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CISG CASE PRESENTATION

Germany 3 June 1998 Appellate Court Saarbrücken (Flowers case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980603g1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISIONS: 19980603 (3 June 1998)

JURISDICTION: Germany

TRIBUNAL: OLG Saarbrücken [OLG = Oberlandesgericht = Provincial Court of Appeal]

JUDGES(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1 U 703/97-143

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

CASE HISTORY: 1st instance LG Saarbrücken 18 July 1997 [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Flowers


Case abstract

GERMANY: Oberlandesgericht Saarbrücken 3 June 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 290

Reproduced with permission from UNCITRAL

A German buyer, defendant, purchased flowers from an Italian seller, plaintiff. Upon collecting the flowers at the site of the seller's business, the buyer's driver commented upon their "miserable" state. After receiving the goods, the buyer informed the seller of the "miserable" state of the flowers and refused to pay the purchase price.

The court found that the buyer had not complied with the obligation to specify the lack of conformity; the notice given to the seller did not contain an exact description of the non-conformity and could have referred to the size and appearance of the flowers rather than their inferior condition. The court also stated that, where international trade in flowers is involved, the buyer can be expected to act immediately on the day of the delivery (articles 38 and 39 CISG). As the buyer had lost its right to rely on the lack of conformity, the buyer was obliged to pay the purchase price (article 53 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: Articles 38 ; 39 [Also cited: Articles 35 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

38A1 [Buyer's obligation to examine goods as soon as practicable in the circumstances];

39A11 ; 39A2 [Requirement to notify seller of lack of conformity (specification of nature of non-conformity): degree of specificity required ; Buyer must notify seller within reasonable time]

Descriptors: Examination of goods ; Lack of conformity notice, specificity ; Lack of conformity notice, timeliness

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Editorial remarks

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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=357&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/354.htm>; Oberlandesgericht-Rechtsprechungsreport (OLGR) Saarbrücken (1998) 398; Neue Juristische Wochenschrift Rechtsprechungs-Report Zivilrecht (1998) 780; [1999] Transportrecht-Internationales Handelsrecht 41; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=357&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Witz, ICC International Court of Arbitration Bulletin, Vol. 11/No. 2 (Fall 2000) 20 n.39; Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act (2000) 4.3.1 [analysis of related articles 38, 39, 40 and 44 (includes digests of relevant material in many CISG cases; also digests cases under a domestic sales code that is patterned, for the most part, after the CISG)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 4-9 n.125 & n.126; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.345, 372, 407; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 79, 91; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 paras. 6, 15, 16

French: Niessen, Dalloz Sirey: Paris (November 1999) 356-357

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Case text (English translation)

Queen Mary Case Translation Programme

Oberlandesgericht Saarbrücken 3 June 1998

Translation [*] by Todd Fox [**]

Translation edited by Dr Loukas Mistelis [***]

Facts

The [buyer] purchased flowers from the [seller], domiciled in Italy, at a price of 20,197.20 DM [Deutsche Mark] and had its own driver collect the flowers at the [seller's] premises. The [buyer], claiming defective delivery, refuses to pay the price. The regional court found for the [seller]. The [buyer] appeals.

The Reasons for the Decision

The [buyer's] appeal is timely, meets the form and procedure requirements and is allowed but remains unsuccessful against the relevant reasoning of the challenged decision. Under Art. 53 CISG the [buyer] is obligated to pay the purchase price of 20, 197.20 DM.

Due to infringement of the obligation to give notice (Art. 39 CISG) the [buyer] has lost the right to claim non-conformity of the goods.

1. The legal relations between the parties are governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), which entered into force in Italy on 1 January 1988 and in Germany on 1 January 1991. According to Art. 38 CISG the buyer has a short time-period, adapted to the circumstances, to examine the goods. The buyer must notify the seller according to Art. 39(1) CISG of any discovered lack of conformity within a reasonable time (Staudinger/Magnus, CISG, 13th. ed., Art. 38, Rn. 1). If the buyer wishes to derive rights accruing from the non-conformity of the goods to the contract, he must properly -- timely and in appropriate form -- give notice to the seller (Staudinger/Magnus, op. cit., Art. 39, Rn. 1). The buyer must specify the lack of conformity; general statements are not sufficient (Staudinger/Magnus, op. cit., Art. 39, Rn. 21). With perishable goods immediate notice is called for (Staudinger/Magnus, op. cit., Art. 39, Rn. 40). In the international trade of flowers the buyer should be expected to act immediately on the day he receives delivery (OLG Hamburg, RIW 1982, 435).

2. The [buyer] failed to meet its obligation to give an exact description of the breach of contract. Though the [buyer's] driver complained of the quality of the goods upon their collection, the necessary specificity is lacking. Likewise, the reiteration after receipt of the flowers that their state was "miserable" also lacks the required specificity. The merely per fax complaint of non-uniform sorting of the chrysanthemum bushes is to be disregarded as a minor defect, since these goods concern only 10% of the whole delivery and the [buyer] has shown no particular agreement regarding the manner of their sorting (Staudinger/Magnus, op. cit., Art. 35, Rn. 11). Finally, the [buyer's] allegation that after arrival of the goods it complained about the poor growth of the chrysanthemums and hydrangea does not amount to a remedy (cause of action). First of all, this allegation is not consistent with the [buyer's] previously claimed general quality objections. Furthermore, the reference to poor growth, which could refer to the size or the appearance of the plants, is not an appropriate description to specify a defect in accordance with Art. 39 CISG. Finally, it is also not clear whether this objection was raised within the applicable short time-period of one day (OLG Hamburg, RIW 1982, 435); the [buyer] divulged [i.e., recorded] neither the exact time of the arrival of the goods nor the time of the notice of the alleged lack of conformity.

3. Because of its failure to observe the notice obligations the [buyer] is obligated to pay the purchase price (Art. 53 CISG) and prevented from claiming non-conformity of the goods. Consequently the [buyer] also cannot claim damages for the poor salability of the goods.


FOOTNOTES

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

** Todd Fox is an Associate of the Institute of International Commercial Law of the Pace University School of Law. He received his LL.M summa cum laude from the University of Freiburg, Germany.

*** Loukas Mistelis is Clive M Schmithoff Senior Lecturer in International Commercial Law at the School of International Arbitration and the Chair, Graduate Studies Committee, School of Law, Queen Mary, University of London.

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Pace Law School Institute of International Commercial Law - Last updated August 11, 2005
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