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Germany 21 August 1995 Appellate Court Stuttgart (Machinery case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950821g1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19950821 (21 August 1995)


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

JUDGE(S): Unavailable


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

CASE HISTORY:1st instance LG Stuttgart (2KfH O 159/93) 1 July 1994 [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)


Case abstract

GERMANY: Oberlandesgericht Stuttgart 21 August 1995

Case law on UNCITRAL texts (CLOUT) abstract no. 289

Reproduced with permission from UNCITRAL

An Italian seller, plaintiff, claimed payment for a machine delivered to a German buyer, defendant, under a contract of sale. The buyer argued that the machine was defective and refused to pay the full purchase price.

The court allowed the seller's claim. It held that the buyer had not given notice of the lack of conformity to the seller within a reasonable time. Taking into account different national legal traditions, "within a reasonable time" would have meant about one month. Moreover, the buyer had not given notice that sufficiently specified the lack of conformity (article 39(1) CISG). The court held that the buyer had failed to give notice of the lack of conformity as required by the Convention and was therefore obliged to pay the purchase price (article 53). Furthermore, the court said that the matter of set-off is not covered by the CISG.

Case abstract

Prepared by Camilla Andersen for commentary on notice issues under Article 39(1)

"In a judgment ... regarding the sale of machines ... the Court referred to the Supreme Court [BGH] judgment [of 8 March 1995], and added that the Article 39(1) time-frame was -- within the framework of the CISG in the light of the differing domestic legal traditions -- approximately one month." ["Diese Frist beträgt im Rahmen des CISG im Hinblick auf die unterschiedlichen nationalen Rechtstraditionen etwa einen Monat."] Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 122. "However, in the present case, the buyer could not prove that he had given notice." Id. at n.211.

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Classification of issues present

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


Key CISG provisions at issue: Articles 4 ; 7 ; 38 ; 39 [Also cited: Articles 1 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Issues covered and excluded (issues excluded): set-off];

7C23 [Gap-filling by domestic law: set-off];

38A [Buyer's obligation to examine goods: time for examining goods];

39A1 ; 39A2 [Requirement to notify seller of lack of conformity: specification of nature of non-conformity; Within reasonable time]

Descriptors: Scope of Convention ; Gap-filling ; Set-off ; Examination of goods ; Lack of conformity notice, specificity ; Lack of conformity notice, timeliness

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Editorial remarks

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Citations to other abstracts, case texts and commentaries


English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=158&step=Abstract>; Forum des Internationalen Rechts / The International Legal Forum 1 (1996) 17

German: Jahrbuch für Italienisches Recht (1996) 208-209

Italian: [1998] Diritto del Commercio Internazionale 745-746 No. 159


Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/150.htm>; Recht der Internationalen Wirtschaft (RIW) 1995, 943-944; Praxis des internationalen Privat- und Verfahrensrechts (IPRax) 1996, 139-140; Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre (IPRspr) 1995 No. 42 [78-79]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=158&step=FullText>

Translation (English): Text presented below


English: Ferrari, International Legal Forum (4/1998) 138-255 [226 n.792 (scope of CISG: set-off issues), 238 n.916 (notice of lack of conformity)]; Bernstein/Lookofsky, Understanding the CISG in Europe (1997) 62 n.66; T.S. [Simons] Forum des Internationalen Rechts / The International Legal Forum (München) [English Language edition] 1 (1996) 18; for a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace essay on this subject by Camilla Baasch Andersen; Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act (2000) § [analysis of related articles 38, 39, 40 and 44 (includes digests of relevant material in many CISG cases; also digests cases under a domestic sales code that is patterned, for the most part, after the CISG)]; Perales, 6:2 Vindobona Journal (2002) 217-228, n. 17 [set-off]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 4-9 n.134; 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); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 46, 66, 131; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 17

Finnish: Huber/Sundström, Defensor Legis (1997) 747 [759 n.58]

German: H.K. [Kronke] Praxis des internationalen Privat- und Verfahrensrechts (IPRax) 1996, 139-140; Piltz, [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 13 [15 n.21]; T.S. [Simons] Forum des Internationalen Rechts / The International Legal Forum 1 (1996) 18; Schlechtriem, Internationales UN-Kaufrecht (1996) 89 n.77

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Case text (English translation)

Court of Appeals (Oberlandesgericht) Stuttgart 21 August 1995

Translation [*] by Alston & Bird LL.P.

Editors: William M. Barron, Esq.; Birgit Kurtz, Esq.
Coordinator: Thomas Carlé (Referendar); Translators
(Referendars): Thomas Carlé; Nicola Heraeus;
Carmela Schmelzer; Ulrich Springer

Excerpt of grounds


2.  Pursuant to the U.N. Convention on Contracts for the International Sale of Goods ("CISG") Art. 53, plaintiff [seller] also has a claim for the balance of the purchase price of the machine which was delivered to defendant's [buyer's] customer D.

     a) The legal relationships arising from the purchase of the machine are subject to the CISG (CISG Art. 1(1)(a); the Convention is in effect in Italy since January 1, 1988, in Germany since January 1, 1991).

     b) [Buyer] has no warranty rights based on the machine's lack of conformity with the contract.

The question whether the machine is defective because of a lack of accuracy and repetitive accuracy -- which was claimed only during trial -- may remain undecided. Because of CISG Art. 39, [buyer] cannot rely on this defect anymore. According to CISG Art. 39, the buyer loses the right to rely on the goods' lack of conformity with the contract if he fails to give notice to the seller specifying within a reasonable time after he has discovered it or, according to CISG Art. 38, ought to have discovered it. Within the framework of the CISG considering the different national legal traditions, this time period is about one month. (BGH VIII ZR 159/94, dated March 8, 1995, RIW 1995, 595 et seq.)[*]

During trial, [buyer] did not claim that he had given notice to the seller of the lack of conformity in satisfaction of CISG Art. 39. The trial court's (here the Landgericht) judgment is itself based on [buyer's] failure to give facts to support the contention that he gave a specified notice to the seller within a reasonable time. On appeal, [buyer] claimed that he had given notice to the seller immediately after he discovered the defect. This submission was not substantiated, there were no details given as to when the defect was discovered, when the notice was given and how the lack of conformity was described. [...]

3.  The District Court deducted from [seller's] claim an unappealed counterclaim by [buyer] for his customer S.

4.  The set-off against [buyer's] further counterclaims, set forth during the appeal, does not have to be denied because of the German courts' possible lack of international jurisdiction. (Cf. BGH NJW [*] 1993, 2753.) [Seller] accepted the set-off without argument so that the set-off is permissible according to EuGV [*] Art. 18. The question until when a jurisdiction defense must be pleaded is determined by the lex fori. (Cf. Kropholler, Europäisches Zivilprozeßrecht (European Law of Civil Procedure) Art. 18 66 6, 16 (3d ed. 1991).) According to ZPO [*] § 282(3), which must be applied analogously, plaintiff had to plead the jurisdictional defense prior to the trial of the case, as soon as the set-offs were identifiably introduced into the trial. [...]

The set-off is, however, not permissible under C.c. [*] Art. 1243, because [buyer's] claims, that were not granted by the trial court and still set forth on appeal, are not adequately determined as to their amount and legal basis.

The set-off itself is subject to the law of the claim against which it is set-off. (Palandt [*] -Heinrichs, BGB,[*] EGBGB [*] Art. 32 6 6 (54th ed. 1995).) Here, that is Italian law according to EGBGB Art. 28. (There are no provisions concerning the set-off of a claim in the CISG; consequently, the general conflict of laws provisions ("IPR" [*] ) apply. (Cf. Staudinger/Magnus, BGB, CISG Art. 4 6 47 (13th ed. 1995).) Codice civile Art. 1241 et seq. are determinative. The requirement is that two persons owe each other performance of the same kind, each certain and due; then the set-off voids the mutual claims from the day of their mutual existence on. Contrary to German law, C.c. Art. 1243 requires that both claims be certain; the set-off against a claim in dispute is not permissible. That is not the case if the other party agrees to the set-off (C.c. Art. 1252), but this does not apply to plaintiff, who expressly opposed the set-off. Uncertain claims can be set forth in the case of C.c. Art. 1243(2) by cross-claim. (Set-off in court proceedings, see generally Kindler, Einführung in das italienische Recht (Introduction to Italian Law) Ch. 14 6 15 (1993). Within the framework of the German civil procedure, which is subject to the lex fori, there is no such possibility of a set-off in court proceedings as defined by C.c. Art. 1243(2); the possibility of a set-off depends solely on the substantive requirements of Italian law (Cf. District Court (Landgericht) of Darmstadt, IPRspr.[*] 1991, page 105).

All claims marked for set-off by [buyer] on appeal are in dispute and uncertain regarding their legal basis and amount. Claims in dispute are only considered "liquid" as defined by C.c. Art. 1243 if a denial is evidently unfounded. (Kindler, supra, at 6 15).


* 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]; BGH = Bundesgerichtshof" [German Federal Supreme Court]; C.c. = Codice civile [Italian Civil Code]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuch [Introductory Law to the German Civil Code]; EuGVÜ = Europäisches Übereinkommen über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entscheidungen in Zivil- und Handelssachen [European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters]; IPR = Internationales Privatrecht [German Conflict of Laws provisions]; IPRspr. = Die deutsche Rechtsprechung auf dem Gebiet des internationale Privatrechts [German law journal covering jurisprudence on Conflict of Laws]; NJW = Neue Juristische Wochenschrift [Germany's foremost law journal]; Palandt = the foremost commentary to the BGB, the German Civil Code; RIW = Recht der Internationalen Wirtschaft [monthly German law journal, specializing in international business law]; ZPO = Zivilprozeßordnung [German Code of Civil Procedure].

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