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CISG CASE PRESENTATION

Denmark 22 January 1996 Eastern Appellate Court Copenhagen (Dänisches Bettenlager v. Forenede Factors) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960122d1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19960122 (22 January 1996)

JURISDICTION: Denmark

TRIBUNAL: Østre Landsret [Eastern Appellate Court] København (ØLK)

JUDGE(S): Harald Boas, Plessing, B.O. Jesperson

CASE NUMBER/DOCKET NUMBER: U.1996.616Ø

CASE NAME: Dänisches Bettenlager GmbH & Co. v. Forenede Factors Als

CASE HISTORY: 1st instance Glostrup Rets Kendelse 25 October 1995 [affirming]

SELLER'S COUNTRY: Denmark (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Rattan products


Case abstract

DENMARK: Østre Landsret 22 January 1996

Case law on UNCITRAL Texts (CLOUT) abstract no. 162

Reproduced with permission from UNCITRAL

The [seller], a Danish factoring company, sued the [buyer] seeking to collect debts based on several invoices for the supply of goods. The debts had been assigned by the [buyer's] supplier to the [seller].

In order to determine which court had jurisdiction, the court applied article 5(1) of the 1968 EU (Brussels) Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, according to which an EU domiciliary may be sued in the courts at the place of performance of the obligation in question (payment). The court found that the CISG was applicable since both Germany and Denmark were States Parties to the CISG and the transaction dealt with the sale of goods. The court further held that the court at the seller's place of business had jurisdiction (article 57 CISG).

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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 57(1)(a)

Classification of issues using UNCITRAL classification code numbers:

57A [Place for payment: in absence of agreement, payment at seller's place of business]

Descriptors: Jurisdiction ; Payment, place of

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=179&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 758 No. 173

Polish: Hermanowski/Jastrzebski, [1997] Konwencja Narodów Zjednoczonych o umowach miedzynarodowej sprzedazy towarów. Konwencja wiedenska. Komentarz (Warszawa: ABC) 293

CITATIONS TO TEXT OF DECISION

Original language (Danish): CISG Nordic website <http://www.cisgnordic.net/960122DK.shtml>; Ugeskrift for Retsvaesen (UfR) 1996, 616-617 (ØLK); Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=179&step=FullText>

Translation (English): CISG Nordic website <http://www.cisgnordic.net/960122DK.shtml>; adaptation of that translation presented below

CITATIONS TO COMMENTS ON DECISION

English: Lookofsky, Understanding the CISG in Scandinavia (DJØF Publishing Copenhagen 1996) 66 n. 114; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.441; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 57 para. 11a

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Case text (English translation)

Source: CISG Denmark website <http://www.cisg.dk>. Translation [*] by Sandro Nielsen [**].

Order of the Danish High Court, Eastern Division
Chamber no. 4 of 22 January 1996 [Case No. B-3112-95]

Dänisches Bettenlanger GmbH & Co. KG v. Forenede Factors A/S

Court composed of Harald Boas, Plessing, B. O. Jespersen. Appearances: J. O. Kock, advocate, for the Claimant [seller]; Ebbe Suenson, advocate, for the Defendant [buyer]. Appeal from the District Court.

Order of Glostrup County Court of 22 October 1995

In the proceedings, which were brought on 31 January 1994, the [seller] claimed that the [buyer] be ordered to pay DKK [Danish krone] 2,040,064.07 plus interest at a specified amount.

The claim, which was later reduced, concerns payment for consignments of goods under a number of invoices made out by Dansk Rattan A/S during the period from 23 April to 28 August 1992. Under a contract of 22 December 1987 between the [seller] and Dansk Rattan A/S, these invoices were assigned to the [seller] under an invoicing arrangement.

Dansk Rattan A/S has subsequently become subject to insolvency proceedings.

In its primary claim, the [buyer] moved for a dismissal arguing that the Danish courts had no jurisdiction over the [buyer]. In the alternative, the [buyer] moved for a dismissal, because it had not received proper notice of the assignments, and because of set-offs relating to consignments from the [buyer] to Danish Rattan A/S, which exceeded the amount claimed. Furthermore, the amounts claimed largely related to substitute goods replacing goods that had been delivered and paid for. Finally, the [buyer] claimed that, in several consignments, the goods did not conform to the terms of the contract.

The question concerning the jurisdiction of the court has been considered separately.

The [seller] relied on Article 5(1) of the EC Judgments Convention. The [seller] also relied on a letter dated 17 December 1993 from the [buyer's] German lawyer, which contains a passage reading:

"Die Muttergesellschaft unserer Mandantin hat ihren Sitz in Dänemark. Vor diesem Hintergrund sehen wir keine Schwierigkeiten einen Rechtstreit vor dem für den Sitz der Fa. Danish Rattan zuständigen Gericht zu führen," [The principal place of business of the parent company of our client [the buyer] is situated in Denmark. Consequently, we see no problems having a dispute heard by the court in whose district the principal place of business of Danish Rattan is situated.]

The [seller] submitted that this constitutes a choice-of-forum agreement.

The [buyer] submitted that there is no contractual relationship between the parties to these proceedings and, consequently, proceedings must be brought at the [buyer's] home court in Flensburg [Germany] pursuant to Article 5(3). The [buyer] further submitted that the letter of 17 December 1993 from the [buyer's] German lawyer and invoked by the [seller] did not constitute a choice-of-forum agreement, but was merely a statement to the effect that it would present no serious problem to the [buyer] if the proceedings were brought in Denmark.

Grounds of the order

The court holds that the letter of 17 December 1993 does not constitute a choice-of-forum agreement.

The claim is based on an assignment by the original creditor to the [seller], so that the [seller] has become a party to the contract between Dansk Rattan A/S and the [buyer]. As the [seller] has become a party to the contract between the [buyer] and Dansk Rattan A/S, the claim is governed by Article 5(1) of the EC Judgments Convention.

The court does not hereby decide the extent to which the [seller] has a valid claim.

The court further observes that according to Article 5(1), the decisive factor is the place of performance of the obligation to pay. As this case concerns international sale of goods, this question will have to be decided according to CISG (Convention on Contracts for the International Sale of Goods), which was ratified by both Denmark and Germany in 1990. According to Article 57 of the Convention, payment must be made at the seller's place of business unless otherwise agreed. As the existence of a contrary agreement has not been proved to the satisfaction of the court, the place of performance is in Denmark and consequently, this court is the court of competent jurisdiction.

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Order of the Danish High Court

This court holds that the [buyer's] obligation to pay is governed by Article 5(1) of the EC Judgments Convention, and that the place of performance is in Denmark. On those grounds the court hereby rules that the appeal is dismissed.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Claimant of Denmark is referred to as [seller]; the Defendant of Germany is referred to as [buyer].

** Sandro Nielsen Ph.D., M.A. (LSP) is Associate Professor, Aarhus School of Business, Department of English.

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Pace Law School Institute of International Commercial Law - Last updated October 1, 2013
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