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CISG CASE PRESENTATION

Switzerland 10 July 1996 Commercial Court Zürich (Plastic chips case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960710s1.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19960710 (10 July 1996)

JURISDICTION: Switzerland

TRIBUNAL: HG Zürich [HG = Handelsgericht = Commercial Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: HG 940513

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany [plaintiff]

BUYER'S COUNTRY: Switzerland [defendant]

GOODS INVOLVED: Plastic chips


Case abstract

SWITZERLAND: Handelsgericht des Kantons Zürich 10 July 1996

Case law on UNCITRAL texts (CLOUT) abstract no. 193

Reproduced with permission from UNCITRAL

A dispute arose concerning the purchase price for a consignment of printed chips between the plaintiff, a German seller of plastic parts, and a Swiss buyer, one of three defendants. Although the initial purchase price had been agreed upon, the seller, realizing that production would be more costly, notified the buyer that the purchase price would be increased. The buyer ignored the notification and denied any agreement modifying the initial purchase price. The seller sued the buyer requesting payment of the increased purchase price.

The court held that an agreement between the parties had been reached for the initial purchase price. The seller's notification to the buyer of the increase in the purchase price was, in the court's view, an offer to modify the original contract to which the buyer had not expressed any explicit consent. Mere silence or inactivity does not amount to acceptance (article 18(1)(2) CISG), unless other conduct of the offeree exists indicating consent or the offeree performs an act (articles 18(1) and 18(3) CISG). As the buyer had not expressed an implicit consent, the court found, therefore, that the modification of the purchase price had not been accepted and that the initial purchase price agreed upon was still valid.

As regards interest, the court determined the interest rate under the law designated by the relevant choice-of-law rule (articles 74 and 78 CISG). Accordingly, the court applied the German law at the seller's place of business (Section 352(1) of the Handelsgesetzbuch). Inasmuch as the seller had to obtain a loan owing to the buyer's refusal to pay the purchase price, the seller was awarded the higher interest rate of 9 percent, which had to be paid on the loan.

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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 4 ; 18(1) ; 19 ; 74 ; 78 [Also cited: Articles 3 ; 18(2) and 18(3) ] [Also relevant: Article 23 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): assumption of liability];

18A3 [Acceptance (time and manner): silence or inactivity insufficient];

19C [Acceptance with modifications that are material: material modification of offer if related to price of goods];

74A [Damages (general rules for measuring): loss suffered as consequence of breach (interest as element of loss)];

78B [Interest on delay in receiving price or any other sum in arrears: rate of interest (applicable domestic law)]

Descriptors: Scope of Convention ; Acceptance of offer ; Interest ; Damages ; Interest as element of damages

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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=381&step=Abstract>

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/ Revue suisse de droit international et de droit européen (1997) 131-132

CITATIONS TO TEXT OF DECISION

Original language (German): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=381&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 175 [Art. 18(1) (silence and duty to reply)], 471 [Art. 78]; Liu Chengwei, Recovery of interest (November 2003) n.287; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 29 para. 2 Art. 78 para. 27 Art. 74 para. 16; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 152

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Handelsgericht [Commercial Court] of the Canton Zürich

10 July 1996 [HG 940513]

Translation [*] by Kirstin Stadtländer [**]

[...]

[RULING]

The relief sought against the Defendant 1 [Buyer]:

Jointly with the two other Defendants, Defendant 1 [Buyer] is to be ordered to pay Plaintiff [Seller] the amount of Deutsche Mark [DM] 46,651.28 (respectively at the market rate of 84.75 Fr. 39,536.95) plus interest at a rate of 9 % since 5 August 1994, as well as the costs of the enforced collection No. 681 of the Office of Enforced Collection Oberestringen from 5 August 1994 in the amount of Fr. 102.00.

CONSIDERATIONS

The court considers:

I.   1. After the Commercial Court was declared by decision of the II. Civil Chamber of the High Court of the Canton Zürich from 16 September 1994 as the jointly competent court for claims against Defendants 1 and 2 as well as Defendant 3 (act. 3), Plaintiff [Seller] submitted requests and a memorandum of Plaintiff [Seller] against all Defendants on 28 September 1994 (act. 1, 4/1, 4/2, 4/3).

      2. Plaintiff [Seller]'s claim against Defendant 3 was granted legally binding by decision of 24 January 1995 (act. 16), the claim against Defendant 2 by decision of 27 April 1995 (act. 24). Thus, at the present, only the claim against Defendant 1 [Buyer] has to be considered.

      3. By submission of 5 December 1994, Defendant 1 [Buyer] handed in its response with the demand that the proceedings should be restricted to the question of answerability as the proper party and that Plaintiff [Seller]'s claim against it be rejected for lack of answerability of the proper party. In the alternative, Defendant 1 [Buyer] requests the order of a sufficient extension of delay for the completion of its response in case the procedural demand is rejected or the preparatory question of the answerability of the proper party is answered in the affirmative (act. 10). By order of 28 December 1994 -- due to the consideration that the proceedings could not be simplified by the demanded restriction - Defendant 1 [Buyer] was given an extension of delay for the completion of its response (record p. 6). After the receipt of the completed response of 30 January 1995 by which Defendant 1 [Buyer] demands in the alternative that the claim be rejected as far as an amount of more than Fr. 30,062.50 was claimed (act. 19), a hearing in composition proceedings took place on 9 May 1995. However, these proceedings did not lead to an agreement (record p. 10 et seq.). By submission of 4 September 1995, Plaintiff [Seller] handed in its replication in which it restricted its claim as mentioned above against Defendant 1 [Buyer]. In addition Plaintiff [Seller] points to the fact that there has been a typing mistake in the original claim: the amount of the claim that had been transferred from DM into Swiss Fr. must be Fr. 39,536.95 instead of Fr. 30,536.95. Moreover, the claim for interest was changed with regard to the lapse of delay (act. 30 p. 2). The rejoinder is dated 13 November 1995 (act. 37).

II. 1. First of all, is to be determined whether and in which form a contract has been concluded between the parties to this dispute. Plaintiff [Seller] asserts that Defendant 1 [Buyer] had ordered 61,900 chips and a price of DM 46,651.28 was agreed (act. 1, p.3). Contrary to that, Defendant 1 [Buyer] asserts that on 10 December 1993 it had ordered 60,000 chips at a price of DM 35,472.00 from Plaintiff [Seller] (act. 10 p.4).

      2. a) According to Plaintiff [Seller]'s assertion, Defendant 1 [Buyer] thought that the chips were to be printed on both sides with one color each (act. 30 p.2). On 21 December 1993, Plaintiff [Seller] confirmed the 10 December 1993 order of Defendant 1 [Buyer] and stated printing cost for "both sides blue" and "both sides yellow" from which it can be concluded that Plaintiff [Seller] thought that on each side only one print was to be made (act. 30, p. 2 f.). In the confirmation of the order, a compensation for the conversion was not provided; however, Defendant 1 [Buyer] must have known that this manual work was very complicated and that the costs of a printing on both sides, which would have made the conversion unnecessary, were less high than the costs for the manual work.

           b) On 11 February 1994, the confirmation of the order was changed: the printing costs were doubled, so that the fee was then DM 46,602.16. Plaintiff [Seller]'s employee in charge had phoned Defendant 1 [Buyer] before and informed it that the planned conversion of the chips was too complicated and that it was cheaper if the already fixed chips and the frame were printed in different colors in two separate printing procedures. Defendant 1 [Buyer] did not assert anything against this. On 15 February 1994, Plaintiff [Seller] issued an account for Defendant 1 [Buyer] in the amount of more than DM 46,651.28 (act. 30 p.3).

           c) Concerning the number of chips for the amount requested by Defendant 1 [Buyer], Plaintiff [Seller] elaborates that it is not possible to exactly stop the printing machine after a certain number of printing procedures. It is therefore usual in the business that the customer must accept over -- or under -- performance of 10 %. Defendant 1 [Buyer] is thus obliged to pay for all of the chips that were put into account (act. 30 p. 8f.). Defendant 1 [Buyer] was informed by telephone by an employee of Plaintiff [Seller] that the conversion was not acceptable due to cost reasons and Defendant 1 [Buyer] was informed about a higher price. Defendant 1 [Buyer] did not protest against this and did further receive the changed confirmation of order. Defendant 1 [Buyer] therefore agreed to the raising of the fee and did agree with Plaintiff [Seller] in that sense (act. 30 p. 9).

       3. a) Contrary to this, Defendant 1 [Buyer] alleges that it had only ordered 60,000 chips instead of 61,900 and it had wanted the printings in a way that only 120,000 printing procedures would have been necessary. The ordered goods were plastic-chips in the size of one or two Fr. coins. These chips were used for the opening of chains on shopping or luggage carriages; the name and the logo of a company of articles consumed for stimulation and enjoyment was printed on the chips for the purpose of advertisement. The chips and prints are designed in the colors of the company; the print was made in the respective other color. For a better effect of the advertisment, after the printing a yellow chip was to be put on a blue frame or the other way around (act. 19 p. 4).

           b) It was agreed to print the chips in a frame of the same color in order to exchange chips and frames afterwards which makes it possible to print one side of both in one procedure. As it seems, Plaintiff [Seller] did not apply this printing method, for which Defendant 1 [Buyer] is not liable. Plaintiff [Seller]'s invoice must therefore be reduced by this amount (act. 19 p. 5f.). Plaintiff [Seller] also cannot put into account more chips than had been ordered; an order that is higher by 1,900 pieces has never been agreed (act. 19 p. 6).

           c) In its rejoinder, Defendant 1 [Buyer] insists that chips and frames had to be in different colors and that 120,000 prints were to be charged (act. 37 p. 3 f.). It was not true that Plaintiff [Seller] informed Defendant 1 [Buyer] and that it agreed that due to the more complicated production the price had to be raised. Plaintiff [Seller] has to bear the additional costs for the cost intensive conversion of the chips on frames in different color (act. 37 p. 4). The changed confirmation of order is legally irrelevant, as the change of a contract is only possible unanimously; even if a phone call had really taken place, and Defendant 1 [Buyer] did not protest against a changed method of production, Plaintiff [Seller] cannot conclude anything from this (act. 37 p. 4). By writing of 10 March 1995, Defendant 1 [Buyer] stated that it did not want to accept the doubled calculation of the printing costs of DM 9,888.00 (act. 37 p. 5).

           d) Concerning the contested number of the chips, Defendant 1 [Buyer] further elaborates that the printing of the chips was not the main task of Plaintiff [Seller], but their production (act. 37 p. 10). The procedure of the production could have been interrupted and Plaintiff [Seller] did not have to produce more than 60,000 pieces of chips. Also printing machines -- just as other machines -- do have a meter; if more than 60,000 pieces had not been produced, no further prints would have been necessary. The general conditions of Plaintiff [Seller] concerning the delivery and payment did not become part of the contract. Defendant 1 [Buyer] had ordered 60,000 chips with frames and Plaintiff [Seller] accepted this order so that a contract was concluded. General conditions of delivery and payment were not talked about as all the agreements had been made. Defendant 1 [Buyer] never agreed to Plaintiff [Seller]'s conditions (act. 37, p. 10). A higher account for the conversion is not justified, as a fixed price was agreed (act. 37 p. 11). Defendant 1 [Buyer] did not silently accept the raising of the price (act. 37 p. 11).

           e) The other submissions are to be commented as follows, as far as necessary.

III. 1. a) Unanimously, the parties call the price that has to be paid " labor costs" or "working price" (act. 1p. 3; act. 19, p. 7). In general, this cannot be rebutted: Plaintiff [Seller] did not only deliver the chips but also produced them, printed them, made samples of the colors and the prints and put the chips on frames according to Defendant 1 [Buyer]'s instructions (act. 11/1). Plaintiff [Seller] therefore produced a certain physical result of the work, an added value on payment basis, which fits the expression and the character of a contract for services (see Palandt/Putzo, Civil Code, 54 ed., Munich 1995, No. 1 Introduction before paragraph 631); Gauch, The Contract for Services, 3d ed., Zurich, 1985, No. 13ff.).

           b) In the present case, an international dispute has to be considered, so that the first question is the applicable law. The parties do not state anything concerning this in their memoranda; especially no choice of law of the parties is asserted. Therefore, the legal relation is to be considered based on to the governing law which is to be determined by the objective point of reference. Defendant 1 [Buyer] has its seat in Switzerland, Plaintiff [Seller] in Germany. Switzerland as well as Germany became parties to the Vienna Convention on the International Sale of Goods (CISG) (AS 1991, p. 337 et seq.); this Convention must be applied to the present dispute (Art. 1(1)(a) CISG), as contracts concerning the delivery of produced goods must be put in the same category as sales contracts (Art. 3(1) CISG in connection with Art. 118(1) IPRG [*]). Besides, it may be added that the parties do not put forwards any hints that the application of the Convention was excluded for the present dispute in the sense of Art. 3(2) CISG.

      2. a) It is not contested that Defendant 1 [Buyer] ordered chips from Plaintiff [Seller] on 10 December 1993, which was confirmed to Defendant 1 [Buyer] by Plaintiff [Seller] on 21 December 1993 (act. 30 p. 2; act. 37, p. 3). The confirmation expressly refers to the order, contains the same amounts (four times 15,000 pieces) and states the same fixed prices (0.49 DM each piece); furthermore, Defendant 1 [Buyer] was confirmed -- as it had required -- that one print on each side would be made (act 11/2). However, costs for the conversion are not included (act. 30 p. 3). But Plaintiff [Seller] confirmed to deliver the chips as follows -- mainly as Defendant 1 [Buyer] required --: "Frame in blue, chip in yellow; respectively "Frame in yellow, chip in blue" (act. 11/2). By this, Plaintiff [Seller] confirmed what was ordered and what was to be delivered; Plaintiff [Seller] further stated, as mentioned, the amount, the price and the goods to be delivered. Therefore, there are corresponding declarations of intention concerning the essential parts of the contract. The confirmation of order of 21 December 1993 constitutes in that sense an acceptance to the offer of Defendant 1 [Buyer] under Art. 18(1) CISG. It is not only Defendant 1 [Buyer] who asserts that a contract was concluded on this basis (act. 19 p. 4; act. 37 p. 3 and 4), refers to that, but also Plaintiff [Seller] relies on the fact that it confirmed Defendant 1 [Buyer]'s order on 21 December 1993 (act. 30 p. 2). Plaintiff [Seller] regards the following confirmation as a raising of the working price (act. 30 p. 10) and counsel for Plaintiff [Seller] declared at the preparatory proceedings on 9 May 1995, that the original contract was changed or extended by the second confirmation of order (record p. 16).

           b) It is not contested that Plaintiff [Seller] sent Defendant 1 [Buyer] a changed confirmation of order on 11 February 1994 (act. 30, p. 3; act. 37 p. 4, record p. 14). But the parties put a different significance to it: while Plaintiff [Seller] - after it first relied on the fact that it had to print twice, but later noticed that it had to make four prints (record p. 16) - states that this change became part of the contract, as Defendant 1 [Buyer] did not protest against it (act. 30 p. 3 and 9), Defendant 1 [Buyer] considers the changed confirmation of order to be irrelevant, as it did not agree to a raising of the price (act. 37 p. 4). An agreeing declaration of Defendant 1 [Buyer] is not alleged.

           c) Defendant 1 [Buyer] requested by the order: "The yellow chips must be put on a blue frame, respectively the blue chips must be put on a yellow frame. Thus, chips and frames are of different colors, the printing colors are then respectively the opposite." (act. 11/1). Also Plaintiff [Seller] relied on a blue printing, and clearly confirmed what Defendant 1 [Buyer] wanted: "Frame blue, chip in yellow", respectively "Frame in yellow, chip in blue" (act. 11/2). Costs for the conversion have not been included in the confirmation of order of 21 December 1993. Whether the intention of Plaintiff [Seller] (act. 30 p. 9; record p. 16) to print the chips with twice as many printing procedures, which was only expressed later, become clear by the telephone call or by the changed confirmation of order, is irrelevant. Decisive is only if the silence -- or any other implicit behavior -- of Defendant 1 [Buyer] to the changed confirmation of order constitutes an acceptance to a change of the contract.

      3. a) According to Art. 18(1) CISG silence or inaction in itself does not constitute an acceptance (the same is true under German law in the application of paragraph 346 of the Commercial Code; see Baumbach/Hopt, Commercial Code, 29 ed., Munich 1995, No. 16 to paragraph 346). An offer changed by the offeree can be accepted by silence if the conditions of the offer are not materially altered; in such cases it is expected from the offeror that it notifies the lack of consent immediately, if he does not do so, the changes in the acceptance become part of the contract (Art. 19(2) CISG). In the present case, Plaintiff [Seller] changed the working price by putting into account printing costs that were twice as high as envisaged; but as changes concerning the price are considered to be material alterations according to Art. 19(3) CISG (v. Caemmerer/Schlechtriem, Commentary to the CISG, 2d ed., Munich, 1995, No. 8 Art. 19), Art. 19(2) CISG is not applicable in the present case. Therefore, Plaintiff [Seller] cannot rely on the assumption that Defendant 1 [Buyer] had accepted the change of the contract.

           b) In addition, it may be mentioned that the result would have been the same if German law had been applied. German law distiguishes the confirmation of an order and the writing of a confirmation. The difference is that the confirmation of an order concludes the pre-contractual negotiations but, on the other hand, the writing of a confirmation fixes the content of a concluded contract (Baumbach/Hopt, No. 16 paragraph 346, see also Gauch/Schluep. OR [*] General Part, I, 6 ed., Zürich 1995, No. 1159). Concerning the former, silence cannot be understood as acceptance. On the contrary, silence to a writing of confirmation must be considered as acceptance. Plaintiff [Seller] asserts that Plaintiff [Seller]'s employee in charge had informed Defendant 1 [Buyer] that it would be cheaper to print the already fixed chips and frames in two printing procedures, against which Defendant 1 [Buyer] had no objections (act. 30 p. 3). However, providing information does not constitute a contractual agreement and it is not asserted that Defendant accepted a contract in the sense of Plaintiff [Seller]'s changed contract. A contract in the sense of Plaintiff [Seller]'s opinion, therefore does not exist. Thus, the writing of Plaintiff [Seller] constitutes a confirmation of order, to which an acceptance is necessary, which cannot be made by silence.

           c) In the present case, it must still be determined whether there is an acceptance of Plaintiff [Seller]'s offer by other implicit behavior according to Art. 18(1) CISG or whether there is an expression of agreement by implicit action of Defendant 1 [Buyer] in the sense of Art. 18(3) CISG. But such behavior requires that the acceptance is expressed; one example of such an express behavior can be seen in the acceptance of goods or the direct delivery to a third party (v. Caemmerer/Schlechtriem, No. 7 and 18, Art. 18). The offer is a unilateral declaration of intention with the requirement of receipt. Subject and content of a contract must be that clearly determined or determineable that the acceptance is possible by a simple "yes". The offer can also be undertaken by an implicit action (Palandt/Heinrichs, No. 1 paragraph 145). The declaration of will is the declaration of an intention to create legal relations. The inner intention must be expressed in a way that it is understandable for others (Brox, General Part of the Civil Code, 19 ed. Cologne, Berlin, Bonn, Munich, 1995, No. 81). An implicit declaration of intention is given, if the acting party mainly wants to reach a different aim by its behavior, but indirectly expresses its intention to create legal relations. From this behavior, a certain intention to create legal relations can be concluded (Brox, No. 88). Decisive is whether the intention must be concluded from the behavior. There must be sufficient actual hints for the interpretation of the circumstances as an expression of a certain intention to create legal relations (Kramer/Schmidlin, Bern Commentary VI/1/1, 1986, no. 10, Art. 1 OR). An intention to create legal relations can only be expressed implicitly, if according to the circumstances there is no adequate reason to doubt the lack of this intention. The behavior must be clear and the intention to create legal relations must be clearly expressed. For the interpretation of the behavior it is decisive how the other contracting party could and must have understood the behavior according to good faith and the custom (Erman/Brox, Commentary of the Civil Code, I, 9 ed., Münster, 1993, no. 7 before paragraph 116).

           d) In the present case, the goods were -- unopposedly -- given to Defendant 3 respectively to its general partner Defendant 2 and released for resale to T AG (act. 1 p. 4, 5 f., 8, 9 f.; act. 10 p. 4, 5, 6; act. 19 p. 7; act. 30 p. 4 and 8). However, it cannot be concluded from that, that one of the Defendants thereby implicitly agreed to the changed agreement as to the price. In the general business practice, it is usual and generally known that goods can be ordered through a third party. Usually by this, also the price agreements and the conditions of delivery are agreed bindingly, so that it is not self-evident that a following change of the price agreement for the work to be delivered can be burdened on the final buyer. In the present case, there are no indications that the parties wanted the price for the delivered chips to be determined objectively due to the circumstances (with reference to the changed confirmation of order). A business custom or a custom established between the parties is not asserted, either. At this point it can be left open, which effects can be concluded from the writing of Defendant 1 [Buyer] of 10 March 1994 (act. 31/1): Defendant 1 [Buyer] could rely on the accounting of the goods on the basis of the formerly agreed price, as there was no acceptance of the changed confirmation of order. Consequently, it must be stated that Defendant 1 [Buyer] did not accept the changed price resulting out of the raised costs for the double-printing.

      4. It must further be examined, whether the delivery of the higher amount of chips is contractually justified. In this context, Plaintiff [Seller] refers to No. 7.1 of its confirmation of order (act. 31/2). This clause does not impede the conclusion of the contract in the sense that the amount was not sufficiently determined under Art. 18(2) CISG, as No. 7.1 of the general conditions of payment and delivery only declared a reservation, due to which Plaintiff [Seller] was allowed to diverge about 10 % from the ordered amount. It remains uncontested that Plaintiff [Seller] delivered 61,900 chips (instead of 60,000 pieces as ordered) (act. 1 p. 3; act. 19 p. 4 and 6). As mentioned above, the goods were given to Defendant 3 respectively to its general partner Defendant 2 and were -- unopposedly -- released for resale to T AG (act. 1 p. 4, 5 f., 8, 9 f. ; act. 10 p. 4, 5, 6; act. 19 p. 7; act. 30 p. 4 and 8). Contrary to the situation concerning the later change of the price agreement by Plaintiff [Seller], the direct delivery to a third party has the implicit effect in the sense of Art. 18(3) CISG concerning the ordered amount. By passing on the goods to a customer without changing the amount, the orderer accepts the delivery as conforming with the contract and is obliged to pay the producer for the increased amount of the delivered goods. As far as the protest of Defendant 1 [Buyer] in its writing of 10 March 1994 (act. 31/1) does not only refer to the printing costs, but also to the actually amount of chips that was delivered to Defendant 2 and 3, this protest was against the contractual duty of loyality. If Defendant 1 [Buyer] had not agreed to the amount of the delivery, it would have been obliged to request Defendant 2 and 3 to refuse towards Plaintiff [Seller] to accept the amount of chips that exceeded the ordered amount. This is not asserted. Consequently, it must be assumed that Defendant implicitly accepted the excess amount. In addition, this excess amount still kept within the amount of 10 % of diverging tolerance.

IV. 1. It is uncontested that Defendants 2 and 3 entered into a duty towards Plaintiff [Seller] concerning the obligation of Defendant 1 [Buyer]. In this context, the question is, whether Defendant 1 [Buyer] was released from its obligation or if it was jointly liable for the obligations out of the contract for services together with the other debtors.

      2. a) Also concerning the assumption of liabilities, the applicable law must be determined. Both parties argue on the basis of Swiss law (act. 30 p. 5 et seq.; act. 37 p. 7). But this is not decisive as none of the parties asserts a choice of law agreement. However, this raises the question whether the unanimous reference to Swiss law in the parties' submissions constitutes a choice of law to be concluded from the circumstances according to Art. 116(2) IPRG [*]. This must be denied, not only because the stated provision requires an unambiguous choice of law, but also because the reference in the submissions does not constitute a statement to the facts, but concerns a question of law. The determination of the connecting factor must be undertaken ex officio and the reference must not be made dependent on a request of the parties (Schnyder, The new IPRG, 2d ed., Zurich, 1990, p. 32).

           b) The IPRG does not deal with the transfer of obligations. Among scholars an accessory referral is preferred, comparable with the position of the debtor in case of an assignment: in general, all questions in the relationship between the creditor and the original debtor must be answered according to the law that governed the original obligation, except for the case in which the original debtor took part in the negotiation of the assumption of liability also in the external relation, for example, by agreeing to a choice of law agreement between the creditor and the party that assumes the liability or because a three-party-agreement is concluded. Therefore, the governing law of the obligation also sets forth how the assumption of liabilities effects the validity and the content of the obligation (Keller/Girsberger, IPRG-Commentary, Zürich 1993, No. 18 f., after Art. 146).

           c) In the present case, it is not clear whether Defendant 1 [Buyer] took part in the negotiation of the assumption of liabilities also in the external relations, which could justify an exception of the general principle of accessory referral. Concerning this, Plaintiff [Seller] puts forward that Defendant 1 [Buyer] took part in the negotiations between the parties (which means Defendants 2 and 3) and knew which securities Plaintiff [Seller] had, respectively that these were of no value; therefore it cannot blame Plaintiff [Seller] for careless action (act. 30 p. 10). These elaborations show that Defendant 1 [Buyer] may have taken part in the negotiations about the assumption of liabilities (which is contested (act. 37 p. 12)). But this assertion does not lead to any results concerning the question of the applicable law. Therefore, a deviation from the objective determination of the applicable law cannot be justified and there are no indications of any kind for an intention of a choice of law agreement visible.

      3. The basic agreement is subject to the CISG. Nevertheless, German law must be applied to the assumption of liabilities, as the CISG does not provide any regulations concerning an assumption of liabilities. It can be concluded from this that a reference must be found that does not lead to a referral to the CISG (see Art. 7(2) CISG). The objective connecting factor according to Art. 117(2) and (3)(c) IPRG [*] (which is outside the scope of a referral to the CISG) leads to German law as the applicable law. The question whether Defendant 1 [Buyer] was released from its contractual obligations must therefore be answered according to German law.

      4. The provision regulating the assumption of liabilities with full discharge of the original debtor is section 414 et seq. Civil Code. It must be differentiated between this and a cumulative assumption of a debt.; concerning the latter there are no axpress provisions in the Civil Code (Soergel/Zeiss, Civil Code, 11th ed., Stuttgart/Berlin/Cologne/Mainz 1986, No. 5 before section 414). The rules concerning the joint obligation must be applied (section 421 et seq. Civil Code; Palandt/Heinrichs, No. 5 before section 414; Staudinger/Kaduk, Commentary of the Civil Code, volume 2/1, 10th/11th ed. Berlin 1978, No. 37, before section 414). The same result would be achieved by application of Swiss law (see Honsell/Tschäni, Law of Obligations I, Basel/Frankfurt a.M. 1992, No. 1 Art. 176).

      5. a) Other than in Switzerland (Art. 176 OR [*]), there is a distinction between two different assumptions of a debt with full discharge of the original debtor in Germany: either a contract is concluded between the one assuming the debt and the creditor of the original contract (section 414 Civil Code), or the creditor accepts a contract concerning the assumption of the debt concluded between the original debtor and the person assuming the debt. (section 415 Civil Code). As Defendant I [Buyer] does not assert an internal assumption of the debt, Section 415 Civil Code cannot be applied.

           b) A contract of assumption of debt in the sense of Section 414 Civil Code can be concluded without any requirements as to the form and even by implicit behavior (which is the same under Swiss law). It is necessary that there is a contractual agreement between the creditor and the person assuming the debt by which the assuming party is obliged to step into the original debtor's position with all the duties of the original contract in a way that the original debtor is released of its obligations (Staudinger/Kaduk, No. 18 f. section 414). Just as under Swiss law (see Honsell/Tschäni, No. 8 Art. 176), the agreement of the assumption of a debt is concluded by an offer and an acceptance, so that it can be referred to Section 145 et seq. Civil Code).

      6. a) Defendant 1 [Buyer] asserts that Defendants 2 and 3 had implicitly offered an assumption of the debt with full discharge of the original debtor to Plaintiff [Seller] by offering securities. Plaintiff [Seller] had accepted this offer and thereby has implicitly agreed to the assumption of the debt with full discharge of the original debtor (act. 10 p. 7). Plaintiff [Seller] does not contest the assumption of the debt, but is of the opinion that it is of a cumulative nature (act. 30 p. 6).

           b) As mentioned before, an implicit agreement of an assumption of a debt with full discharge of the original debtor is admissible; however, a clear declaration of the intention to release the original debtor of its obligations is necessary (Erman/Westermann, No. 2 section 415 Civil Code with reference to BGH NJW 82, 678 f.). Actually, the question is whether the parties (and not only Plaintiff [Seller]) did declare that Defendant 1 [Buyer] should be released of its obligations resulting from the contract of services. None of the parties assert that Plaintiff [Seller] itself offered to release Defendant 1 [Buyer] of its obligations and that Defendants 2 and 3 accepted this; therefore, this point of view cannot be taken into consideration when examining the mutual contractual intention.

           c) Defendants' action consists of the offering of securities. On the one hand, Plaintiff [Seller] was - uncontestedly -- offered the hypothecation by deposit of an original certificate of title to a motor (act. 1 p. 3), on the other hand, it was assigned a claim against the final buyer of the goods (act. 1 p. 5). By offering the securities, Plaintiff [Seller] was implicitly offered an assumption of the debt which it accepted. It is therefore out of question that an obligation was agreed. Still, the question is whether the character of transfer of the assumption of a debt is effected and a release of Defendant 1 [Buyer] of its debt was agreed or if only a cumulative assumption was intended which is as well possible. It would have been necessary that it was obvious for Plaintiff [Seller] to conclude from the offer of the assumption of the debt that the assuming parties (Defendants 2 and 3) would not assume the debt cumulative and be liable jointly with the debtor (Defendant 1 [Buyer]) but would be liable instead of Defendant 1 [Buyer].

           d) An intention clearly showing the will for one of the possibilities is not obvious, as in the present case, both possibilities could be argued and the offer of securities does not constitute an unambiguous implicit action for one of the possibilities (concerning the principles of implicit behavior see above No. III. 3. c). However, this would have been necessary in order to achieve an agreement of an assumption of a debt with full discharge of the original debtor only by the acceptance of the offer of securities. According to the principle of good faith, there was no need for Plaintiff [Seller] to interpret the offer of securities as an offer of an assumption of a debt with full discharge of the original debtor. However, in doubtful cases, an additional assumption of a debt must be assumed (Palandt/Heinrichs, No. 3 before section 414; Staudinger/Kaduk, No. 9 section 414; Soergel/Zeiss, No. 14 before section 414), which is also the case in the present situation -- especially evaluating the interests of Plaintiff [Seller] -- and which also conforms with the Swiss scholars' opinion concerning Art. 176 OR [*] (Spirig, No. 47 Art. 176).

To sum up, it must be stated that the parties did not agree on an assumption of a debt with full discharge of the original debtor and that Defendant 1 [Buyer] is within the scope of the additional assumption of the debt according to Section 421 Civil Code obliged to fulfil the complete obligation, which was agreed when concluding the contract of services.

V.  1. Still, a tort claim, that may be raised besides a contractual claim remains to be examined. Plaintiff [Seller] asserts that Defendant 1 [Buyer] -- although already knowing its insolvency at the time it made the order -- made Plaintiff [Seller] produce goods which it could not use otherwise for lack of taking over (act. 30 p. 10). Defendant 1 [Buyer] contests this (act. 37 p. 12).

      2. According to Art. 133(2) IPRG [*], tort claims are subject to the law of the country in which the tort was committed if no choice of law was agreed; if the success does not take place in that country, the law of the country where the success took place is to be applied, if the tortfeasor could expect this. The success took place in Germany. In application of Art. 133 82) IPRG, German law is applicable to the tort claim. Section 823(1) Civil Code must be applied.

      3. Just the fact that a party concludes a contract although it already knows about its insolvency does not constitute a tort. It is in this situation still possible that there is a justified hope that either the creditor can be paid with the profits of the resale of the goods or that a third party can pay the debt. The assertion of Plaintiff [Seller] is therefore not sufficient to give grounds for a tort claim.

VI. 1. As a result it can be stated that Defendant 1 [Buyer] is obliged to pay Plaintiff [Seller] the ordered chips in the amount of DM 35,650.00 as well as the excess delivery of 1,900 chips in the amount of DM 1,128.90 as well as the costs of the request for payment in the amount of Fr. 102.00. As far as the claimed amount exceeds this, the claim must be rejected.

      2. Plaintiff [Seller] changed its claim for interest in its replication and claims interest on the main claim at a rate of 9 % since 5 August 1994 (act. 30 p.2). According to Art. 78 CISG, the creditor is entitled to interest without connection to a claim of compensation under Art. 74 CISG if the other party fails to pay the price or another due sum. Art. 78 CISG does not set forth the amount of interest. The rate of interest must therefore be determined according to the domestic law. This must be determined according to the rules of the law of conflicts of the forum. According to Art. 3(1) of the Hague Convention of 1955, a sales contract is subject to the law of the country in which the seller has its residence (Art. 118(1) IPRG [*]). The seller is seated in Germany. Under Section 352(1) of the Commercial Code the legal rate in case of delay of payment in commercial contracts is 5 %. However, the legal rate of interest for delay of payment does not exclude the compensation for an actual higher damage according to the CISG. This results from the fact that in Art. 78 CISG it is expressly stipulated that a claim for interest is independent of a claim for compensation under Art. 74 CISG (v. Caemmerer/Schlechtriem, No. 34, Art. 78). Damages must be compensated if the seller is forced to take a bank credit at a higher rate of interest (v. Caemmerer/Schlechtriem, No. 21 Art. 74), which Plaintiff [Seller] does not only assert (act. 30 p. 11) but also proves (act.34). According to this, the claim for interest by Plaintiff [Seller] is stated from the service of the order of payment (9 August 1994).

      3. The costs of the proceedings are to be distributed with regard to the result of the proceedings (Section 64(2) Code of Civil Procedure) and Defendant 1 [Buyer] is obliged to pay Plaintiff [Seller] a reduced compensation for the proceedings (Section 68 f. Code of Civil Procedure).

Therefore the court rules:

Defendant 1 [Buyer] is ordered to pay Plaintiff [Seller] jointly with Defendants 2 and 3 the amount of DM 36,778.90 plus interest at a rate of 9 % since 9 August 1994. As to the amount of the claim in excess of that, the claim is rejected.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as Plaintiff [Seller] and Defendant 1 of Switzerland is referred to as Defendant 1 [Buyer].

Translator's note on abbreviations: IPRG = Gesetz über das Internationale Privatrecht [Swiss Code on Private International law]; OR = Obligationenrecht [Swiss Code of Obligations].

** Kirstin Stadtländer is a trainee lawyer at the Higher Regional Court of Düsseldorf. She studied law at Humboldt University Berlin and was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 2001/02 and a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.

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