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CISG CASE PRESENTATION

Germany 27 March 1996 District Court Oldenburg (Clothes case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960327g1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19960327 (27 March 1996)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 12 O 2541/95

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: Clothes


Case abstract

Prepared by Robert Koch for commentary on fundamental breach

"The Oldenburg District Court . . . denied fundamental breach in a dispute between a German buyer and an Italian seller where the seller had dispatched summer clothes one day later than the stipulated time. The Court concluded from the fact that the buyer took delivery of the goods instead of rejecting them that time was not of the essence of the contract." Koch, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 237.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 31 ; 33 ; 49(2)(a) ; 53 ; 78

Classification of issues using UNCITRAL classification code numbers:

25B [Definition of fundamental breach: one day delay in delivery of clothes held not a fundamental breach of contract unless parties had agreed to an absolute time limit for delivery];

33A [Time for delivery: on date fixed by or determinable from contract];

49B1 [Buyer's loss of right to declare avoidance after delivery: failure to avoid within reasonable time];

53A [Buyer's obligation to pay price of goods];

78B [Interest on delay in receiving price: rate of interest (at statutory rate in creditor's country)]

Descriptors: Fundamental breach ; Avoidance ; Delivery ; Price ; 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: See above; see also Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=255&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/188.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=255&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 237 n.205 [fundamental breach (nature of contractual obligation); timely delivery]; Graffi, Case Law on the Concept of "Fundamental Breach" in the Vienna Sales Convention, Revue de droit des affaires internationales / International Business Law Journal, No. 3 (2003) 338-349 at n.54; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.503; 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]; Spaic, Analysis of Fundamental Breach under the CISG (December 2006) n.276

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Case text (English translation)

Queen Mary Case Translation Programme

District Court (Landgericht) Oldenburg

27 March 1996 [12 O 2541/95]

Translation [*] by Stella Heyken [**]

Edited by Andrea Vincze [***]

FACTS OF THE CASE

[Seller] is a resident of Italy, [Buyers] are from Germany. [Buyers] previously ran a public partnership in Oldenburg under the name [...]. In this capacity, [Buyers] had a business relationship with [Seller] until March 1990 when a clearance sale took place and the retail shop was closed down.

[Seller] states that it delivered [Buyers]' clothes at the agreed purchase price of DM 21,686.10. This is evidenced by copies of orders, order confirmations, invoices and delivery notes relating to the goods delivered in 1990. [...] Concerning the goods delivered in 1989, [Seller] states that the goods delivered in 1989 were handed over to the carrier who informed [Seller] about difficulties with delivery (proof: Witness [...]).

[Seller] also obtained certain trade information, costs of which equalled DM 8. [Seller] states that it borrowed a bank credit at an interest rate of 13.5 percent which exceeds the claim itself. There is a limitation defense asserted by [Buyers], to which [Seller] submitted a certificate that is referred to herein.

[Seller] requests the court to order [Buyers] to pay DM 21,686.10 plus 13.5% interest as of 11 June 1991, as well as DM 8.

[Buyers] acknowledged a sum amounting to DM 9,853 in the period starting on 21 February 1996, and otherwise requested rejection of the rest of the claim.

In addition to asserting a statute of limitation defense, [Buyers] had stated that they did not receive the goods. However, [Buyers] admitted that they had received goods in 1990 after [Seller] presented the delivery notes signed by [Buyers]. [Buyers] had stated that they had not taken delivery of the goods since Fall 1989 alleging that deliveries thereafter took place too late, therefore, the goods were no longer saleable due to the fact that the clearance sale took place in March 1990. In addition, [Buyers] alleged that they had unsuccessfully requested delivery documents in December 1991 as well, during the dunning procedure initiated by [Seller] at the time.

THE DECISION

The [Seller]'s claim is founded.

REASONS FOR THE DECISION

The dispute must be decided in accordance with Art. 3(2) EGBGB [*], pursuant to provisions of the uniform sales law (CISG).

If a foreign country is involved, the applicable law must be determined in accordance with the conflict of laws provision of Art. 28 EGBGB. In lack of an agreement by the parties, the applicable law shall be that of the country where the party providing characteristic performance resides. In case of a sales contract, this is the [Seller], i.e., Plaintiff.

The fact that [Buyers] procured the goods through Agent [...] is irrelevant. The sales contract was concluded for delivery of goods. In the present case, the goods were to be delivered from Italy. Therefore, the contract was concluded only upon acceptance by [Seller]. Italian law refers to the CISG. Italy has been signatory to the Convention since 1 January 1988. Conditions of application of the CISG are fulfilled in the present case. The dispute is a business dispute, therefore, [Seller] raises a claim for payment of the purchase price upon Art. 53 CISG. [Buyers'] liability follows from Art. 128 HGB [*] because they were personally liable members of the public partnership at that time. In accordance with the so-called personal statute, representation and liability of private persons are governed by domestic law, that is, by HGB [*] and BGB [*] in the present case.

The claim for payment of the purchase price has not lapsed, and [Buyers] cannot raise an objection of non-performance either. The delivery notes evidence that [Seller] performed in time. Therefore, [Buyers]' statement that they did not receive the goods at all is rebutted. Furthermore, [Buyers]' statement that [Seller] delivered unreliably or too late proves to be false.

According to the submitted delivery notes, only the goods included in delivery note No. 04191171 were delivered on 11 April 1990, that is, they were handed over by the carrier with a one-day delay. The CISG, just like the BGB, assumes sales with delivery (Art. 31). The performance period is provided for in Art. 33. [Buyers]' submission that several items of goods were not delivered, delivered unreliably or delivered too late, thus, they could no longer be used for the clearance sale, is not founded. Summer goods were ordered on 9 September 1989 on the condition that they must be delivered in the period between February, March and 10 April. This is exactly what happened. Delivering a small amount of clothing items with a one-day delay did not cause any harm because [Buyers] kept the goods and did not return them, as it would have been required to in case of an absolutely fixed transaction. Thus, this circumstance must be evaluated in accordance with Arts. 49 and 25. [Buyers] could have enforced a claim for damages or their right of avoidance. However, lacking further provisions in the contract, a one-day delivery delay does not qualify as a fundamental breach. Damages are neither claimed nor apparent, and the right of avoidance was not exercised on time as set forth in Art. 49(2) CISG.

Relating to the goods previously delivered, the court sets aside the testimony of Witness (...). [...]

As to limitation of the claim, the court proceeds in accordance with the certificate presented by [Seller]. According to that, the limitation period for claims for payment of the purchase price in case of non-cash sales contracts is ten years. However, it must be noted that the claim has not yet lapsed pursuant to German law either. By issuing the first payment order in December 1991, the four-year limitation period included in Art. 196(2) 1.1. BGB [*] was disrupted and it commenced from the beginning. The current proceedings were initiated well within the period referred to.

[Seller] can claim 10% interest upon Italian law. In this respect, the court refers to judgments of the Provincial Court of Appeal (Oberlandesgericht) of Frankfurt (NJW [*] 94, 1013, 1014). Similarly to the case decided upon by that court, [Seller] did not present the reasons for requesting a higher interest rate.

The decision on costs is based on Art. 92(2) ZPO [*]. The decision on preliminary enforcement relies on Art. 709 ZPO.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Italian Plaintiff is referred to as [[Seller]]; the German Defendant is referred to as [[Buyers]]. Amounts in former German currency (Deutsche Mark) are indicated as [DM].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Code Civil Law]; EGBGB = Einführungsgesetzbuche zum Bürgerlichen Gesetzbuch [German Code on Private International Law]; HGB = Handelsgesetzbuch [German Code on Trade Law]; NJW = Neue Juristische Wochenschrift [German weekly judicial magazine]; OHG = Offene Handelsgesellschaft [general partnership]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Stella Heyken is a law student of the University of Osnabrück, Germany.

*** Andrea Vincze is a Ph.D. candidate at the Department of European Law and Private International Law, University of Miskolc. Hungary, specializing in international business and investment law and international commercial arbitration. She has taught the CISG at the University of Miskolc and at the Pace University School of Law.

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Pace Law School Institute of International Commercial Law - Last updated March 20, 2007
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