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CISG CASE PRESENTATION

Germany 12 February 1998 Supreme Court (Air cleaning installation case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980212g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISIONS: 19980212 (12 February 1998)

JURISDICTION: Germany

TRIBUNAL: Bundesgerichtshof [Federal Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: I ZR 5/96

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

CASE HISTORY: 1st instance LG Freiburg 25 March 1994; 2d instance OLG Karlsruhe 7 December 1995 [affirmed]

SELLER'S COUNTRY: Switzerland [plaintiff]

BUYER'S COUNTRY: Germany [defendant]

GOODS INVOLVED: Air cleaning installation


Case abstract

GERMANY: Bundesgerichtshof 12 February 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 269

Reproduced with permission from UNCITRAL

An insurer, plaintiff, sued a carrier, defendant, for damages resulting from an accident. The claim involved rights which had been assigned to the plaintiff by a third party.

The court held that the provisions of the CISG were not relevant in this case. Although in general the Convention is applicable to sales of goods requiring shipment, the matters in dispute in this case concerned the contract of carriage, which as such fell outside of the scope of the Convention. The court also stated that, even if the Convention had been applicable to the contract in question, the matters in dispute, which concerned assignment of claims, assignment by operation of law and realization of third-party damages, were not matters governed by the Convention (articles 1 and 4 CISG).

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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 issues: Article 4

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): assignment, third-party damages]

Descriptors: Scope of Convention ; Assignment ; Third-party claims

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Editorial remarks

Excerpt from commentary by Peter Schlechtriem on Uniform Sales Law in the Decisions of the Bundesgerichtshof*

         * Commentary on CISG issues considered by the BGH, presented in "50 Years of the Bundesgerichtshof [Federal Supreme Court of Germany]: A Celebration Anthology from the Academic Community". Click here for the full text of this commentary.

Scope of Convention ; Assignment ; Third-party claims. "The unification of sales law is limited in scope. Important questions that frequently or even regularly arise in connection with a sales transaction are left to internal law, determined through the rules of private international law. Accordingly, the assignment of rights, cessio legis, or the assertion of rights of third-party interests are excluded from the Convention.34 In this respect, there are not 'internal' gaps that would need to be filled on the basis of general principles embedded in the Convention, since on the one hand, such principles for these legal questions are apparently lacking, and on the other hand, documents and the developmental history of the Convention show that no treatment of these questions was intended."

        34. BGH of 12 February 1998, NJW 1998, 3205, 3206.

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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=298&step=Abstract>

German: [1998] Eildienst Bundesgerichtliche Entscheidungen (EBE/BHG) 445; [1999] Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit international et de droit européen 199; [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 125-127

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/343.htm [excerpt]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=298&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Schlechtriem, in: Uniform Sales Law in the Decisions of the Bundesgerichtshof (2001), at n.34; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 4 paras. 22b, 23; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 128

German: Piltz, [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 13 [15]

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Case text (English translation)

Queen Mary Case Translation Programme

excerpt from

German Federal Supreme Court 12 February 1998

Docket No. I ZR 5/96

Translation by Martin Eimer [*]

Translation edited by Ruth M. Janal [**]

I.   []

II.  []

1.   a) - c)  []

      d) The provisions of the CISG (of 11 April 1980) do not influence the evaluation made above.

The Convention may apply to sales to a destination according to buyer's instruction (cf. Staudinger/Magnus, Art. 1 n. 18). It does not, however, contain rules in respect of general institutions under the law of obligations, which are not directly attributed to the law of sales (cf. Herber/Czerwenka, Art. 1 n. 21).

Accordingly, neither the assignment of claims (cf. Staudinger/Magnus, Art. 4 n. 57), nor the assignment by operation of law, or the question of asserting third-party interests is subject of the CISG. Their preconditions, validity and effect solely depend on the applicable national law (cf. Staudinger/Magnus, Art. 4 n. 57).

2. Contrary to the view taken in the response to the appeal, claims arising out of the contract are not subject to review.

The Landgericht Freiburg (Court of First Instance) rejected the claim as being inadmissible on the grounds that it lacked local jurisdiction in that matter. The Appellate Court concurred and rejected the Claimant's appeal.

According to paragraph 549(2) ZPO [***] the local competence of the courts of first instance is not reviewed by the highest appellate instance for a third time. In the interest of speed and simplicity of the proceedings this provision generally excludes a review of the local jurisdiction of the Court of First Instance by the highest instance.

III.  []


FOOTNOTES

* Martin Eimer, Associate of the Institute of International Commercial Law of the Pace University School of Law, received his L.L.M. from Edinburgh University. He is currently a Research Assistant to Prof. Martin Hunter, Essex-Court Chambers, London.

** Ruth M. Janal, LL.M. (UNSW) is a Phd candidate at Albert-Ludwig-Universität Freiburg.

All translations should be verified by cross-checking against the original text.

*** Translator's note: ZPO = Zivilprozßeordnung [German Civil Procedure Code].

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