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CISG CASE PRESENTATION

Germany 12 December 1995 District Court Marburg (Agricultural machine case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/951212g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19951212 (12 December 1995)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 2 O 246/95

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: Agricultural machine


Case abstract

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

"The goods (an agricultural machine) were delivered to the buyer on 26 June 1992 and redirected to a client on 22 July 1992. The machine immediately proved faulty and the buyer had to take it back. Notice that the machine did not function properly was delivered on 14 August 1992 and 31 August 1992 with no response from the seller. The Court stated that these notices were not specific enough as neither of them specified the serial number of the machine nor its date of delivery -- regardless of the fact that the buyer had only ever bought one such machine from the seller -- the seller could not be required to search through sales ledgers to locate the documents for the machine in question. The buyer further claimed to have telephoned specific notice to the seller, but since this could not be proven the Court found that this was not a valid notice. The Court added that since no satisfactory notice had been given until the start of the proceedings (which were initiated by the seller when the buyer tried to set-off his claim for the machine from other obligations) the absolute time-limit in Article 39(2) had lapsed, and the buyer could not rely on the non-conformity of the machine. With the application of Article 39(2), the buyer was excluded from presenting a reasonable excuse for the failure to give notice in accordance with Article 44." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 105-106. Andersen calls attention to a possible Article 38 issue stating, "It is surprising that the Court does not seem to consider the fact that the buyer had a duty to examine the goods (according to Art. 38) and thus discover the non-conformity before redirecting the goods. Art. 38(3) should not apply where the buyer takes possession of the goods before they are redirected, and the duty to examine the goods should not have been deferred." Id. at 105 n.143.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 39(1) [Also cited: Articles 58 ; 59 ]

Classification of issues using UNCITRAL classification code numbers:

39A11 ; 39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Degree of specificity required]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness ; Lack of conformity notice, specificity ; Telephone notice

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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=148&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 756-757 No. 171

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/148.htm>; Neue Juristische Wochenschrift-Rechtsprechungs Report (NJW-RR) 1996, 760; Recht der Internationalen Wirtschaft (RIW) 1996, 328-329; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=148&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [240 n.944 (notice of lack of conformity)]; for a survey of German case law on specifying the nature of the non-conformity, go to 1998 Pace essay by Camilla Baasch Andersen at Section III.1.1.; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.412 ("the notice must precisely identify the defective components by serial number and date of delivery"), 414 ("... the serial numbers and dates of delivery of such components must be included in the notice in order to spare the seller the inconvenience of researching the sales documentation with respect to all of the components or deliveries"); 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 90; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 paras. 6, 37

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Marburg

12 December 1995 [2 O 246/95]

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

Translation edited by Camilla Baasch Andersen [***]

FACTS OF THE CASE AND PLEADINGS

[Seller's position]

The [seller] makes a claim against the [buyer] for payment of the remaining purchase price for machinery delivered in the year 1993. The [seller] requests that the [buyer] be ordered to pay it DM [Deutsche Mark] 14,660 plus 4% interest from 9 June 1994.

[Buyer's position]

The [buyer] is of the opinion that the [seller]'s claim was extinguished due to the [buyer]'s set-off with a claim for damages. According to the [buyer], its counterclaim results from the [seller]'s delivery of a defective chaffcutter (agricultural machine) of the type TS 480 on 29 June 1992. The lack of conformity was only discovered after the [buyer] had resold the machinery to the A. corporation on 22 July 1992. Because of the defect, the [buyer] had to take back the machine. The [buyer] further submits that the [seller] initially did not react to the [buyer]'s notices specifying the lack of conformity on 14 August and 31 August 1992. When called, the [seller] repeatedly assured the [buyer] that the lack of conformity would be remedied. However, no action was taken. In October 1993, [seller]'s employee G. guaranteed to the [buyer] that the machine would be replaced. During a visit in January 1994, [seller]'s employee D. had informed the [buyer] that the [seller] would take back the machine.

[Decision of the Court]

The claim of [seller] was successful.

REASONING OF THE COURT

The [seller] is entitled to claim payment of the purchase price under Articles 58 and 59 CISG, which applies to the contractual relationship between the parties.

The [seller]'s claim was not extinguished by the [buyer]'s declaration of a set-off - also provided for under Italian law - with a claim for damages. It cannot be determined that the [buyer] is entitled to such a claim.

It need not be ascertained whether the machine queried by the [buyer] was in fact defective. The [buyer] lost its right to rely on the non-conformity of the goods sold because it did not give notice to [seller] specifying the lack of conformity within reasonable time (Art. 39(1) CISG). The [buyer] did not submit at which point in time [buyer] or another person discovered the non-conformity of the machine. Even under the assumption that the defect could not have been discovered by a visual examination of the machine after delivery, and under the further assumption that the [buyer] was only able to resell a machine that had not been put to use before, still the [buyer] should have indicated at what point in time its customer had noticed and complained of the defect. Thus, the question remains open whether the [buyer] gave a timely notice of the defect with its letter of 14 August 1992.

Moreover, the [buyer]'s notice of non-conformity does not specify which machine the [buyer] refers to, as the letter solely complains of general non-conformities of the model TS, without referring to a particular machine with a type name and a delivery date. This data is also not revealed by the attached drawing of an unspecified machine. The [buyer]'s letter of 31 August 1992 furthermore refers to two different pieces of equipment; a connection to the letter of 14 August 1992 is neither made nor is it discernible.

In this context, the [buyer] is unable to rely on its submission that it only ordered one machine in the year 1992 from the [seller]. A notice of defect must contain sufficient detail to allow the [seller] to discover which machinery and which delivery date the complaint refers to - without checking all its business papers and making further inquiries. The [buyer]'s letters do not meet these requirements. Nothing follows from the telephone conversations the [buyer] allegedly held, because the [buyer] again does not make substantiated submissions at what time its employee held the conversations and with whom and with what content specifically. It remains open whether the conversations are supposed to have taken place before or after the [buyer]'s letters of 14 August and 31 August 1992.

It cannot be found that the requirements of Art. 39 CISG could possibly be dispensed with in the present case because the [seller] gave a more extensive guarantee. While the [seller] itself has mentioned a one-year guarantee, the [buyer] does not rely on the [seller]'s declaration of guarantee. As the content of the guarantee is not known to the Court, a legal conclusion cannot be drawn from it.

Insofar as the [buyer] pleads that the [seller]'s employees assured the [buyer] that the machine would be remedied, replaced or taken back, the ambiguous submissions leave open the content of a possible agreement of the parties - remedy of the defect, replacement of the machine or avoidance of contract. Therefore, it cannot be ascertained whether the [buyer] possesses a counterclaim over a certain sum which would entitle it to a set-off. Consequently, the Court does not look into these submissions.


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]. Amounts in German currency (Deutsche Mark) are indicated as [DM].

** Ruth M. Janal, LL.M. (UNSW) is a PhD candidate at Albert-Ludwigs-Universität Freiburg. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

*** Camilla Baasch Andersen is a Lecturer in International Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London, and a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She is currently finishing her PhD thesis on uniformity of the CISG at the University of Copenhagen.

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