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CISG CASE PRESENTATION

Austria 1 July 1994 Appellate Court Innsbruck (Garden flowers case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940701a3.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19940701 (1 July 1994)

JURISDICTION: Austria

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 4 R 161/94

CASE NAME: Dansk Blumsterexport A/s v. Frick Blumenhandel

CASE HISTORY: 1st instance LG Feldkirch 29 March 1994 [affirmed]

SELLER'S COUNTRY: Denmark (plaintiff)

BUYER'S COUNTRY: Austria (defendant)

GOODS INVOLVED: Garden flowers (daisies)


Case abstract

AUSTRIA: Court of Appeal Innsbruck 1 July 1994

Case law on UNCITRAL texts (CLOUT) abstract no. 107

Reproduced with permission from UNCITRAL

The plaintiff, a Danish exporter of flowers, sold several shipments of garden flowers to the Austrian defendant, who refused to pay the price for some of them arguing that the seller had breached a guarantee or committed a fundamental breach of the contract since the flowers did not bloom through the entire summer.

The court of first instance dismissed the buyer's arguments on the ground that it had failed to prove that the seller had guaranteed that the flowers would bloom through the entire summer, or that the seller had committed a fundamental breach of contract because the flowers were not conforming with contract specifications (Articles 36 and 49(1)(a) CISG). The court further held that, even if the buyer had been able to establish lack of conformity of the goods, it would have lost its right to avoid the contract, since it had failed to give the seller notice within a reasonable period of time after discovery of the defect (Article 39(1) CISG; which, the court found, was similar to Article 377 of the Austrian Commercial Code). The court held that two months after delivery of the goods was a reasonable period of time within which the buyer should have, and in fact had, discovered the lack of conformity of the goods.

The Court of Appeal confirmed the decision of the court of first instance on the ground that the buyer had failed to establish that the seller had breached a guarantee or committed a fundamental breach of contract in supplying flowers non-conforming with contract specifications (Articles 25, 35 and 49(1)(a) CISG).

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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 ; 35 ; 36(1) ; 39 [Also cited: Articles 25 ; 38 ; 49 ] [Also perhaps relevant: Articles 7 ; 46 ]

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (issues covered): burden of proof (derived from general principles)];

35A ; 35B [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law];

36A ; 36B [Time for assessing conformity of goods: conformity determined as of time when risk passes to buyer; Lack of conformity occurring after passage of risk];

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Conformity of goods ; Scope of Convention ; General principles ; Burden of proof ; Lack of conformity notice, timeliness

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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=132&step=Abstract>

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER) / Revue suisse de droit international et de droit européen 1996, 51 [cited as 1 June 1994]

Italian: Diritto del Commercio Internazionale (1996) 630-631 No. 102

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 265-266

CITATIONS TO TEXT OF DECISION

Original language (German): CISG online.ch website <http://www.cisg-online.ch./cisg/urteile/107.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=132&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-225 [194 n.485 (definition of "goods")]; Schwenzer, in: Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (Oxford 1998) [Art. 36 (burden of proof)] 294 n. 37; Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 235-236 n.201 [fundamental breach: quality of the goods]; 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; Saidov, Damages under the CISG (December 2001) n.352; Perales, Battle of the Forms and Burden of Proof, 6:2 Vindobona Journal (2002) 217-228, n. 22; 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); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 164, 173; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 4 para. 22 Art. 35 para. 49 Art. 36 para. 13; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 157; Spaic, Analysis of Fundamental Breach under the CISG (December 2006) n.263

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Innsbruck
1 July 1994 [4 R 161/94]

Translation by [*] Ruth M. Janal [**]

Translation edited by Todd Fox [**]

REASONS FOR THE DECISION

The [seller] delivered to the [buyer] several plants, among them some of the genus Oesteospermum ecklonis (African daisy). The first delivery was effected on 2 May 1991 with invoice no. 43567, issued on 24 April 1991. Of the invoiced amount, DM [Deutsche Mark] 4,334.40 relate to the African daisies; the proportionate freight costs and custom duties amount to DM 1,520,-. A second delivery was made on 17 May 1991 with invoice no. 43717, in which an amount of DM 7,312.32 was made out for the African daisies; the proportionate freight costs and custom duties come to DM 2,612.-.

Both invoices were fully paid by the [buyer].

Following a further order by the [buyer], another delivery was made by the [seller] on 30 May 1991. The entire invoice was over DM 16,674.20; an amount of DM 4,718.20 relates to African daisies. The proportionate freight costs and custom duties for the African daisies amount to DM 1,430.-.

This invoiced amount remains outstanding.

The following findings of the Court of First Instance are not contested in the appellate proceedings:

[Seller's submissions]

The [seller] requests that the [buyer] be ordered to pay it aS [Austrian Shillings] 107,062.12 plus 12% interest on aS 23,269.77 from 30 May 1991 to 31 May 1991, 12% interest on aS 20,054.27 from 1 June 1991 to 27 June 1991, 12% interest on aS 137,607.38 from 28 June to 30 June 1991, 12% interest on aS 187,825.44 from 1 July to 19 August 1991, 12% interest on aS 191,000.19 from 20 August to 2 December 1991, and 12% interest on aS 107,062.19 from 3 December 1991 to 25 May 1992, at a yearly settlement of interest, plus 12% interest from the time the [buyer] was served with the statement of claim, plus 20% turnover tax on interest and compound interest. The [seller] submits that the delivered goods did not possess a lack of conformity. The problems encountered with the African daisies possibly resulted from a storage or treatment error made by the [buyer]. A damage during transport had to be ruled out. Moreover, the [seller] had not given any guarantees. The [buyer] had notified the [seller] of the alleged lack of conformity of the goods only after [buyer] had been issued a reminder of payment. This was too late.

[Buyer's submissions]

The [buyer] requests that the claim be dismissed. [Buyer] submits that the delivered African daisies were not fit for their purpose, because they did not bloom through the entire summer - a feature which was usually taken for granted and which was furthermore explicitly guaranteed by the [seller]. Already before the [buyer]'s vacation in the first three weeks of July 1991, a number of the [buyer]'s customers had made complaints; initially, the [buyer] had not taken the matter seriously and had assumed that its customers had treated the plants incorrectly. Then, after the [buyer]'s vacation, it received an entire avalanche of angry complaints. [Buyer] furthermore realized that the African daisies which stemmed from the last delivery and had been planted by [buyer] had faded. [Buyer] then immediately notified the [seller] of the lack of conformity via telephone (the non-conformity could not have been discovered earlier). Therefore, [buyer] submits that the notice specifying the defect was given within reasonable time. [Buyer] and [seller] had agreed that the [buyer] would inform the [seller] of its claims resulting from the non-conformity. The [buyer] did so with letter of 3 October 1991. From the open invoice no. 43972, a partial amount of DM 6,148.20 related to the African daisies and consequently did not have to be paid. The remaining amount of DM 10,526.- did not have to be paid because the [buyer] was entitled to claims amounting to DM 15,778.72 (= aS 111,239.97) for the non-conforming deliveries which had been invoiced with the invoices no. 43567 and 43717.

[DECISION OF THE COURT OF FIRST INSTANCE]

The Court of First Instance held in the appealed decision that the [seller]'s claim of aS 107,062.19 was justified, whereas the [buyer]'s counterclaims were unfounded. The Court therefore ordered the [buyer] to pay the [seller] aS 107,062.19 plus 5% interest on aS 23,269.77 from 30 May to 31 May 1991, 5% interest on aS 20,054.27 from 1 June to 27 June 1991, 5% interest on aS 137,607.38 from 28 June to 30 June 1991, 5% interest on aS 187,825.44 from 1 July to 19 August 1991, 5% interest of aS 191,000.19 from 20 August to 2 December 1991, 5% interest on aS 107,062.19 from 3 December 1991 to 25 May 1992, plus 5% interest from the time the [buyer] was served with the statement of claim, plus 20% turnover tax on interest and compound interest. The further request for interest was denied.

The Court of First Instance further established the following facts:

The [seller] is a wholesaler of plants, the [buyer] is a plant retailer. In spring 1991, the [buyer] visited Denmark with the plan of ordering plants from the [seller]. Together with Andreas Schwabe, one of the [seller]'s employees, [buyer] went to the market-garden of Anders Jonsson, who supplies the [seller] with plants of the genus Osteospermum ecklonis (among others). The [buyer] inspected these plants, while Schwabe explained to [seller] that it was an open-beds plant, which needed a sunny place. Schwabe did not give the [buyer] any further instructions for the storage and treatment of the plant and did not guarantee the [buyer] that the flowers would bloom through the entire summer.

The Oesteospermum ecklonis (also called African daisy) has its place of origin in South Africa. There, the plant takes a rest throughout the winter, begins to bloom in spring and then blooms through the entire summer. The winter rest is important for the plant. The pre-cultivation is decisive for the plant's development. If the temperature is held too high during the pre-cultivation, the plant will bloom earlier, but then stops blooming in the summer. If the natural conditions of South Africa are created, the flower starts blooming early on and blooms through the entire summer. The plant needs a sunny place; the ground must be nutritious and permeable so that the wetness does not build up. Therefore, one of the reasons that the plant does not bloom can be a wrong location or too little or too much sun.

The term "bed-plant" refers to a plant which blooms through the entire summer up to the first occurrence of frost. If it does not do so, it is missing a characteristic quality. An expert needs a period of overall two months to determine that a flower will not bloom again. The plant blooms for the first month, then it needs a certain period of time to get used to the new conditions. At the earliest, one-month after the fading of the first flowers, the expert will be able to ascertain that no new buds will sprout.

The [buyer] sold the African daisies delivered by the [seller] and promised its customers that the plant would bloom through the entire summer.

Already before 6/8 July 1991, the first customers complained to the [buyer] that the plant did not bloom beautifully and that it had fewer blossoms. The [buyer] did not take these complaints seriously. [Buyer] told its customers that they should water and fertilize the plants better. It cannot be ascertained to which delivery these plants belonged.

On 6 or 8 July 1991, the [buyer] went on vacation for three weeks. During [buyer]'s vacation, further customers complained that the buds of the African daisies fell off and that subsequently the plants longer bloomed, but only proliferated in green. It cannot be determined how many customers complained.

After the [buyer]'s return, [buyer] established in its own garden that the African daisies set by [buyer] no longer bloomed after the first blossoms had fallen off. On that very day, [buyer] called Andreas Schwabe and told [seller] that customers had complained about the African daisies; further, that the plant grew to be rather large and did not develop new buds. It also did not bloom through the entire summer. The [buyer] was pretty angry and declared that it would reserve action for the time being and would not pay the open invoice. Schwabe did not accept the complaint.

Overall, the [buyer] bought 6,436 African daisies from the [seller]. It cannot be determined how many of these plants did not bloom after their first blossom and only continued to proliferate in green. The cause can also not be established. It cannot be ascertained that the plants delivered by the [seller] were pre-cultivated in a false manner and that this was the cause for their failure to bloom. A damage during transport can be ruled out.

With three letters of 3 October 1991, each with the same wording, the [buyer] complained to the [seller] that the plants did not bloom after the first blossom, that [buyer] could not save [itself] from complaints by its customers and that up until now 129 customers had claimed their damages. In these three writings, the [buyer] calculated its damages regarding the respective invoices at DM 6,148.20, DM 9,924.32 and DM 5,854.40.

It cannot be determined how many customers the [buyer] did in fact grant restitution.

The [seller] does not take permanent bank credit.

In legal terms, the Court of First Instance held that the legal relations between the parties had to be assessed according the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). The [buyer], who bore the burden of proof in that respect, had not established that the [seller] had guaranteed a continuous blooming of the plant through the entire summer. Therefore, only a liability for the non-conformity of the delivered plants under Art. 36 CISG could be considered. This required that a lack of conformity existed at the time the risk passed to the [buyer] (even if the defect showed only later on). Again, this liability was excluded by the Court of First Instance because the [buyer] did not present any proof - as [buyer] would have been obliged to - that the flowers were non-conforming at the time of delivery. Even under the assumption that a lack of conformity of the African daisies had been proven, the notice specifying the lack of conformity would have been issued too late by the standards of Art. 38 et seq. CISG. According to these provisions, the buyer loses the right to rely on a lack of conformity of the goods if it does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after it has discovered it or ought to have discovered it. According to the Court of First Instance, this stipulation corresponds to the obligation to give notice under 377 HGB [*]. If one allowed the [buyer] a period of two months for the discovery of the non-conformity, the defect should have been discovered in the beginning of July at the latest. Since the [buyer] notified the [seller] of the lack of conformity only after the return from its vacation at the end of July, [buyer] was not entitled to a remedy of the defect or to a claim for damages. Furthermore, the [buyer] did not declare the avoidance of contract regarding the invoices no. 43567 and 43717 until its reply to the [seller]'s statement of claim. With the letters of 3 October 1991, the [buyer] had solely claimed its damages. Under Art. 49 CISG a buyer loses its right to declare the contract avoided unless it does so within a reasonable period of time.

The Court of First Instance therefore only dismissed the claim for interest insofar as it exceeded the interest rate of 5%.

The [buyer]'s timely appeal contests this decision to the extent that it grants the [seller]'s claims. The [buyer] queries the decision for reasons of evidence and law and requests the Court of Appeals to reverse the decision and dismiss the claim in its entirety; in the alternative, to repeal and remand the decision.

The [seller] in its timely reply to the [buyer]'s appeal requests the Court not to grant the appeal.

[Decision of the Court of Appeals]

The appeal is not justified.

I. Regarding the evidence

      1.1. The [buyer's] contestation of the evidence is directed against the finding of the Court of First Instance that Andreas Schwabe did not guarantee the [buyer] that the flowers would bloom through the entire summer. The [buyer] desires the finding that Schwabe did issue it such a guarantee. According to the [buyer], this is proven by the [buyer]'s and [buyer]'s wife's testimony and, indirectly, the confirmation of the witness Helmut Lerchner. [Buyer] submits that the only contradicting testimony, given by the witness Schwabe, was unsure; Schwabe had solely stated that he believed not to have given a guarantee.

It is correct that the [buyer] and its wife Maria Frick testified that Andreas Schwabe guaranteed them that the flower bloomed through the entire summer. The witness Helmut Lerchner confirmed that the [buyer] told [seller] that [buyer] had been assured this quality.

The witness Schwabe on the other hand initially clearly testified that at no point in time did he guarantee the [buyer] that the plant would bloom the entire summer; respectively, that it was incorrect that he assured the [buyer] that the plants would bloom until the fall, continue to produce new buds and constantly bloom. Insofar as Schwabe stated some sentences later that neither he nor the gardeners (whom he had visited with the [buyer]) had said something to that effect, Schwabe's uncertainty clearly seems to refer to what the gardeners said (otherwise the confidence of the two earlier statements cited would not be understandable).

The witness Hubert Ludescher, a gardener who bought the African daisies from the [buyer], stated that it was a bed-plant and that he assumed that it would bloom through the entire summer. It is obvious that the witness did not ask the [buyer], and the [buyer] did not assure the witness that the bed-plant would bloom through the entire summer; apparently because - as the expert report clearly indicates - this is taken for granted between experts. For this reason, it seems rather unlikely that an explicit guarantee should have been given between Schwabe and the [buyer] (during a conversation among experts), that the bed-plant bloomed through the entire summer. This thought speaks for the credibility of the witness Schwabe, who denies having given a guarantee. Therefore, the Court would under no circumstances be able to reach more than a negative finding in that matter; a positive finding, as desired by the appeal, has to be ruled out for the above reasons. A negative finding regarding the guarantee of this quality would not be of benefit to the [buyer], because it is without doubt that [buyer] bears the burden of proof for the "fundamental breach of contract" in the meaning of the applicable CISG, BGBl. [*] 1988/96. (This corresponds to the basic rule that each party needs to prove the prerequisites of those provisions that benefit its standing of law. If the [buyer] contends that it may declare the contract avoided under Art. 49 CISG, it is bound to prove the facts that entitle it to this right; a factual prerequisite in this context is that the quality of the goods delivered by the [seller] did not conform to the contract - cf. Art. 35 CISG). Moreover, the question whether an additional assurance of a certain quality has been given is irrelevant in the present case, because the characteristics allegedly assured by Schwabe is in any case a quality which is ordinarily presupposed (in the meaning of Art. 35(2)(a) CISG). Schwabe's declaration - as alleged by the [buyer] - could under no circumstances be interpreted as a real promissory guarantee which goes beyond an explicit assurance of quality (for the differences cf. Reischauer in Rummel 2, 922, 923 ABGB [*] n. 5).

      1.2 The contestation of evidence is further directed against the finding of the Court of First Instance that the cause for the failure to bloom of an indeterminable amount of the African daisies delivered by the [seller] could not be established. The [buyer] desires the finding that all of the African daisies delivered by the [seller] did not possess the quality of blooming through the summer and that the reason for this missing quality was the incorrect pre-cultivation by the Danish gardeners that supplied to the [seller]. The [buyer] reasons that - according to its own declaration - 300 to 400 customers made complaints, that each of those had acquired roughly 5 to 15 plants, and that this led to 3,500 non-conforming plants under averaged calculations. If one considered that by far not every customer complained, the conclusion could be drawn that all of the plants possessed the defect. This was further substantiated by the fact that the expert witnesses Hubert and Stefan Ludescher and the [buyer] himself had to realize that the plants bloomed only once; an incorrect treatment of the plants by these persons could probably be ruled out. A damage during transport had to be excluded. The expert witness Siedler had explained that the pre-cultivation of the plant with not too high a temperature was decisive. The witness Schwabe, on the other hand, had testified that it was a problem of Danish market-gardens that the plants were sprouting too fast in the warm hothouses.

Regarding this submission, the following can be said:

Firstly, the Court agrees with the assessment of the Court of First Instance that the [buyer]'s statements regarding the complaints it received are not credible, because they are obviously wildly exaggerated. The Court of First Instance's explanation of its considerations regarding the evidence in p. 11 to 13 of the decision is accurate ( 500a ZPO [*]). It can be added that in its three letters of 3 October 1991 the [buyer] spoke of 129 cases in which it made restitution. Since it is highly unlikely that a compensation of damages was made at a later point in time (the letters were written at the end of the blooming period), and since - at least according to the [buyer]'s submissions - it cannot be assumed that the [buyer] reacted with a compensation only to a third of the complaints, the [buyer]'s pleadings regarding the amount of the complaints received must be considered as wildly exaggerated for this reason alone.

The appeal contends that the Court of First Instance should have reached the more precise finding (following the [buyer]'s declaration) that before the [buyer]'s vacation, only two or three customers had issued complaints regarding the African daisies. The Court of First Instance's argument gains importance that if this was the case, the plants of the first delivery must have been predominantly without a non-conformity, as the buyers of plants from this first delivery should have already realized the "laziness to bloom" (testimony of witness Hubert Ludescher) before the [buyer] went on vacation.

Finally, the argument of the Court of First Instance is justified that if an incorrect pre-cultivation had occurred, the non-conformity should have shown itself with all of the plants. Instead, there are the above reasons to conclude that the non-conformity did not affect a large part of the African daisies. This is an important indication that the defect had other causes. The findings of the Court of First Instance, which follow the explanation of the expert witness Fiedler, certainly leave room for other causes for which the [seller] is not responsible. Not even the [buyer]'s argument that an incorrect treatment of the plants could be excluded as the cause for the laziness to bloom in the instance of Hubert and Stefan Ludescher and the [buyer] himself is entirely conclusive: The testimony of the witness Lerchner, who is a gardener himself, reveals that the treatment of the plant is evidently difficult and needs experience; that Lerchner himself experienced difficulties with this plant; that he, however - apparently after it had become more experienced - managed to make the plants bloom at least from June to August. Therefore, the possibility can not be excluded that Hubert and Stefan Ludescher and the [buyer] itself did not give the plants an optimal treatment due to insufficient experience.

In conclusion, it can be conceded to the appeal that there are some reasons to conclude that the laziness to bloom of the African daisies delivered by the [seller] was caused by the incorrect pre-cultivation through the [seller]'s suppliers. However, there are also good reasons that speak against such an assumption, so that the Court of Appeals shares the opinion of the Court of First Instance that the cause for the non-conformity can no longer be established.

The complaint regarding the evidence is therefore unjustified.

2. Regarding the legal assessment

The legal assessment reached by the Court of First Instance cannot be queried on the basis of these factual findings. The appeal argues that it is certain that a part of the flowers did not bloom, and that this means that a fundamental breach of contract in the meaning of Art. 25 and Art. 35 CISG was committed because qualities of the goods, which are ordinarily presupposed, were missing. The [buyer] pleads that it does not bear the burden of proof for the cause of the lack of conformity, rather that the [seller] needs to prove the cause of the defect.

The [buyer] overlooks that a defect (in the words of the Convention: the lack of conformity of the goods - cf. Wilhelm, UN-Kaufrecht, p. 16) is not identical with the only single-blooming of the African daisies. If the single-blooming was caused by a wrong treatment of the plants on the part of the [buyer] and its customers (which cannot be excluded according to the factual findings), it does not constitute a lack of conformity of the goods. As has been explained above, the [buyer] bears the burden of proof for the lack of conformity of the goods as a prerequisite for the avoidance of contract desired by it under Art. 49(1)(a) CISG. Since [buyer] was unable to present such proof according to the findings of the Court of First Instance, the [buyer] is unable to effectively counter the [seller]'s claim for payment of the purchase price (which is undisputed with respect to the amount claimed).

It is therefore just as irrelevant whether the [buyer] declared the "cancellation" in a sufficiently clear manner (cf. Wilhelm, op. cit., p. 22; Loewe, Internationales Kaufrecht, p. 72; Niggemann in Hoyer-Posch, Das einheitliche Wiener Kaufrecht, p. 103), as it is to determine whether the notice specifying the lack of conformity was given in due time and whether an application of Art. 44 CISG is possible.

The appeal is therefore denied, the appealed decision is affirmed.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellee of Denmark is referred to as [seller]; the Defendant-Appellant of Austria is referred to as [buyer]. Amounts in German currency [Deutsche Mark] are indicated as [DM]; amounts in Austrian currency [Austrian Shillings] are indicated as [aS].

Translator's note on other abbreviations: ABGB = Algemeines Bürgerliches Gesetzbuch [Austrian Civil Code]; BGBl = Bundesgesetzblatt [Austrian Federal Law Gazette] HGB = Handelsgesetzbuch [Austrian Commercial Code]; ZPO = Zivilprozessordnung [Austrian Code of Civil Procedure].

** Ruth M. Janal, LL.M. (UNSW), a PhD candidate at Albert-Ludwigs-Universität Freiburg, has been an active participant in the CISG online website of the University of Freiburg. Todd Fox is an Associate of the Institute of International Commercial Law of the Pace University School of Law. He received his LL.M. summa cum laude from the University of Freiburg, Germany.

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