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CISG CASE PRESENTATION

Germany 26 August 1994 Appellate Court Köln (Market study case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940826g1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19940826 (26 August 1994)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 19 U 282/93

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

CASE HISTORY: 1st instance LG Köln 11 November 1993 [reversed]

SELLER'S COUNTRY: Switzerland (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Market study


Case abstract

GERMANY: OLG Köln 26 August 1994

Case Law on UNCITRAL texts (CLOUT), abstract no. 122

Reproduced with permission from UNCITRAL

The [seller], a Swiss market research institute, had elaborated and delivered a market analysis, which had been ordered by the [buyer], a German company. The [buyer] refused to pay the price alleging that the report did not comply with the conditions agreed upon by the parties.

The court held that the CISG was not applicable, since the underlying contract was neither a contract for the sale of goods (article 1(1) CISG) nor a contract for the production of goods (article 3(1) CISG). Noting that the sale of goods is characterized by the transfer of property in a object, the court found that, although a report is fixed on a piece of paper, the main concern of the parties is not the handing over of the paper but the transfer of the right to use the ideas written down on such paper. Therefore, the court held that the agreement to prepare a market analysis is not a sale of goods within the meaning of articles 1 or 3 CISG.

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Classification of issues present

APPLICATION OF CISG: No [Article 3(1)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1(1) ; 3(1) [Also relevant: Article 6 ]

Classification of issues using UNCITRAL classification code numbers:

1B [Basic rules of applicability: definition of "goods"];

3A ; 3B [Goods to be manufactured; Services preponderant part of obligation]

Descriptors: Scope of Convention ; Services ; Computer software

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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=66&step=Abstract>

German: OLG Report Köln (OLGR) 1994, 314

Italian: Diritto del Commercio Internazionale 1995) 458-459 No. 80

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 267-268

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/132.htm>; OLG-Rp Köln 1994, 314; Recht der Internationalen Wirtschaft (RIW) 1994, 970-972; Wirtschaftsrechtliche Beratung (WiB) 1995, 35-36; Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre (IPRspr) 1994 No. 37 [85]; Neue Juristische Wochenschrift - Rechtsprechungs-Report (NJW-RR) 1995, 245-248; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=66&step=FullText>

Translation (English): Text presented below

Translation (Portuguese): CISG Brazil database <http://www.cisg-brasil.net/downloads/casos/market_study_case.pdf>

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 59 [Art. 3]; Bernstein/Lookofsky, Understanding the CISG in Europe (1997) 14 n.30; Curran, 15 Journal of Law and Commerce (1995) 175-199 [180-181] [English summary of comments by Witz cited below]; Ferrari, 15 Journal of Law and Commerce (1995) 64-67 [both commentaries discuss definition of "goods", citing this case and other cases]; Ferrari, International Legal Forum (4/1998) 138-255 [154 n.147 (internationality of contract), 188 n.429, 192 n.471 (annalysis of Art. 3(1)/3(2)), 194 n.493, 195 n.506, 196 n.508 (definition of "goods")]; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) [what constitutes a sales contract and what issues are not covered 77-79 (this case at 79)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-5 n. 46, 47 & 49; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 1 paras. 21, 21a Art. 3 para. 6a; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 27; Sarah Green & Djakhongir Saidov, Software as Goods, Journal of Business Law (March 2007) n.69

Finnish: Huber/Sundström, Defensor Legis (1997) 747 [749 n.7]

French: Witz, Les premières applications jurisprudentielles du droit uniforme del la vente internationale (L.G.D.J., Paris 1995) 32-34

German: Gaus, Wirtschaftsrechtliche Beratung (WiB) 1995, 36-37 ; Schlechtriem, Internationales UN-Kaufrecht (1996) 18 n.31

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Case text (English translation)

Queen Mary Case Translation Programme

Court of Appeals (Oberlandesgericht) Köln
26 August 1994 [18 U 282/93]

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

Translation edited by Camilla Baasch Andersen [***]

[...]

REASONING OF THE COURT

Contrary to the opinion of the Court of First Instance and the legal views of the Claimant, the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG), which entered into force in Germany on 1 January 1991, does not apply to the present case.

It is true that the contract at hand is an international contract under Art. 1(1) CISG, as it was concluded between parties whose places of business are in different Contracting States. This is because the scientific study was commissioned at the Claimant's headquarters in B. and not at the Claimant's branch office in Germany. However, the CISG is not applicable as the contractual agreement between the parties is neither a contract for the sale of goods under Art. 1(1) CISG, nor can it be considered a sales contract [governed by the Convention] by virtue of Art. 3(1) CISG.

According to Art. 3(1) CISG, the Convention applies to contracts for the supply of goods to be manufactured or produced, that is, to contracts for work and materials (cf. Herber, in: v.Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, 1990. Art. 3 n. 3; Reinhart, UN-Kaufrecht, Heidelberg 1991, Art. 3 n. 1; Karollus, UN Kaufrecht, Vienna 1991, p. 22 et seq.). However, the Claimant's obligation to conduct a scientific study regarding a specific segment of the German express-services market is not a contract for work and materials in the meaning of Art. 3(1) CISG. The Claimant was not obliged to deliver a "Ware" [Translator's note: "Ware" is the German term for "good"]. Only movable things that are typically the object of a commercial sale can be considered a "Ware" (cf. Herber, in: v.Caemmerer/Schlechtriem, op. cit., Art. 1 n. 2 et seq.). This interpretation corresponds to, and is confirmed by, the English text of the Convention - "supply of goods" - and the French wording - "fourniture de merchandises". While the scientific study in the case at hand may find a final embodiment in the form of a written report, it is not a typical object of a commercial sale - at least not under the decisive prevalent view in commercial circles. The purpose of a commercial sale is first and foremost the transfer of property and possession of the good sold. In the present case, however, the right to utilize an intellectual product of work is in the foreground; the work is embodied in a written form solely to make it intellectually graspable, and the form of the embodiment is of secondary importance to the commissioner of the study.

[...]

The Court does not follow the Claimant's argument that the sale of software is accepted as a sale of goods under the CISG (cf. Herber, in v.Caemmerer/Schlechtriem, op. cit., Art. 1 n. 21; Herber/Czerwenka, Internationales Kaufrecht, München 1991, p. 148), and that therefore the scientific study owed by the Claimant in the present case also constitutes "goods" in the meaning of the Convention.

At the most, it is standard software that can be viewed as a movable object and therefore be considered to be "goods" in the terms of the Convention (cf. BGH [*] MDR [*] 1991, 950 et. seq. = CR [*] 1993, 681 et. seq.; see the comment by Jaeger, Die Chronik der Rechtsentwicklung des Computerrechts [Chronic of the development of computer law], in : Rheinische Justiz, Geschichte und Gegenwart: 175 Jahre Oberlandesgericht Köln, p. 97, 100, according to whom the BGH has not made a final determination on that matter and has not considered standard software movable goods, but solely applied the relevant provisions by analogy). Software can certainly not be viewed as tangible goods where the contract concerns the development of individual software; such a contract is a contract for services (cf. OLG [*] Köln, VersR [*] 1993, 452 et seq. = MDR [*] 1992, 1126). In this light, the Claimant's comparison with computer software confirms the Court's opinion that the law for service contracts applies to the production of the scientific study in the case at hand.


FOOTNOTES

* All translations should be verified by cross-checking against the original text.

Translator's note on abbreviations: BGH = Bundesgerichtshof [Federal Court of Justice, the highest German Court in civil and criminal matters]; CR = Computer und Recht [German law journal]; MDR = Monatszeitschrift des deutschen Rechts [German law journal].

** 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.

*** Camilla Baasch Andersen is a Lecturer in International Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London, and a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She is currently finishing her PhD thesis on uniformity of the CISG at the University of Copenhagen.

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