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CISG CASE PRESENTATION

Germany 24 January 1996 District Court Bochum (Truffles case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960124g1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19960124 (24 January 1996)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 13 O 142/95

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: Truffles


Case abstract

Germany: Landgericht Bochum 24 January 1996

Case Law on UNCITRAL texts (CLOUT) abstract no. 411

Reproduced with permission from UNCITRAL

An Italian wholesale distributor for food, the plaintiff, delivered truffle[s] to a German buyer, the defendant. After examination the buyer gave notice to X, an employee of the seller, that the truffle[s] were too soft. X declared that it was not authorised to receive complaints but that it will forward the notice. The buyer also returned the final account by fax mentioning that it objected to the quality of the goods. Later, maggots appeared in the truffle[s]. The buyer held the first notice to be sufficient. The seller sued the buyer for the purchase price.

The Court allowed the claim under article 53 CISG. It found that the buyer's notice had not met the requirements of article 39 CISG. As regards to specification of the nature of the lack giving notice that the truffle[s] were soft was held as being too general. Moreover the buyer failed to address its notice to the appropriate person. X was employed as sales-person and as such not authorised to receive complaints. Therefore X acted as messenger to forward the notice to the seller. The buyer failed to prove that X forwarded the notice as promised.

As to the appearance of maggots, the Court found that the buyer had to give further notice because the lack was not covered by the first notice.

The Court granted interest under article 78 CISG.

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Case abstract

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

"[T]he buyer notified the seller that the truffles delivered to him were 'soft'. This was not found to be a specific notice that the truffles contained worms, despite the fact that the buyer claimed that most professional truffle-vendors would know that softness implied a probable worm-infestation. The Court stated that, regardless, the buyer should have added that the truffles 'had worms due to their softness upon delivery' for the notice to be considered sufficiently specific. The Court also added that where notice of lack of conformity is not given personally to the seller, the buyer must ensure that the seller actually receives notice." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 104-105.

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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: Articles 27 ; 39(1) [Also cited: Article 78 ]

Classification of issues using UNCITRAL classification code numbers:

27A [Dispatch of communication by appropriate means];

39A1 ; 39C [Requirement to notify seller of lack of conformity (specification of nature of lack of conformity); Other issues concerning notification: "Where the notice of lack of conformity is not given personally to the seller, the buyer must make sure that the notice is actually received by the seller itself"]

Descriptors: Lack of conformity notice, specificity ; Communications, risk 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=194&step=Abstract>

Italian: [1998] Diritto del Commercio Internazionale 1099-1100 No. 202

CITATIONS TO TEXT OF DECISION

Original language (German): Forum des Internationalen Rechts/The International Legal Forum (München): (1996) 93-94 = Forum: English Language Edition (1996) 92-93; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=194&step=FullText> [excerpt]

Translation (English): Text presented below [excerpt]

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [240 n.941 (notice of lack of conformity)]; St.S. [Sölla] Forum [English language edition] 1 (1996) 93; 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.; Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act (2000) §§ 4.3.1, 4.3.4 [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)]; 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 97, 182; 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. 27 para. 7; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 270

German: St.S. [Sölla] Forum 1 (1996) 94

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Bochum 24 January 1996

Translation by Nicole Harkin [*]

Translation edited by Camilla Baasch Andersen [**]

Reasoning of the Court (excerpt):

The proceeding is still ongoing.

In accordance with Article 39 of the CISG, the [buyer] lost the right to rely on a lack of conformity of the goods because the lack of conformity was not reported to the [seller] within a reasonable time after [buyer] discovered it or ought to have discovered it, and the lack of conformity was not described in the proper manner. The reason why the truffles were soft was not explained. There was no mention of [buyer]'s complaint that the truffles had maggots. The first notice of lack of conformity does not satisfy Article 39 of the CISG because the defect in the truffles was not sufficiently detailed.

M. -- the person to whom this notice was given -- explained to [buyer]'s witness G. that she was only a salesperson not authorized to accept the notice of lack of conformity, but that she would pass along the complaint. At this time, the complained lack of conformity was not discussed directly with the [seller], but with a person who was not responsible for the contract. Afterwards, only when the [buyer] knew that salesperson M. was not the proper person to accept the notice, did the [buyer] make use of a messenger to transmit [buyer]'s notice of lack of conformity. [Buyer] has not argued that salesperson M. passed along the complaint. This is in doubt.


FOOTNOTES

* Niclole Harkin is a law student at the Pace University School of Law and a Research Assistant of the Pace Institute of International Commercial Law.

** 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.

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated December 5, 2005
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