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CISG CASE PRESENTATION

Germany 13 March 1997 Lower Court Berlin-Tiergarten [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/970313g1.html]

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

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Case identification

DATE OF DECISIONS: 19970313 (13 March 1997)

JURISDICTION: Germany

TRIBUNAL: AG Berlin-Tiergarten [AG = Amtsgericht = Petty District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 2 C 22/97

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands [plaintiff]

BUYER'S COUNTRY: Germany [defendant]

GOODS INVOLVED: [-]


Case abstract

GERMANY: Amtsgericht Berlin-Tiergarten 13 March 1997

Case law on UNCITRAL texts (CLOUT) abstract no. 296

Reproduced with permission from UNCITRAL

A Dutch plaintiff sued a German defendant, inter alia, for reimbursement of debt collection costs. The plaintiff had engaged the services of a Dutch debt collection agency in order to collect payment from the defendant.

The court held that debt collection costs are not covered under article 74 CISG. Although the court admitted that a foreign creditor cannot necessarily be obliged to engage a German lawyer for debt collection from a German party to a contract, the court dismissed the claim, as it found that the plaintiff failed to follow the most economical way. The court noted that the plaintiff could have brought an action before a Netherlands court, the jurisdiction of which would have been granted, according to existing conventions. Furthermore, the court noted that under article 26 of the European Communities Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, the resulting Dutch decision would have also been enforceable in Germany, and thus, the costs for a Dutch debt collection agency as well as for a German lawyer could have been saved.

In contrast to the decision for debt collection costs, the court held that damages under article 74 CISG include court and lawyers fees.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 74 ; 77 [Also cited: Articles 57 ; 61(1)(b) ; 78]

Classification of issues using UNCITRAL classification code numbers:

74A [Damages (general rules for measuring): loss suffered as consequence of breach (court and lawyer's fees allowed; cost of debt collection agency disallowed];

77A [Obligation to take reasonable measures to mitigate damages: applicable to steps taken to collect/handling of litigation]

Descriptors: Damages ; Collection costs ; Legal costs ; Mitigation of loss

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/412.htm>; [1999] Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 172

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.773-774; 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]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 74 para. 20

German: Peter, [1999] Praxis des Internationalen Privat- und Verfahrensrecht (IPRax) 159-161

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Lower Court (Amtsgericht) Tiergarten

13 March 1997 [2 C 22/97]

Translation [*] by Daniel Fritz [**]

HOLDING

1. The Defendant [Buyer] has to pay to the Plaintiff [Seller] Deutsche Mark [DM] 873.94 plus interest of 4 per cent per annum of DM 621.30 from 4 February 1997.

2. Apart from that the [Seller]'s claim is dismissed.

3. The [Seller] has to bear the costs of the lawsuit to the extent of , the [Buyer] to the extent of .

4. The judgment is provisionally enforceable.

REASONS

Due the default of the [Buyer], the claim is admitted to the amount indicated in the holding para 1. pursuant to 331 II 1 Hs. ZPO [*]. Apart from that the [Seller]'s claim is rejected as unfounded due to 331 II 2. Hs ZPO.

1. The [Seller] is entitled to interest to the amount of DM 252.64 according to Art. 61 (b) in conjunction with 78 CISG.

2. The [Seller] can claim extrajudicial costs only in part. Art. 78 CISG does not exclude the right to further damages pursuant to Art. 74 CISG, but Art. 74 does not entitle a party to claim for reimbursement of collection charges. The view of LG [*] Essen, MDR [*] 1981, 148 (148) as well as LG Konstanz, Art. 83 Nr. 26 is dismissed (opposite view expressed by LG Konstanz, Art 38 EKG [*] No. 10 and Rechtbank Arnhem (NL) Art. 83 No. 29. cited in Schlechtriem/Magnus, Internationale Rechtsprechung). According to this view, such damages were foreseeable in this respect in the sense of Art. 74 CISG. Despite the court action that followed the collection agent's effort to collect the accounts receivable, the [Seller] had satisfied its duty of mitigation pursuant to Art. 77 CISG. In fact, it is correct that the German principles of refunding collection charge incurred in cases involving foreign contact are not directly applicable. It is also correct that a foreign creditor cannot be obliged to make use of a German lawyer which possibly would cause lower costs. Something different would not arise from the circumstances of a [Seller] first mandating a Dutch lawyer and after his/her unsuccessful efforts mandating a German lawyer.

The [Seller] immediately could have initiated court action in the competent Dutch court without mandating a Dutch collection agent and a German lawyer, respectively, which would have incurred the lowest costs. This is due to the fact that in accordance with the optional place of jurisdiction pursuant to Art. 5 No.1 EuGVÜ [*], in contract claims the place of performance can be declared to serve as venue of the court. Pursuant to Art. 57 CISG, place of performance for debts in money is (contrary to domestic German law) the seller's place of business. According to court rulings of the EuGH [*], this is also true for Art. 5 No. 1 EuGVÜ (cf. EuGH NJW [*] 1995, S. 183 (183). Apart from that, the Dutch judgment would have been recognized in Germany without incurring further expenses for the [Seller].

A claim for compensation of legal expenses incurred by the court and attorneys' fees arises from Art. 74 CISG as well. (comp. Herber/Czerwenka, aaO., Art. 74 Rn. 7).

Hence, the [Seller] can claim pre-litigation dunning expenses to the amount of DM 10, attorneys' fees (7,5/10) to the amount of DM 551.30 pursuant to 118 I 1 BRAGO [*], lump-sum expenses to the amount of DM 40 pursuant to 26 BRAGO as well as the costs to the amount of DM 20 for the excerpt from the commercial register. However, the attorneys' fees have to be set off against the litigation fees. In accordance with the application of the [Seller], [the Buyer] has to pay interest of 4 per cent on this amount pursuant to Art. 78 CISG in conjunction with Art. 28 I 1 EGBGB [*] in conjunction with Dutch Law.


FOOTNOTES

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

Translator's note on other abbreviations: BRAGO = Bundesrechtanwaltsgebührenordnung [German federal regulations for reimbursement of solicitors]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuch [German Code of International Private Law]; EuGH = Europäischer Gerichtshof [Court of Justice of the European Community]; EuGVÜ = Europäisches Gerichtsstands- und Vollstreckungsübereinkomen, 1968 [Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters]; LG = Landgericht [District Court]; MDR = Monatszeitschrift des deutschen Rechts [German Law Journal]; NJW = Neue Juristische Wochenschrift [German Law Journal]; ZPO = Zivilprozessordnung [German Code of Civil Procedure].

** Daniel Fritz is a graduate of the University of Potsdam, currently studying for the LL M degree at the University of Stellenbosch.

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Pace Law School Institute of International Commercial Law - Last updated October 19, 2005
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