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CISG CASE PRESENTATION

Germany 23 June 1998 Appellate Court Hamm (Furniture case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/980623g1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19980623 (23 June 1998)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 19 U 127/97

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

CASE HISTORY: 1st instance LG Paderborn 10 June 1997 [affirmed]

SELLER'S COUNTRY: Austria (plaintiff is seller's assignee)

BUYER'S COUNTRY: German (defendant)

GOODS INVOLVED: Furniture


Case abstract

GERMANY: Oberlandesgericht Hamm 23 June 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 338

Reproduced with permission from UNCITRAL

Two Austrian sellers and a German buyer, defendant, concluded agreements for the delivery of furniture manufactured and stored in a warehouse in Hungary. When the goods were placed in the warehouse, the sellers issued storage invoices, which were subsequently sent to the buyer. Under the agreements, the buyer was entitled to order partial deliveries of the furniture, which had to be handed over by the sellers at the warehouse and loaded either on wagons or on the buyer's lorries for transmission to the buyer. Upon delivery, the buyer had to pay the purchase price on the basis of a delivery invoice. After having issued several storage invoices, the sellers assigned their rights to a third party, plaintiff. The buyer, upon receipt of the third party's notice of the assignment, accepted it in writing. However, as the buyer had not received the furniture listed in the storage invoices, it did not pay the purchase price. The Hungarian warehouse firm declared bankruptcy and the furniture disappeared from the warehouse. Subsequently, the plaintiff sued the buyer for the alleged outstanding purchase price on the basis of the storage invoices.

The appellate court upheld the decision of the lower court, which had dismissed the claim.

The court held the CISG to be applicable, as both parties had their places of business in different Contracting States of the CISG and had not excluded the application thereof under article 6 CISG.

The court rejected the plaintiff's assertion that the buyer's consent to the assignment amounted to an acknowledgement of the assigned claims. In the absence of a CISG provision dealing with the issue of acknowledgement, the court applied the rules of private international law of Germany, which led to the application of Austrian law. Pursuant to such law, the written acceptance of the assignment did not constitute an acknowledgement of the claims and as such, had to be denied.

The court held that the plaintiff was not entitled to claim the purchase price under article 53 CISG, as it had become apparent that the sellers would not be able to perform the delivery of the furniture, which constituted a substantial part of their obligations (article 30 CISG). Therefore, the buyer was allowed to suspend the performance of its obligations according to article 71(1)(a) CISG. The court interpreted the refusal of the buyer to pay the storage invoices as the required notice of suspension of performance under article 71(3) CISG.

The court found that the buyer was not obliged to pay the purchase price according to article 66 CISG, because the plaintiff did not prove that the goods were lost after the risk had passed to the buyer. In the case at hand, the passing of the risk had to be determined according to article 69(2) CISG, as under the parties' agreements, the buyer was bound to take over the goods at a place other than the seller's place of business. However, the conditions for the passing of risk pursuant to article 69(2) CISG, namely due delivery and the buyer's awareness that the goods were placed at its disposal, had not been fulfilled. Under the parties' agreements, delivery was due at the buyer's demand (article 33(a) CISG), which had not been made, and the sellers had failed to place the furniture at the buyer's disposal (article 31(b) 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 issue: Articles 4 ; 8 ; 30 ; 31 ; 53 ; 66 ; 69(2) ; 71(1) and 71(3) [Also cited: Articles 6 ; 33(a) ; 58(1) ; 68 ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention: issues excluded (assignment issues)];

8A [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct];

30A [Seller's obligations: delivery];

31C [Place for delivery: goods at buyer's disposal at warehouse];

53A [Buyer's obligation to pay price of goods: seller not entitled to claim];

66A [Loss or damage after risk has passed to buyer: conformity of goods determined as of time risk passes];

69B11 [Buyer to take goods at place other than seller's place of business: risk passes when delivery is due and buyer is aware goods are at his disposal (Requirements of due delivery and buyer's awareness not satisfied.)];

71A1 ; 71C [Grounds for suspension by buyer: apparent that seller will not perform substantial part of obligations; Obligations of party suspending performance: immediately notify other party (Refusal of buyer to pay storage charges regarded as sufficient notice).]

Descriptors: Scope of Convention ; Assignment ; Intent ; Delivery ; Price ; Passage of risk ; Burden of Proof ; Suspension of performance ; Waiver

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Editorial remarks

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Citations to other abstracts, texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=448&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/434.htm>; [1999] Recht der Internationalen Wirtschaft 785-787; [2000] Transportrecht-Internationales Handelsrecht 7-10; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=448&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 5-5 n.42; Valioti, Passing of Risk under CISG and Incoterms (2003) n.168; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.544-545, 718; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 31 paras. 50, 64 Art. 33 para. 15 Art. 71 paras. 10, 20; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 486

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Case text (English translation)

Queen Mary Case Translation Programme

Oberlandesgericht Hamm 23 June 1998

Translation [*] by Ruth M. Janal [**]

Translation edited by Camilla Baasch Andersen [***]

FACTS OF THE CASE

[Plaintiff], who has been assigned several debts by the [seller], is asking for payment of the purchase price for a delivery of furniture.

In the years 1992 to 1995 [buyer], located in Steinheim [Germany], imported furniture manufactured in Hungary. [Buyer] acquired the furniture from [the seller], of Klosterneuburg [Austria], and from [a second seller], also from [Austria]. These companies, in turn, entered contractual relations with a Hungarian manufacturer. At least in part, the deliveries were dealt with in such a way that the [second Austrian company] acted as a supplier to the [seller], who then resold the goods to the [buyer]. [Buyer] concluded several contracts with the [sellers] over extensive deliveries of furniture. These orders named the respective items, at least the approximate overall volume, the Hungarian manufacturer, and the periods allowed for delivery. The contracts did not contain a choice of law clause. According to the contracts, [buyer] was to take possession of the goods at the manufacturing works and load the furniture into railway wagons or trucks. The [buyer] was allowed to require partial delivery of the furniture at its request; the volume of the deliveries was to follow delivery diagrams which the [buyer] was to draw up. The [sellers] agreed to the General Conditions of the buyer which were contained in the orders. There were four delivery contracts:

[...]

With respect to the further content of the parties' agreement, the Court refers to the contracts.

The parties developed the practice to store the manufactured goods in a warehouse in [Hungary] until the [buyer] requested delivery. After the furniture had been stored in the warehouse, [seller] would issue storage invoices for [the buyer]. However, [buyer] would only pay the delivery invoices after the furniture had been delivered. [Buyer] did not pay anything towards the storage invoices.

To secure a loan given to [seller] by the [plaintiff], [seller] assigned to the [plaintiff] claims that it allegedly held against the [buyer] for payment of the price. The transfer contracts of 29 October 1993, 5 November 1993, 2 February 1994, and 8 February 1994 stated an overall amount of DM [Deutsche Mark] 413,206.00. The following invoices that had been issued for the [buyer] formed the basis of the transfer:

[...]

All of the invoices constituted storage invoices.

In [buyer]'s letter of 20 September 1994, [buyer] asked [seller] to stop sending its storage invoices. [Buyer] told [seller] that it would not pay such invoices and that [buyer]'s bank had informed it that by issuing storage invoices, a system of double charging was being established that could lead to legal problems.

[Plaintiff] notified the [buyer] in writing of each assignment. When [plaintiff] complained that [buyer] had not sent a written confirmation of the transfers, [buyer] wrote a letter to [plaintiff] dated 24 October 1994, stating:

"... we would like to confirm that:

"We accept a transfer of [seller]'s rights with respect to the stored goods. Nevertheless we would like to point out that we have been allowed a respite in payment until we request delivery, as [seller] has agreed that a delivery invoice will be issued once delivery is effected. This delivery invoice replaces the storage invoice (which has only been issued pro forma) and has to be paid.

"Such a procedure is necessary because the goods requested do not necessarily correspond in number and kind to the original storage; different furniture is being mixed according to our needs, and delivery is made to our customers in [...]."

The furniture referred to in the invoices was not delivered to the [buyer] and it did not make any payment towards those invoices. The manufacturing company has gone bankrupt. The warehouse in [Hungary] was dissolved; there is no furniture left.

[Plaintiff] submits that the storage invoices are based on the delivery contracts formed between [buyer] and [seller]:

-     on 18 November 1991 (period allowed for delivery: 1 January 1992 to 31 December 1992);
-     on 5 January 1994 (delivery period: 1 January 1994 to 30 September 1994); and
-     on 6 June 1994 (delivery period: 1 July 1994 to 31 December 1994).

The contract of 10 November 1992 (delivery period: 26 October 1992 to 31 March 1993) had only mistakenly been issued in the name of the [other Austrian supplier]. Moreover, the time allowed for delivery had been prolonged until the end of 1993. [Plaintiff] submits that the furniture was stored by the manufacturer following instructions of the [buyer].

[Plaintiff] submits that the [buyer] accepted the transfer by letter of 24 October 1994, and that Austrian law is applicable according to Art. 28 II EGBGB [*]. According to 1396 AGBG, [buyer] was obliged to pay the [plaintiff]. [Plaintiff] further submits that [buyer]'s manager told [plaintiff]'s employee in the spring of 1993 that all transfers, past present and future, would certainly be accepted.

[Plaintiff] is of the opinion that - independently of [buyer]'s letter acknowledging the assignment of debt - the payment of the purchase price had been due. [Plaintiff] submits that the delivery to the warehouse in [Hungary] constituted a delivery to the [buyer]. The parties had agreed to vary the effect of Art. 58(1) CISG. The [seller] had only been obliged to make the furniture available at the manufacturing company's place of business. [Plaintiff] submits that [buyer] was obligated to pay for warehousing the furniture. The storage was made by order and in the interest of the [buyer], so that it was able to deliver the goods directly to its customers according to the market situation. Furthermore, this enabled the [buyer] to save the higher costs of storage in [Germany]. [Buyer] and [seller] had discussed this purpose. [Buyer] had had the furniture to its full disposal.

[Plaintiff] argues that the fact that the furniture has not been delivered to the [buyer] does not release [buyer] of its obligation to pay the purchase price. The loss of the goods in the warehouse was within [buyer]'s sphere of control. [Buyer] had borne the risk that the goods were lost while in storage. When the furniture was stored, an appropriation had occurred, so that when the goods were lost, [seller] was no longer able to perform its determined obligation.

[Plaintiff] further submits that the witness A informed the [buyer] at the time they agreed to store the goods, that the storage would be at [buyer]'s risk. The reason was that, after a fire in the dyeing works in 1995, an insurer had refused to compensate for the damages caused to furniture whose ownership had already been transferred. At the time the furniture was stored, the goods destined for [buyer] had been singled out.

[Plaintiff] is asking the Court to order [buyer] to pay [plaintiff] DM 413,206.- with interest of 12.5% from the date the claim was lodged, in the alternative, with interest of 5% from 28 November 1993.

[Buyer] is asking the Court to dismiss the claim.

[Buyer] submits that it did not conclude a contract with the [seller] for the delivery of the furniture in question. The storage invoices did not refer to the delivery contracts between the parties, as the dates when the goods were being stored did not correspond to the time agreed for delivery. Five installments were stored during the year 1993. An agreement for delivery with respect to this time frame did not exist between [buyer] and [seller]. In any case the invoices claimed by [plaintiff] were not due. [Buyer]'s letter of 24 October 1994, especially the remark that [buyer] had been allowed a respite in payment until its request for delivery, demonstrate that the payment of the price was only due once the furniture was delivered to [buyer]. [Buyer] submits that it never requested delivery of the furniture. According to [buyer]'s agreement with the [sellers] (and as had been stated in [buyer]'s letter of 24 October 1994), the storage invoices had only been pro forma invoices that [buyer] had not been obliged to pay. The invoices had solely served the purpose to inform [buyer] that the goods had been manufactured and were ready to be called. Witness A. had used the storage invoices to assign outstanding debts to [plaintiff] twice - first, when the furniture was stored, and then a second time when it was delivered.

[Buyer] furthermore argues that it was in no way connected with the warehouse in [Hungary]. [Buyer] did not possess a key for the storage rooms, nor did it have its own access to the goods. The manufacturer produced the goods on stock and stored the goods itself. [Buyer] only granted the [sellers] some financial support for storing the goods. This was common practice in just-in-time production processes and did not have any effect on the passing of risk. [Buyer] does not know what happened to the furniture that [plaintiff] is asking to be paid for.

[Buyer] is further of the opinion that its letter of 24 October 1994, in which it accepted the assignment of the debt, did not have any legal relevance. The assent of the debtor was in no way necessary for the validity of such anassignment. Furthermore, [plaintiff] did not substantiate its arguments. [Seller] did not submit how the furniture was lost, whether this happened by chance and why [seller] was unable to perform its obligation to deliver the furniture. Furthermore, [plaintiff] was unable to rely on an alleged agreement on the passing of risk in the year 1995, because the furniture had already been stored in the years 1993 and 1994.

The Court of First Instance dismissed the [plaintiff]'s claims in its decision of 10 June 1997.

The Court held that Art. 53 CISG in connection with the transfer of rights did not oblige [buyer] to pay [plaintiff] the amount stated in the invoices. [Buyer] was not obliged to pay simply because it acknowledged the debt in its letter of 24 October 1994. In its letter, [buyer] only accepted the transfer of rights, but did not declare that it acknowledged the debt assigned in a way that would exclude all defenses against a future claim.

The Court of First Instance held that there was not sufficient ground to assume that contracts of sale for the furniture referred to in the invoices had in fact been concluded. A distinction had to be made between the framework contract and the individual requests for delivery which had to be made according to the delivery diagrams drawn up by the [buyer]. Both with respect to the framework contract and the individual contracts, the CISG was applicable. In the case at hand, there was no indication that [buyer] had actually requested delivery of the furniture referred to in the storage invoices. Therefore, a contract for the sale of the furniture had not been formed.

Furthermore, the Court held that the provisions for the transfer of risk favored the [buyer]. Under Art. 68 CISG, the risk of goods sold passed at the time of the handing over of the goods to the buyer. However, [buyer] had not taken delivery of the furniture. [Buyer] had objected to [plaintiff]'s submission that the furniture had been stored in a warehouse administered and paid for by the [buyer]. [Buyer] had submitted in detail that the furniture had been stored in the manufacturing works which it did not have access to. This corresponded to the contractual agreement that [seller] or the manufacturer was to load the goods.

The Court also held that the risk had not passed due to a default in taking delivery on the part of the [buyer]. [Plaintiff] did not submit that the parties had agreed that [buyer] would take delivery of the furniture at a precise point in time and that [buyer] had violated such an agreement. The submission that the witness A. had informed [buyer] following a fire damage in the year 1995 that the storage occurred at [buyer]'s risk did not lead the Court to conclude that an agreement on the passing of risk had been formed. Since the furniture had been stored at the end of 1993 or the beginning of 1994, an event in the year 1995 could not have motivated the witness to talk about the loss of risk at the time of storage. Moreover, [plaintiff] did not claim that [buyer] had agreed to such a transfer of risk. A comment by one party alone could not serve to change the rules for the passing of risk under the CISG.

[Plaintiff] is appealing this decision.

[Plaintiff] submits that [buyer]'s letter of 24 October 1994 constituted an acknowledgement of its claims, especially since [buyer] had noted that the goods being stored had been ordered by it and that it would eventually request delivery of the furniture. As the CISG does not contain any rules with respect to the assignment of rights [plaintiff] submits that Austrian Law was applicable according to Art. 28(1) and (2) EGBGB [*]. Because it acknowledged the assignment, [buyer] was barred from submitting any further defenses. The only defense left to [buyer] was the respite in payment that had been agreed between the parties.

[Plaintiff] further submits that the delivery contract of 10 November 1992 (which had been concluded at the furniture trade fair in [...]) had mistakenly named the [other sales company] as one of the parties. The mistake had occurred because [buyer] had concluded all other contracts at the trade fair with [that company]. The warehouse, however, had belonged to the [manufacturer]. The furniture that had been produced for the [buyer] had been stored in separate storage rooms. [Buyer] was responsible for all of the storage costs, not only a part of the storage costs. Both warehouses had been ordered to hand over the furniture at the request of the [buyer].

[Plaintiff] maintains that [buyer] should be required to pay the purchase price under Art. 69(2) and Art. 66 CISG despite the fact that the furniture vanished. The risk had already passed according to Art. 69(2) CISG, when [seller] placed the furniture at [buyer]'s disposal at the warehouse. The storage invoices issued by the [seller] contained the remark "at your disposal"; therefore, there was a promise by the warehouse manager to hand over the goods. Even without such a letter of confirmation to the [buyer], a simple direct order by the [seller] telling the warehouse manager to hand over the goods at [buyer]'s request would have sufficed for the passing of risk under Art. 69(2) CISG.

[Plaintiff] asks for a rate of interest which is at least 4% higher than the discount rate of the national bank. [Plaintiff] submits that this is the average rate of interest that it as a credit institution charges for loans.

[Plaintiff] is asking the Court to reverse the decision of the Court of First Instance and to order the [buyer] to pay [plaintiff] DM 413,206.- with interest of 8.5% from 1 January to 31 March 1995, 8% from 1 April to 24 August 1995, 7.5% from 25 August to 14 December 1995, 7% from 15 December 1995 to 18 April 1996, and 6.5% from 19 April 1996.

[Buyer] is asking the Court to dismiss the appeal.

[Buyer] submits that it did not issue an acknowledgement of indebtedness which could result in an exclusion or restriction of its defenses. Whether [buyer] had acknowledged the debt has to be considered under German law. Unlike the assignment of a claim, the law applicable to the acknowledgement of a debt is not the same as the law applicable to the claim itself (Art. 33(2) EGBGB [*]). The act that was characteristic for an acknowledgement of indebtedness (the creation of a new or the affirmation of an old debt) had been performed by the [buyer] in Germany. Therefore 781 BGB [*] has to be applied. [Buyer]'s letter has to be interpreted according to the understanding that a reasonable person in the position of [plaintiff] would have had and by taking into account the obvious interests of the [buyer]. Under these circumstances, it could not be assumed that [buyer] had intended to establish a new, abstract debt - or that [buyer] had intended to waive its defenses against an alleged claim for payment of the purchase price. The letter rather constituted an acceptance of the assignment, especially so in view of the fact that [buyer] had made it clear that it intended to pay only for the furniture delivered. The application of Austrian law would lead to the same result. According to Austrian case law, which applies a strict interpretation to 1396(2) ABGB [*], only a constitutive, not a declaratory acknowledgement of indebtedness could be equated with a waiver of defenses. The letter, however, did decidedly not amount to a constitutive acknowledgement, because [buyer]'s intent to declare such an acknowledgement would have had to be obvious and unambiguous.

[Buyer] submits that plaintiff's arguments are not conclusive. [Plaintiff] has not shown which invoice corresponded to which delivery contract. Not only were there discrepancies between the time allowed for delivery and the period during which the furniture had been stored, but also the description of the furniture did not correspond to the delivery contracts. The invoices contained items which had not been listed in the delivery contracts.

[Buyer] submits that the risk of a loss of the goods due to an impediment beyond [seller]'s control had not passed to [buyer] according to Arts. 66 to 69 CISG. [Plaintiff] had neither submitted nor proven that the furniture had disappeared by chance. Furthermore, Art. 69(2) CISG presupposed that delivery of the goods was due. As the [buyer] had not requested delivery of the furniture, [seller]'s performance had not been due. The storage invoices issued by the [seller] did not place the furniture at [buyer]'s disposal as required under Art. 69(2) CISG. The documents did not have any declaratory effect apart from their purpose as an invoice.

[Buyer] furthermore invokes the expiration of the limitation period.

GROUNDS FOR THE DECISION

The appeal by [plaintiff] is unfounded.

I.  [Plaintiff] does not have a right to payment of DM 413,206.- based on a constitutive acknowledgement of indebtedness. [Buyer] did not issue any declaration that could be considered as such an acknowledgement.

     1. The question of whether [buyer] declared a constitutive acknowledgement of indebtedness has to be considered under Austrian law. According to Art. 1(1) CISG, the UN Convention of Contracts for the International Sale of Goods is the applicable law for the delivery contracts between the [buyer] and the [seller] (which, according to [plaintiff], form the basis of its claims). [Buyer] and the [seller] have their places of business in different Contracting States (Honsell, Kommentar zum UN-Kaufrecht, 1997, p. 1089). The parties did not exclude the application of the Convention according to Art. 6. However, since an acknowledgement of indebtedness is not covered by the Convention, it has to be settled according the law applicable by virtue of the rules of private international law.

The EGBGB [*] does not expressly concern itself with an acknowledgement of indebtedness. In case the parties did not agree on a choice of law clause, the applicable law is that which governs the debt acknowledged (MüKo-Martiny, 2nd ed., 1990, 32 EGBGB n. 53). Under Art. 28(1) and (2) EGBGB [*] this leads to the application of Austrian law, because the delivery contracts had a closer connection to Austria, with the [sellers] owing the performance that was characteristic for the sales contract. The application of Austrian law is furthermore advisable since 1396 sent. 2 ABGB [*] contains a special rule for the acknowledgement of an assigned debt. According to Art. 33(2) EGBGB,[*] the assignment of these rights to [plaintiff] is governed by the law that would be applicable to the contract, were the contract not governed by the CISG. If the acknowledgement of indebtedness was to be assessed according to a different law, this would lead to a conflict with the special rule of 1396 ABGB [*].

     2. [Buyer]'s letter to [plaintiff] does not constitute an effective acknowledgement of indebtedness under Austrian law. The acknowledgment is a declaratory contract, whereby one party - by unilaterally giving in - declares that a right exists in its entirety (Koziol/Welser, Grundriß des bürgerlichen Rechts, vol. 1, 10th ed., 1995, p. 288). A constitutive acknowledgement of indebtedness - as a new obligation independent of the claim formerly disputed - is only valid under certain prerequisites under Austrian law (this is because abstract contracts are generally not permissible): the acknowledgement requires a genuine and serious dispute or at least a doubt about the existence of the claim between the parties (Bydlinski in Klang, Kommentar zum ABGB, 2nd ed., vol. 4, 1978, p. 399; Rummel-Ertl, Kommentar zum ABGB, 2nd ed., vol. 2, 1992, 1396 n. 2). Only such a definite disagreement or uncertainty establishes a connection to the claim that is sufficient to avoid an abstract obligation principally foreign to the Austrian law. Even without interpreting its content, the letter of 24 October 1994 cannot be viewed as an effective constitutive acknowledgement of indebtedness for the sole reason that at the time [buyer] was writing it, there was no dispute or serious doubt between the parties as to the obligations resulting out of contract.

For the same reason, the oral declaration of [buyer]'s manager to one of the [plaintiff]'s employees - independently of its content - did not constitute an effective acknowledgment of debt. Even if [buyer]'s manager had declared that all transfers, past, present and future would be accepted by the [buyer] (which is something buyer denies), such declarations would not have formed a constitutive acknowledgement of debt, because at the time the alleged statement was issued, the parties were not in dispute or uncertainty with respect to the claims.

II. [Plaintiff] is not entitled to payment of the price of DM 413,206.- out of the assigned claim for the purchase price.

There is doubt as to whether the invoices for the delivery of furniture which [plaintiff] presents can be assigned to one of the four delivery contracts. Furthermore, it is debatable whether the claims for the purchase price have matured even though the furniture has not been delivered to the [buyer]. These questions can remain unanswered. What stands in the way of the claim presented by [plaintiff] is that [buyer] is entitled to suspend its performance of the possibly existing obligation to pay the price according to Art. 71(1) CISG.

      1. It became apparent after the conclusion of the delivery contracts that the [seller] would not perform a substantial part of its obligations - that is, the delivery of the goods (Art. 30 CISG). According to the submission of [plaintiff], the furniture that had been stored for the [buyer] was no longer in stock at the warehouse in Hungary. By refusing to pay the price, [buyer] gave notice of the suspension of its performance as required by Art 71(3) CISG. By noting that payment would only be effected step by step against the delivery, [buyer] indicated that it would refuse to pay in case the furniture was not delivered.

      2. [Buyer] is not obliged under Art. 66 CISG to pay the purchase price despite the alleged loss of the goods. The burden of proof for the passing of risk is on the party that contends that the risk has passed (Staudinger-Magnus, 13th ed., 1994, Art. 69 n. 25). [Plaintiff] did not submit and prove that the goods were destroyed after the risk had passed to [the buyer].

[Plaintiff] has not even been able to prove that the risk has passed to [the buyer] at all. [Plaintiff] cannot rely on an agreement on the passing of risk formed between the [parties], under which the risk passed to the [buyer] when the furniture was stored. According to the submission of the [plaintiff], such an agreement on the passing of risk did not exist. An agreement cannot be inferred from the information - allegedly given by witness A. on the occasion of a fire in the year 1995 - that the furniture was stored at [buyer]'s risk. First of all, a unilateral comment by one party does not lead to an agreement to that effect. And, secondly the submission is inconsistent, as the furniture listed in the invoices was stored in the time between 19 October 1993 and 16 January 1994, so that the storage agreements had been concluded long before the alleged comment. An implicit agreement on the passing of risk can furthermore not be inferred from the fact - alleged by [plaintiff] - that [buyer] had access to the warehouse and was bearing the cost of storage. Even if these submissions were correct, they would not lead to an implicit agreement by the parties to vary the effect of the provisions of the Convention. Such circumstances would also not lead to the conclusion that [buyer] held such far-reaching control over the warehouse that it had to be assigned to [buyer]'s sphere of risk.

The time of the passing of risk therefore has to be ascertained according to the rules of the CISG. The relevant provision in the case at hand is Art. 69(2) CISG, as the parties agreed that [buyer] would take possession of the goods at [the warehouse in Hungary], that is, at a place other than the place of [seller]'s business. The risk passes under Art. 69(2) CISG when the delivery is due and the buyer is aware of the fact that the goods are placed at its disposal at that place.

Even according to the [plaintiff]'s submission, none of these requirements has been met. [Seller] has not proven that the deliveries were due. According to Art. 33(a), the seller must deliver the goods by the date fixed by or determinable from the contract. The contracts between [buyer] and [seller] provided that the dates on which [seller] was to deliver the furniture were to be determined by the delivery diagrams drawn up by the [buyer]. [Plaintiff] has neither presented any such delivery diagrams, nor did [plaintiff] explain when the furniture was supposed to be delivered according to the diagrams. Furthermore, [plaintiff] did not submit that [seller] had performed its obligation to deliver the furniture. According to Art. 31(a) CISG, the obligation to deliver in such circumstances consists of taking all steps necessary under the contract (v. Caemmerer/Schlechtriem-Hager, Kommentar zum Einheitlichen UN-Kaufrecht, 2d ed., 1995, Art. 69 Rn. 4; Honsell-Schönle Art. 69 n. 18, 11). According to the contracts, [seller] was to load the furniture on railway wagons or customer trucks and thereby place them at [buyer]'s disposal. This never happened.

Furthermore, [plaintiff] has not explained at what point in time the furniture disappeared. [Plaintiff] admitted that [plaintiff] is unable to give any details in this regard. It is therefore - apart from the question whether a passing of risk has occurred in the first place - impossible to find out whether the loss of the furniture has occurred before or after the passing of risk.

      3. 1396 AGBG [*] does not prevent the [buyer] from relying on the [seller]'s failure to deliver the goods. Neither [buyer]'s letter of 24 October 1994, nor the statement that [buyer]'s manager allegedly made to the witness J. in the spring of 1993 can be viewed as a constitutive acknowledgement of indebtedness (as has been explained above). They can also not be construed as a declaratory acknowledgement of indebtedness. Under Austrian law, such an acknowledgement is solely a declaration of knowledge which constitutes a refutable means of proof in a lawsuit (Koziol/Welser, Grundriß des Bürgerlichen Rechts, Bd. I, S. 289). [Buyer] did not declare that it considered the claims for payment of the purchase price listed in the storage invoices binding.

The wording used in [buyer]'s letter of 14 October 1994, in which it declares its acceptance of the assignment, evidently refers to the transfer of the debt, not the existence of such a debt. According to the understanding of a reasonable person, [buyer] simply declared that it had taken note of and consented to the assignment. The declaration was clearly a reply to [plaintiff]'s letter which criticized [buyer]'s silence with regard to the notices of assignment. [Buyer] only reacted to this complaint.

The part of the letter in which [buyer] states that it had ordered the items of furniture stored in the warehouse and would take delivery of them, is also not an acknowledgement of the debt. When taking into account the remaining part of the letter, this statement was solely a general reference to the fact that [buyer] had ordered furniture that was stored in the warehouse in Hungary and that [buyer] would take delivery of those goods. This interpretation is supported by the last two paragraphs of the letter in which [buyer] explicitly states that in its opinion, the storage invoices had been issued "pro forma" and did not have to be paid. [Buyer] stated that it only intended to pay after delivery had been effected. Furthermore, [buyer] had made it clear that in its opinion the storage invoices differed from delivery invoices, because the furniture was delivered according to a different combination at its request. [Buyer] also stated that it had been allowed a respite in payment until it requested delivery. According to the understanding of a reasonable person in this position, [plaintiff] should have understood that [buyer] was not prepared to acknowledge the invoices listed in the notices of assignment as binding debts.

It is therefore irrelevant whether, as has been alleged by [plaintiff], [buyer's manager] indeed told one of [plaintiff]'s employees in the spring of 1993 that all assignments, past, present and future, would be accepted by the [buyer]. Even if [buyer's manager] had issued such a statement, this would not constitute a declaratory acknowledgement of indebtedness, because the acknowledgement would only refer to the transfer of debt, not to the debt itself.

A declaratory acknowledgement issued in the spring of 1993 or on 24 October 1994 could - furthermore - not have resulted in a preclusion of rights under 1396 AGBG [*]. Some Austrian scholars - but not the OGH [*] - do interpret 1396 AGBG in the way that a declaratory acknowledgment can lead to an exclusion of rights under the prerequisite that the assignee is acting in good faith and debtor acknowledges the debt. However, this is with respect to defenses known to the debtor at the time of [seller]'s declaration, and moreover requires that the assignee has acted in reliance on such a statement (Schwimann-Honsell/Heidinger, 1396 n. 11; cf. Koziol/Welser, ibid, p. 294). Even if the Court were to follow these scholars, a preclusion of rights would fail because the furniture had disappeared unbeknownst to [the buyer]. Furthermore, [plaintiff] has not acted in reliance upon [buyer]'s statement, because the assignment of the debts had occurred before the two declarations were issued.

[...]


FOOTNOTES

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

Translator's note on other abbreviations: ABGB = Allgemeines Bürgerliches Gesetzbuch [Austrian Civil Code]; BGB = Bürgerliches Gesetzbuch [German Civil Code]; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws]; OGH = Oberster Gerichtshof [Supreme Court of Austria]

** Ruth M. Janal, LL.M. (UNSW) is a PhD candidate at Albert-Ludwigs-Universitát Freiburg. She has been an active participant in the CISG-online website of the University of Freiburg.

*** Camilla Baasch Andersen is a Lecturer in International Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London, and a Fellow of the Institute of International Commercial Law of the Pace University School of Law. She is currently finishing her PhD thesis on uniformity of the CISG at the University of Copenhagen.

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