fixed ex aequo et bono, at Sf 20,000 plus Sf 1,000, as mentioned above. A time frame will be given to the appellant [buyer], to give these assurances to the Civil Court and deposit them at the Clerk's office, in cash or in the form of a bank guarantee subscribed by one of the three major Swiss banks, by the BCV or by the CFV. In case of non-performance by [buyer], the ruling on provisional measures will be void.

VIII. The solicited measures by the appellant [buyer] and by the respondent [seller] being allocated as essential, the costs of the provisional procedures can follow the fate of the cause of action (art. 109 (2) CPC).

FOR THESE REASONS,

The Magistrate, ruling in camera and by means of provisional measures:

I. Authorizes [seller] to move, on its own financial means, the [base] from the premises of [Company V], to another location where the goods will be stored until the substantive rights are known.

II. Under order I. above, prohibits [seller] to export or alienate the machinery [base] sold to [buyer] on 28 July 1993.

III. Accordingly, confirms the order of pre-provisional measures and adds a prohibition formulated under II. with the threat of arrest and fines provided by article 292 CP for refusal to submit to an authoritative decision.

IV. Subordinates the validity of the provisional measures to the depositing by [buyer] with the Clerk for guarantees of an amount of Sf 20,000 (twenty thousand Swiss francs), in cash or in the form of a delivered guarantee by one of the three main Swiss Banks, by the BCV or by the CFV.

V. Rejects submission II of the [seller's] counterclaim to the petition of provisional measures and pre-provisional measures, presented by [seller] at the hearing of 15 February 1994.

VI. States that the costs of the provisional procedure will be ruled at Sf 760 (seven hundred and sixty Swiss francs) for the appellant [buyer] and at Sf 500 (five hundred Swiss francs) for the respondent [seller].

VII. States that the costs will follow the fate of the substantive cause of action.

VIII. Rejects all other or less detailed submissions.

Signed by the Magistrate. Signed by the Clerk.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this presentation, the Plaintiff-Appellant of Switzerland is referred to as [buyer]; the Defendant-Respondent of Germany is referred to as [seller]. Amounts in Swiss currency [Swiss francs] are indicated as [Sf].

** Annabel Teiling is a graduate of the Pace University School of Law. . The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

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