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

CISG CASE PRESENTATION

Germany 9 November 1994 District Court Oldenburg (Lorry platforms case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/941109g1.html]

Primary source(s) for case presentation: Case text


Case Table of Contents


Case identification

DATE OF DECISION: 19941109 (9 November 1994)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 12 O 674/93

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: Lorry platforms and belts


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39(1) ; 46(3) ; 48 ; 49 ; 53 ; 78 [Also cited: Articles 2 ; 3(1) ; 44 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

38A [Buyer's obligation to examine goods];

39A ; 39C [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Other issues concerning notification: failed repair constitutes another non-performance requiring another notification];

45A [Buyer's remedies for breach by seller: right to damages available];

46C [Buyer's right to require repair of non-confronting goods];

48A [Cure by seller after date for delivery: seller's right to remedy any failure to perform];

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

Descriptors: Conformity of goods ; Repair ; Cure ; Lack of conformity notice, timeliness ; 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=102&step=Abstract>

Italian: Diritto del Commercio Internazionale (1995), 461 No. 83

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/114.htm>; Neue Juristische Wochenschrift - Rechtsprechungs-Report (NJW-RR) 1995, 438; Recht der Internationalen Wirtschaft (RIW) 1996, 65-66; Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts im Jahre (IPRspr) (1994) No. 43 [96]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=102&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [244 n.998 (reference to Art. 44), 253 n.1079 (interest issues)]; 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]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 38 para. 9 Art. 45 para. 26 Art. 46 para. 47 Art. 49 para. 32 Art. 84 para. 13 Art. 74 paras. 16, 18

German: Gaus, [1997] Wirtschaftsrechtliche Beratung (WiB) 181 [184 n.53]; Schlechtriem, Internationales UN-Kaufrecht (1996) 103 n.114

Spanish: Perales, Cuadernos Jurídicos 3 (1996) No. 43, 5 [7 n.29] [commentary on Article 78: determination of rate of interest under the CISG (review of case law)]

Go to Case Table of Contents

Case text (English translation)

Queen Mary Case Translation Programme

District Court of Oldenburg (Landesgericht)

9 November 1994 [12 0 674/93]

Translation [*] by Dr. Peter Feuerstein [**]

Translation edited by Todd J. Fox [***]

Facts

The [seller], which has its place of business in Italy, makes a claim against the German [buyer] for the payment of the purchase price. The [buyer] has filed counterclaims.

Grounds for the decision

The [seller's] action is predominately successful. The [seller] has a claim under Art. 53 CISG for the payment of the price for six lorry platforms and two belts.

The CISG applies to contracts for the sale of goods between parties who have their places of business in different Contracting States. A contract for the supply of goods to be manufactured is considered a sale (Art. 3(1) CISG). The [buyer] did not supply a substantial part of the materials necessary for the manufacture of the goods (Art. 3(1) CISG); and the goods (lorry platforms and belts) are not intended for personal use (CISG Art. 2). At the time of the conclusion of the contract, Germany and Italy were Contracting States (Art. 1(1)(a) CISG).

The [buyer's] counterclaims are mostly rejected.

The following facts could be established, with some difficulty: The [seller] took back for repair five of the six platforms that had been ordered and delivered in the beginning of the year 1992. Regarding this, the [seller] credited the [buyer's] account on 1 June 1992. According to the substantially undisputed pleading of the [buyer], this return of the goods took place due to defects that had to be remedied.

Since neither party presents further details, the Court assumes that the repair of the defects had been a consensual cure in accordance with Arts. 46(3), 48 CISG.

It does not need to be decided whether the cure was successful and whether all defects were remedied. The [buyer] would have lost the right to rely on a lack of conformity according to Art. 39 CISG. If the attempted cure is unsuccessful, that constitutes a new failure by the seller to perform its contractual obligations (cf. Soergel /Huber, BGB [*] 12th ed., UN-KaufAbk. [*] Art. 46, Annotation 92). Under Art. 39(1) CISG, the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it. Accordingly, the legal remedies of the buyer for the delivery of goods not in conformity with the contract require a notice specifying the nature of the lack of conformity (Huber, op.cit., Art. 45, Annotation 25). Regarding the buyer's right to declare the contract avoided, Art. 49(2)(b)(i) CISG requires that avoidance be declared within the same reasonable time.

According to the pleadings of the parties, after the return of the goods on 1 June 1992 and for approximately the next four weeks no other notice of lack of conformity pertaining to the other two platforms was given.

For the same reasons, the [buyer's] claims for the alleged delivery of non-conforming goods in 1991 fail. Thus it need not be decided whether the [buyer] also bore the risk of transport for this mail-order sale.

The [buyer] did not plead any excuses under Art. 44 CISG for the failure to give the required notice.

Along with the right to demand cure, however, the [buyer's] rights under Art. 45(1)(b) CISG to other remedies for breach of contract by the seller remain unaffected. According to this provision, besides demanding subsequent delivery or cure, the buyer can request damages for incidental and consequential losses suffered (cf. Huber, op. cit., Art. 45, Annotation 27). Of the damages claimed by [buyer], travel expenses [...] as well as the tolls [...] and the freight costs, which were incurred for the subsequently delivered platforms, are recoverable.

The [buyer's] costs for the repair of the defects are, however, not to be reimbursed on account of the above-mentioned failure to give notice of lack of conformity. The same applies to the expenses incurred for the services of the expert, which were accrued after the return of the remedied platforms. For the [buyer's] loss of profits, there are no indications or bases for an estimate. Thus, it need not be decided whether the CISG, like German law, does not grant any damages for the personal trouble one has taken in the course of performance […].

Finally, the [buyer] can also not claim any compensatory damages [...]. The [buyer] did not establish the requirements for the claim and also did not furnish proof of the amount of the damage.

The [seller] is entitled to interest under Art. 78 CISG. As the CISG does not regulate the interest rate, reference is to be made to the national law to be determined by the EGBGB [*] (OLG Frankfurt, NJW [*] 94, 1013; Schwenzer, NJW 90, 602, 606 et seq.). In this case, with an Italian seller, Italian law applies (OLG [*] Frankfurt, op.cit.). The [seller] has not shown that it suffered losses higher than the legal interest rate of 10% that applies in this case.


FOOTNOTES

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

Translator's note on abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EWGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws]; NJW = Neue Juristische Wochenschrift [German law journal]; OLG = Oberlandesgericht [Regional Court of Appeals]; UN-KaufAbk = CISG.

** Dr. Peter Feuerstein is an International Legal Consultant. He conducted his post graduate research at Cambridge University, England, where he studied at Clare College in preparation of his Doctoral Dissertation. He received his Dr. jur. from Philipps-University of Marburg, Hessia, Germany, in 1977. The second-iteration redaction of this translation was by Dr. John Felemegas.

*** Todd J. 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 Albert-Ludwig-Universität Freiburg.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated August 12, 2005
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography