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CISG CASE PRESENTATION

Germany 20 July 1995 District Court Aachen [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950720g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19950720 (20 July 1995)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 41 O 111/95

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: Unavailable


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(2) ; 78 [Also cited: 4 ; 61(1)(b) ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

7C2 ; 7C23 [Interpretation of Convention (gap-filling): matters governed by Convention but not expressly settled; Gap-filling by domestic law];

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

Descriptors: Gap-filling ; General principles ; 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=125&step=Abstract>

Italian: Diritto del Commercio Internazionale (1996) 653 No. 125

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/169.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=125&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [146 n.73 (reliance on legislative history), 247 n.1027, 253 n.1077, 253 n.1079 n.1080, 254 n.1091 (interest issues)]; Honnold, Uniform Law for International Sales (1999) 95 [reliance on legislative history]; Lookofsky, Understanding the CISG in Scandinavia (1996) 29 n.110, 114-115; Bernstein/Lookofsky, CISG/Europe (1997) 25 n.96, 27 n.106, 122 n.270; Van Alstine, 146 University of Pennsylvania Law Review (1998) 767 n.334 [interest issues]; Koneru, 6 Minnesota Journal of Global Trade (1997) 123-138 [comments on interest rulings in this case and other cases]; Thiele, 2 Vindobono Journal (1998) 3-35, citing this case [n.50] and 42 other interest rulings; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-11 n.173; § 6-31 n.359; Liu Chengwei, Recovery of interest (November 2003) nn.85, 140, 154; 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. 74 para. 20

Finnish: Huber/Sundström, Defensor Legis (1997) 747 [758 n.51]

Spanish: Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 158

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Case text (English translation)

Queen Mary Case Translation Programme

District Court of Aachen (Landgericht )

20 July 1995 [41 O 111/95]

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

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

GROUNDS FOR DECISION

[....]

In this matter, the plaintiff's claim is admissible and founded; thus, a judgment in absentia could be rendered according to the content of the operative provisions of the judgment.

This applies also to the interest rate.

In Art. 78 CISG there is a regulation for interest. This provision is applicable in principle, as Art. 4, sentence 1, CISG stipulates that the Convention governs all rights and obligations of the seller and the buyer arising from the contract of sale. This provision [Art. 78 CISG] provides only for an obligation to pay interest.

This norm does not say anything about the interest rate to be paid. Thus there is a gap in the law; there is dispute about how to fill it.

It has been argued that the interest rate must be determined by having recourse to the general principles of the CISG in order to achieve an internationally uniform regulation (cf. Eberstein/Bacher in von Caemmerer / Schlechtriem, Kommentar zum einheitlichen UN-Kaufrecht, 2nd ed., Art. 78, Annotation 21, Footnote 30). Against this, it has been argued that a uniform solution could not be achieved at the conferences for the drafting of the CISG, as the different opinions about the interest obligation were irreconcilable (cf. op. cit., Annotation 2).

Preferable is the opinion that the interest rate is to be taken from the applicable national law supplementing the CISG, which in turn is to be determined in accordance with the conflict of laws rules of the forum State (cf. op. cit., Annotation 21, Footnote 31). According to German private international law, the interest rate is determined - even though this is not undisputed (cf. Palandt/Heldrich, BGB [*], 54th ed., Art. 32 EGBGB [*], Annotation 5) - according to the law governing of the contract; thus, according to the law which would be applicable to the sales contract if the contract were not subject to the Convention. According to Art. 28 EGBGB, the law of the State which has had the closest connection with the contract would have to be applied (Art. 28 I 1 EGBGB). Thereby one has to look to the characteristic performances under the contract (cf. Art. 28 II 1 EGBGB, respectively Art. 4 II EVU). With contracts of sales, therefore, the law of the State where the seller has its main place of business is applicable (cf. Palandt-Heldrich, op. cit., Art. 28 EGBGB, Annotation 8). Thus, Italian law applies to the interest rate. In Italian law - insofar equivalent to the German regulation - there is a distinction between the legal interest rate and an interest rate based on damages caused by delay. Since under Art. 1284 I Codice Civil (Italian Civil Code) the legal interest rate is already 10%, there is no objection to the requested interest rate in the present case.

The point in time from which interest is owed is derived from Art. 78 CISG. According to this provision, the maturity of the obligation to pay the price or any other sum in arrears is sufficient for the right to request interest. A default must not be present (cf. Eberstein/Bacher, op. cit., Annotation 9 to Art. 78). The pre-trial costs have to be reimbursed under Art. 78 CISG in connection with Arts. 74, 61(1)(b) CISG.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. Translator's note on abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuch [German Code on the Conflict of Laws].

** 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 the Feuerstein translation was by Dr. John Felemegas of Australia.

*** Ruth M. Janal, LL.M. (UNSW) is a PhD candidate at Albert-Ludwig-Universität Freiburg.

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Pace Law School Institute of International Commercial Law - Last updated August 11, 2005
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