Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Germany 25 August 1994 District Court Düsseldorf (Fashion goods case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940825g1.html]

Primary source(s) for case presentation: Case text


Case Table of Contents


Case identification

DATE OF DECISION: 19940825 (25 August 1994)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 31 O 27/92

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Fashion goods


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(b)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 18 ; 27 ; 35 ; 74 ; 77 ; 78 [Also cited: Articles 25 ; 38(1) ; 39(1) ; 43 ; 49 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (issues included): burden of proof];

18A3 [Criteria for acceptance: silence or inactivity insufficient];

27A [Dispatch of communication by appropriate means];

35D [Conformity of goods to contract: burden of proof of establishing non-conformity];

74A [Damages (general rules for measuring): loss suffered as consequence of breach (use of collection agent)];

77A [Obligation to take reasonable measures to mitigate damages];

78A [Interest on delay in receiving price or any other sum in arrears: rate of interest]

Descriptors: Conformity of goods ; Scope of Convention ; Burden of proof ; Commercial letters of confirmation ; Damages ; Collection costs ; Mitigation of loss ; Interest

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents

Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=150&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 726-727 No. 136

CITATIONS TO TEXT OF DECISION

Original language (German): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=150&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)]; Perales, Battle of the Forms and Burden of Proof, 6:2 Vindobona Journal (2002) 217-228, n. 22; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 182; 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]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 11 Art. 74 para. 20 Art. 77 para. 11

Go to Case Table of Contents

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

District Court (Landgericht) Düsseldorf

25 August 1994 [31 O 27/92]

Translation [*] by Thomas Arntz [**]

[...]

GROUNDS FOR THE DECISION

The Plaintiff [Seller]'s position is supported except for a part of the claimed interest and the claim for recovery of collection costs.

The [Seller]'s claim - which is decided in accordance with the CISG - is founded not because the Defendant [Buyer] (of Germany) was deprived of its ability to defend because of late notice of defects, but because [Buyer] did not prove the asserted existence of an agreement to take back the goods, nor did [Buyer] prove a fundamental breach of contract in the sense of Art. 25 CISG justifying an avoidance of the contract pursuant to Art. 49 CISG. Furthermore, it cannot be assumed that [Seller] (of Italy) was compensated by its credit insurer.

1. The CISG is applicable to the parties' agreement. The parties concluded their contract for the purchase and sale of fashion goods in the summer of 1990, at a point in time when the CISG had not yet entered into force in Germany. The CISG is nevertheless applicable pursuant to Art. 28 EGBGB [*] because the law of the State with the closest connection to the contract is the law of Italy, where the CISG had entered into force on 1 January 1988 (Art. 1(1)(b) CISG; Piltz, NJW [*] 1989, 615 (619); Schwenzer NJW 1990, 602 (603)).

2. The [Seller]'s claim for the purchase price is founded in accordance with the oral agreement validly concluded pursuant to Art. 53 CISG. [Buyer] does not have warranty claims; in particular, [Buyer] is not entitled to (partially) avoid the contract.

      a) The reason why [Buyer] has no warranty claims is not that [Buyer] did not give [Seller] notice of the alleged lack of conformity within a reasonable time after discovery of the asserted defects (wrong size) pursuant to Arts. 38(1), 39(1), 43(1) CISG. On the basis of the fax-message of 16 and 29 August 1990 presented by [Buyer] (Bl. 76 d.A), it has to be assumed that the [Buyer]'s notice was sent but did not reach [Seller] because of [Seller]'s annual closing; thus, because of reasons belonging to [Seller]'s sphere.

      b)  aa) However, [Buyer] did not prove its assertion that there was an agreement between the parties pursuant to which [Seller] was obliged to take back the small and medium-sized ready-made goods. While witnesses [...] and [...] confirmed the [Buyer]'s assertion, witnesses [...] and [...] testified to the opposite. This does not compel the view that there was such an agreement, rather that there was none.

Witness [...] declared to have spoken to the manager of [Seller] on 2 October 1990 at the request of [Buyer]. This witness testified that, after being told that the delivered items were of the wrong size and that [Buyer] could not sell them, [Seller] agreed to take them back, and that [Seller] only asked [Buyer] not to send the items to Italy, advising that it would pick them up "prossimamente" (soon). Witness [...] also declared that the manager of [Seller] said that [Seller] would pick the items up within a short period of time (the witness could not remember an exact date). On the other hand, witnesses [...] and [...] testified to having overheard a telephone conversation between an Italian speaking representative of [Buyer] and the manager of [Seller], during which the latter rejected taking the goods back.

Under these circumstances, it cannot be ascertained that the manager of [Seller] agreed to take the items back. It is not justified to attach more importance to the assertions of witnesses [...] and [...] than to the statements of the witnesses appointed by [Seller]. Moreover, there are objective circumstances that justify doubts as to the correctness of the [Buyer]'s assertions.

First, it is incomprehensible why [Buyer] asked a second Italian to help it transmit the complaint when it had already received (the order could not be clarified in the hearing of evidence) [Seller]'s acceptance of the partial avoidance of the contract. Moreover, [Seller] originally was ready to take the items back even though it knew of the allegedly wrong sizes. And it is undisputed that after its fax of 31 August 1990 (Anl. K 1, Bl. 31 d.A.) and its writing of 31 August 1990 (Anl. K 7, Bl. 56 f d.A.) [Buyer] wrote out a check for the entire purchase price (Anl. K 8, Bl. 58 d.A.). This is a check that was not cashed because it was stopped or because it was not covered (the reason was not stated).

The existing doubts as to the content of the telephone conversation of October 1990 are borne by [Buyer] who is under the obligation of furnishing proof. Insofar as [Buyer] requested the hearing of the witness Bottazzi under inclusion of an interpreter, the offer of evidence is to be followed. The witness Bottazzi was able to express himself accurately in German. As is shown by his last hearing (on 5 March 1994), he only had difficulties to understand the description of the sizes S, M and L.

            bb) Further, the validity of an agreement to take back the goods cannot be assumed on the basis that [Seller] did not object to the writing of [Buyer] of 26 November 1990 (Anl. K 5, Bl. 39 f d.A.) which included the asserted content of the telephone conversation of 2 October 1990.

[Buyer] wrongly considers the fax to be a letter of confirmation (kaufmännisches Bestätigungsschreiben). Already the prerequisite of immediacy is not fulfilled. A letter of confirmation is defined as a document sufficient to fix the conclusion of an agreement and its content only if it is send immediately after negotiations. This is not the case if there are seven weeks between the negotiation and the letter of confirmation. Furthermore the institute of a letter of confirmation is alien to the CISG (compare Piltz in: von Westphalen, Handbuch des Kaufvertragsrechts, UN-Kaufrecht paras. 37 and 38).

      c) [Buyer] is not entitled to (partially) avoid the contract pursuant to Art. 49 CISG. To do so, [Buyer] would have to prove a fundamental breach of contract (Art. 25 CISG) on the part of [Seller]. On the one hand, insofar as [Buyer] asserts that the items do not match the sizes of the presented samples (Art. 35(2)(c) CISG), this was confirmed by witness Reck in her written testimony of 16 November 1992 (Bl. 88 f d.A.). On the other hand, witness Tagiavini stated that [Buyer] was shown fashion goods sized "S" and that the other sizes were aligned and produced for [Buyer] on the basis of the goods presented. Whether the designs sized "S" and "M" were in fact smaller than size 36/37 of the German size index (bundesdeutsche Größenpalette) cannot be determined by at this time retaining an expert witness because according to the statement of [Buyer] the items are no longer available.

3. [Seller] did not lose its claim for payment of the purchase price because it was compensated by its credit insurer. The assertion of [Buyer] concerning this matter is obviously notional. The fax message (Anl. K 4, Bl. 37 d.A.) only speaks of the fact that there was coverage, not that the insurer had actually compensated the damages. The kind of argument between the parties does typically not fall within the scope of a credit insurance. Moreover, [Buyer] did not supply evidence for its assertion.

4.  a) The [Seller]'s claim for interest - as far as admitted by the court - is founded pursuant to Art. 78 CISG and Art. 1284(1) Cc [*]. Art. 78 CISG is silent as to the amount of interest. Thus, the amount has to be determined in accordance with Italian law (compare Art. 28(2) EGBGB [*]). Pursuant to Art. 1284(1) Cc (old version) the interest rate is 5 %. According to the new version of Art. 1284(1) Cc, which has been in force since 16 December 1990, the interest rate is 10 %. This new version is also applicable to liabilities concerning which interest has to be paid since before 16 December 1990.

[Seller] did not provide proof for the additional interest penalty claimed.

      b) [Seller] is not entitled to recover collection costs. By charging a dept collecting agency [Seller] violated its duty to mitigate loss pursuant to Art. 77 CISG.

In principle, damages to be compensated according to Art. 74 CISG include legal expenses. But the assignment of a dept collecting agency is only adequate if the agency has means of legal pursuit exceeding those of the creditor. However, this is usually not the case in transnational legal relations and it is not the case here. Furthermore, [Seller] knew that [Buyer] had raised substantive objections. Thus it could not be expected that [Buyer] would pay upon a simple reminder from the debt collecting agency.

[...]


FOOTNOTES

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

Translator's note on abbreviations: Cc = Codice civile [Italian Civil Code]; EGBGB Einführungsgesetzbuch zum Bürgerlliches Gesetzbuche = [German Code on Private International Law]; NJW = Neue Juristische Wochenschrift [German law journal].

** Thomas Arntz is a law student at the University of Cologne. During 2003-2004 he spent a year in Clermont-Ferrand, France, as an Erasmus student. In 2004/2005 he participated in the Twelfth Willem C. Vis. Moot.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated July 10, 2006
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography