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CISG CASE PRESENTATION

Germany 2 August 1996 District Court Bielefeld (Pig case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960802g1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISIONS: 19960802 (2 August 1996)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 12 O 120/95

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Italy (defendant)

GOODS INVOLVED: Pigs


Case abstract

GERMANY: Landgericht Bielefeld 2 August 1996

Case law on UNCITRAL texts (CLOUT) abstract no. 376

Reproduced with permission of UNCITRAL

A German seller, the plaintiff, and an Italian buyer, the defendant, held long-standing business relations in respect of the delivery of living pigs. The seller negotiated with the buyer who was accompanied by another Italian cattle-dealer, X. The parties agreed on the delivery of pigs and X paid cash and by cheque. When the cheques had been dishonoured the seller sued the buyer for the outstanding purchase price and the costs of the dishonoured cheques. The buyer argued that X had been the one to be bound by this agreement.

The claim was successful. The Court found that the seller had proved the buyer’s willingness to be bound during the negotiation and that accordingly it had to pay the outstanding purchase price (article 62 CISG). Moreover, the buyer had to bear the costs for the dishonoured cheques under article 61 CISG.

The Court granted interest pursuant to article 78 CISG and established the rate of interest under German law.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 62 ; 74 ; 78 [Also cited: Article 61 ]

Classification of issues using UNCITRAL classification code numbers:

62A [Seller may compel performance of buyer's obligation to pay the price];

74A [General rules for measuring damages (loss suffered as consequence of breach): includes costs for dishonored checks];

78B [Rate of interest determined based on rules of private international law]

Descriptors: Specific performance ; Price ; Damages ; 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

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): Click here for the original German text of this case

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: 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]; CISG-AC advisory opinion on Calculation of Damages under CISG Article 74 [Spring 2006] n.99 (related cases cited in addendum to opinion)

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Case text (English translation)

Queen Mary Case Translation Programme

Landgericht Bielefeld 2 August 1996

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

Translation edited by Camilla Baasch Andersen [***]

FACTS OF THE CASE

Both the [buyer] and the [seller] deal with livestock. The [seller] is a trader registered in the commercial register of Hille bei Minden [Germany]; the [buyer]'s place of business is in Porto Recanati [Italy].

In October and November 1992, the parties visited several pig-fattening farms where the [seller] would acquire pigs and immediately resell them to the [buyer], who then exported the pigs to Italy. As the [buyer] does not speak the German language, [buyer]'s nephew accompanied it to these transactions, acting as interpreter. The [buyer] selected the pigs to be bought, negotiated the purchase price with the [seller] and had the animals loaded and transported. [Buyer] initially paid cash, later by checks, which were always cashed by the bank.

The [seller] submits that on their meeting of 9 November 1992 the [buyer] was accompanied by - in addition to its interpreter - two other Italians, one of whom it introduced as a fellow livestock trader with whom it maintained business relations. After the [buyer] had bought two batches of live pigs in Derenburg [Germany] for DM [Deutsche Mark] 45,796.00 and DM 44,915.00, it bought five batches at the pig-fattening farm in Zilly [Germany] at the agreed prices of DM 44,358.40, DM 48,580.80, DM 47,745.60, DM 47,003.20 and DM 41,713.60. [Buyer] then had the pigs loaded and transported and only afterwards declared, during the completion of their business, that this time the [buyer's companion] would pay the price. Despite the [seller]'s initial opposition, the [buyer's companion] paid DM 48,700.00 in cash and issued four checks over the total amount of DM 180,683.00. The [seller] only accepted these after the [buyer] declared in Italian - translated into German by her interpreter and emphasized with intense gestures on its part - that it would continue to guarantee the payment of the purchase price.

The checks given by the [buyer's companion] bounced when the [seller] attempted to cash them at its bank. Instead of receiving the purchase price, it was charged fees and costs for presenting bad checks in the total amount of DM 698.99.

The [seller] requests relief as granted by the Court. The [buyer] requests the Court to dismiss the claim.

The [buyer] confirms that it repeatedly bought pigs from the [seller], including two batches on 9 November 1992, which it had paid for. According to [buyer], the five batches of pigs had been the subject of negotiations between [buyer's companion] and the [seller]. [Buyer] alleges that it itself had been involved neither in the negotiations nor in the following formation of contract, and had accordingly not made any promises regarding the payment.

With respect to the further submissions by the parties, the Court refers to their memoranda.

REASONING OF THE COURT

[Seller]'s claim is justified. The [seller] is entitled to payment of the agreed purchase price in the total amount of DM 180,701.60. It has proven to the Court that the contracts were formed between the [buyer] and itself.

Independent witnesses X. and Y., who are not directly involved in the [seller]'s business, confirmed its submission. The [buyer] had bought the batches of live pig selected by [buyer], loaded them onto trucks and had them transported before declaring that "the other Italian livestock trader would pay" (witness X.), "for reasons of internal organization" (witness Y.). The [seller] had initially objected. After the [buyer] had gesticulated, repeatedly said "I", pointed with her finger to herself and by way of her interpreter assured that "she was the buyer and guaranteed the payment", after [buyer] furthermore "very determinedly, almost annoyed, insisted that the other be allowed to pay the price" (witness X.), the [seller] finally and reluctantly acquiesced in having the [buyer's companion] issue and hand it the checks.

The [buyer] has not expounded its conflicting submission that [buyer's companion] was the one who negotiated the sale of the five batches of pigs with the [seller]. [Buyer] has also not offered an explanation for the fact that all invoices and export licenses were made out in its name. [Buyer] further failed to present its offered witnesses A. and B. for a hearing before the Court. [Buyer] even failed to make the necessary advance payment of expenses that would have enabled an Italian Court to hear these witnesses at their residence by way of international judicial assistance. After [buyer] had been given sufficient time to effect the relatively low advance payment of expenses, it did not observe the initial and the additional time limit set by the Court. In accordance with § 379 ZPO [Zivilprozessordnung,German Civil Procedure Code], the Court therefore does not seek international judicial assistance.

There is no indication that the credible and firm testimony of witnesses X. and Z. might not have been accurate and reliable. The Court therefore orders the [buyer] to fulfil its obligation under the contract which was considered duly formed, and pay the [seller], in accordance with Art. 62 CISG, the remainder of the purchase price (the amount of which claimed is solely with respect to the checks that could not be cashed, namely DM 180,683.00, instead of the correct total of 180,706.60 DM). The [seller] is further entitled to reimbursement of the costs charged [buyer] for the bounced checks under Art. 61 CISG. The claim for interest on the purchase price is based on Art. 78 CISG. The interest rate is 5% according to § 352 HGB [Handelsgesetzbuch, German Commercial Code].

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Germany is referred to as [seller]; following determination by the Court that the Defendant of Italy was the buyer, the Defendant is referred to as [buyer]. Amounts in German currency (Deutsche Mark) are indicated as [DM].

** Ruth M. Janal, LL.M (UNSW), a PhD candidate at Albert-Ludwigs-Universität Freiburg, has been an active participant in the CISG online database of the University of Freiburg.

*** 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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Pace Law School Institute of International Commercial Law - Last updated November 8, 2006
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