Germany 2 May 1995 Lower Court Bayreuth (Sandstone case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950502g3.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 8 C 348/95
CASE HISTORY: Unavailable
SELLER'S COUNTRY: France (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Sandstone
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
25B [Definition of fundamental breach: substantial deprivation of expectation, etc.]; 49A1 ; 49B1 [Buyer's right to avoid contract (grounds for avoidance): fundamental breach; Buyer's loss of right to declare avoidance after delivery: failure to avoid within periods specified in art. 49(2)(a) and (b)]; 78A [Interest on delay in receiving price or any other term in arrears]
25B [Definition of fundamental breach: substantial deprivation of expectation, etc.];
49A1 ; 49B1 [Buyer's right to avoid contract (grounds for avoidance): fundamental breach; Buyer's loss of right to declare avoidance after delivery: failure to avoid within periods specified in art. 49(2)(a) and (b)];
78A [Interest on delay in receiving price or any other term in arrears]
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/388.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: 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]Go to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
2 May 1995 [8 C 348/95]
Translation [*] by Jan Henning Berg [**]
Plaintiff [Seller] is a company established under French law and sells sandstone. Defendant [Buyer] [of Germany] runs a stone works. Through its subsidiary in ... [Buyer] inquired of [Seller] on the availability of sandstone blocks. A corresponding list was sent to [Buyer], who ordered two of the available blocks of sandstone. They were collected by [Buyer] at the [Seller]'s as agreed. By letter dated 8 September 1994 [Seller] invoiced Deutsche Mark [DM] 6,611.25 for the stones.
POSITION OF THE PARTIES
Position of [Seller]
[Seller] alleges that it is entitled to an interest claim against [Buyer] based on an application of French law and on [Buyer] being in arrears with its payment.
[Seller] requests the Court to order [Buyer] to pay DM 6,611.25 plus 8.4% interest between 16 September 1994 until 31 December 1994, 5.82% interest between 1 January 1995 and 31 December 1995 and 6.65% interest since 1 January 1996.
Position of [Buyer]
[Buyer] requests the Court to dismiss [Seller]'s action.
[Buyer] submits that upon a reminder issued on 2 December 1994, [Buyer]'s CEO had called [Seller] and declared that the goods were defective. It was agreed that the goods could be returned. [Buyer] also challenges the interest claim.
REASONING OF THE COURT
[Seller]'s admissible action is justified in its entire amount. [Seller] is entitled to the asserted claims. The Lower Court (Amtsgericht) Bayreuth has territorial and subject matter jurisdiction to consider the dispute.
In particular, [Buyer] has its seat within the area of the Lower Court (Amtsgericht) Bayreuth, so that no doubts arise on its territorial jurisdiction.
The international jurisdiction of German courts follows from Art. 2(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968.
[Seller]'s claim is mature and must thus be paid by [Buyer]. According to Art. 28(1) and (2) EGBGB [*] in conjunction with Art. 4(1) and (2) of the Rome Convention on the Law Applicable to Contractual Obligations of 19 June 1980, French law is applicable which includes the CISG. The parties have not made any agreement in deviation.
[Buyer] cannot successfully rely on non-conformity of the delivered stones, in particular the existence of yellow spots on the sawed surfaces. There is no legally relevant lack of conformity.
[Seller] has contested [Buyer]'s submission that they had agreed on a return of the stones. [Buyer] has offered proof of this only by way of hearing its own CEO. However, [Seller] did not declare its necessary consent to the hearing of [Buyer]'s CEO.
The defect as such is irrelevant because [Buyer] failed to sufficiently demonstrate that it was not only a defect in terms of domestic German law, but also amounted to a fundamental breach of contract under Art. 25 CISG which would justify avoidance of the contract according to Art. 49 CISG. [Buyer] has moreover not shown that avoidance was properly declared within the required time. Its argument that the delivered blocks were defective cannot be considered pursuant to the applicable international provisions. Furthermore, it seems doubtful whether a defect at all exists because one of the two blocks has not been sawed yet. [Buyer] cannot have readily ascertained whether defects exist.
[Buyer] can also not rescind the conclusion of contract due to mistake about condition of the goods. This is impossible pursuant to prevailing opinion.
[Seller]'s action is therefore successful.
Despite [Buyer]'s objections, [Seller]'s claim for interest is founded as well because the interest rate is determined by French law. [Seller] has sufficiently substantiated and proved its interest claim.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of France is referred to as [Seller] and Defendant of Germany is referred to as [Buyer]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM].
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.Go to Case Table of Contents