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CISG CASE PRESENTATION

Germany 8 March 1995 Lower Court Wangen (Shoes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950308g2.html]

Primary source(s) for case presentation: Case text


Case Table of Contents


Case identification

DATE OF DECISION: 19950308 (8 March 1995)

JURISDICTION: Germany

TRIBUNAL: AG Wangen [AG = Amtsgericht = Petty District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 2 C 600/94

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: Shoes


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 78 [Also cited: 53 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

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

Descriptors: Interest

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Editorial remarks

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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=120&step=Abstract>

Italian: Diritto del Commercio Internazionale (1996) 646 No. 118

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/195.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=120&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Koneru, 6 Minnesota Journal of Global Trade (1997) 123-138; Kizer, 65 University of Chicago Law Review (1998) 1279-1306 [each containing comments on interest rulings in this case and other cases]; Liu Chengwei, Recovery of interest (November 2003) n.278; 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]

German: Piltz, Neue Juristische Wochenschrift (NJW) 1996, 2768 [2772 n.97]

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Petty District Court (Oberlandesgericht) Wangen

8 March 1995 [2 C 600/94]

Translation [*] by Jan Henning Berg [**]

FACTS

Plaintiff [Seller] operates a shoe manufacturing business and has its seat in (...), Italy. It demands from Defendant [Buyer], who owns a retail outlet for shoes, payment of the purchase price for the delivery of 346 pairs of shoes. The sum claimed by [Seller] is Italian Lira [Lit.] 25,026,000. The parties had determined that the net purchase price should be paid within 60 days after the issuance of the invoice.

On 6 October 1994, [Buyer] acknowledged a voluntary return a part of the delivered goods (value Lit. 15,213,500), meaning that a balance of Lit. 9,818,500 remains. This sum has been claimed by [Seller] with its present action.

POSITION OF THE PARTIES

Position of [Seller]

[Seller] requests the Court to order [Buyer] to pay Lit. 9,818,500 plus 16.5% interest on Lit. 25,026,000 from 13 September 1994 until 7 October 1994 and on Lit. 9,818,500 since 8 October 1994.

Position of [Buyer]

[Buyer] requests the Court to dismiss [Seller]'s action.

[Buyer] asserts that [Seller]'s submissions are not conclusive and further contests the interest claim on both its merits and its amount.

REASONING OF THE COURT

The admissible action is founded.

Since [Buyer] is domiciled within the district of the Petty District Court Wangen, the Court has both international and territorial jurisdiction to consider this action, cf. Art. 2 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

The United Nations Convention on Contracts for the International Sale of Goods governs the contractual relationship between the parties. The parties have not made a choice of the applicable law in accordance with Art. 27 EGBGB [*], to the effect that, in the absence of such choice of law, the contract will be governed under Art. 28 EGBGB by the law of that State to which the contract is most closely connected. Art. 1 CISG provides that the Convention applies to these cases, unless the respective State has declared a reservation.

Under these circumstances, it may remain undecided to which State (Italy or Germany) the contract bears the closest connection. If it were Italy, Italian law would apply. If it were Germany, German law would apply. However, both are Contracting States to the CISG and -- to the knowledge of the Court -- have not declared a reservation.

[Buyer]'s obligation to pay the purchase price follows from Art. 53 CISG, the obligation to pay interest is based on Art. 78 CISG.

In that respect, in order to claim 10% interest it is sufficient to submit that a bank loan in this amount has been used, because such interest rates are usual for loans which are not secured by immovable property.

However, if a creditor claims additional interest on the basis of Art. 74 CISG, it must at least submit that it was impossible to achieve a less expensive bank loan. If the creditor does not attempt to get a cheaper loan at market rates, it will be precluded from its argument that it suffered additional losses.

[...]


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 other abbreviations: EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws].

** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.

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Pace Law School Institute of International Commercial Law - Last updated December 9, 2008
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