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CISG CASE PRESENTATION

Germany 5 February 1997 Supreme Court [ULIS precedent] (Containers for plants case)
[Cite as: http://cisgw3.law.pace.edu/cases/970205g1.html]

Primary source(s) of information for case presentation: NJW publication

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Case identification

DATE OF DECISION: 19970205 (5 February 1997)

JURISDICTION: Germany

TRIBUNAL: Bundesgerichtshof [Federal Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: VIII ZR 41/96

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Denmark (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Containers for plants


Classification of issues present

APPLICATION OF CISG: No, this is a ULIS case.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: CISG Articles 6 ; 61(1)(b) [Also relevant: CISG Article 74 ]

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]

Descriptors: Choice of law ; Damages

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Editorial remarks

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).

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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): Neue Juristische Wochenschrift (1997), Heft 23, 1578-1580

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated September 1, 2004
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