Germany 5 February 1997 Supreme Court [ULIS precedent] (Containers for plants case)
[Cite as: http://cisgw3.law.pace.edu/cases/970205g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: VIII ZR 41/96
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Denmark (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Containers for plants
APPLICATION OF CISG: No, this is a ULIS case.
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
6A1 [Implied exclusion of Convention: reliance on German domestic law]; 61A2 [Sellerís remedies for breach of contract by buyer: seller may claim damages as provided in arts. 74 to 77]
6A1 [Implied exclusion of Convention: reliance on German domestic law];
61A2 [Sellerís remedies for breach of contract by buyer: seller may claim damages as provided in arts. 74 to 77]
EDITOR: Ulrich G. Schroeter
This is not a CISG case, but a ULIS case. It deals with the delivery of goods (plants) during the years 1988-1990. The seller appears to have been from Denmark and the buyer a large chain of retail stores in Germany.
The dispute does not center around the quality of the goods themselves, but rather around the containers in which they were delivered. The parties, who had a long-running business relationship, had apparently agreed that the seller would deliver the plants stored in containers; as delivery would usually take place in the early morning hours before the buyer's stores opened, seller would leave the containers on the stores' loading ramps, unguarded. Buyer would then unload the containers and deposit the empty containers at the loading ramp, and seller would pick them up the next time he would arrive with a new delivery.
Seller, claimant in this case, now sued buyer for damages claiming that during 1998-1990 he had delivered more containers than he got back.
The Bundesgerichtshof just briefly mentions ULIS when dealing with the Court of Appeals' findings on the applicable law: "The appellate court has stated: The legal relationship between the parties is governed by German law. The uniform law on international sales does not contain a rule for the claims presently in dispute. Accordingly, national law is to be applied. Both parties have relied on German law and have thus implicitly concluded an agreement about the applicable law."
These findings are then confirmed: "Correctly and unquestioned by the applicant, the appellate court has found that the claim for damages is governed by German law ..."
Under the CISG, it seems clear that this problem would be governed gy Article 61(1)(b).Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): Neue Juristische Wochenschrift (1997), Heft 23, 1578-1580
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents