Germany 11 November 1998 Appellate Court Celle (Orange juice case)
[Cite as: http://cisgw3.law.pace.edu/cases/981111g1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 9 U 87/98
CASE NAME:
CASE HISTORY: 1st instance LG Bückeburg 3 February 1998 [affirmed]; 3rd instance BGH (VIII ZR 11/99) 6 October 1999
SELLER'S COUNTRY: Portugal (assigned claim to Panama company, plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Orange juice
GERMANY: Oberlandesgericht Celle 11 November 1998 Case law on UNCITRAL texts (CLOUT) abstract no. 274 Reproduced with permission from UNCITRAL A Portuguese seller of orange juice assigned its claim against a Dutch buyer, defendant, to a
Panamanian company, plaintiff, which sued for the outstanding purchase price. The defendant sought
set-off with a purchase money claim assigned to it by a German seller, which originated from a
contract of sale with the Panamanian plaintiff. The court of first instance allowed the claim against the
defendant, but denied having jurisdiction as to the set-off. The defendant appealed. The court of appeal confirmed the judgement. According to article 5(1) of the European
Communities Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial
Matters, jurisdiction is dependant upon the place of performance being in Germany. Under the sales
contract that was the source of the set-off claim, private international law led to the application of
German law, which included the CISG (article 1(1)(b) CISG). The court stated that, although the
place of performance originally had been the place of business of the German seller (the assignor), as a
result of the assignment, it had changed to the place of business of the Dutch assignee (article 57(1)(a)
CISG). Although the purchase money claim itself remained unchanged when it was assigned, the
change of the creditor changed the manner of discharge and led to a change in the place of
performance. Consequently, a German court could not have jurisdiction to hear the set-off claim.
APPLICATION OF CISG: Yes [Article 1(1)(b)] APPLICABLE CISG PROVISIONS AND ISSUES Key CISG provisions at issue: Classification of issues using UNCITRAL classification code
numbers:
57A [Place for payment: in absence of agreement, payment at seller's place of business] Descriptors:
CITATIONS TO OTHER ABSTRACTS OF DECISION
German: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=503&step=Abstract>; [2000] Transportrecht Beilage "Internationales Handelsrecht" 18-20
CITATIONS TO TEXT OF DECISION Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/507.htm>; [1999] Praxis des Internationalen Privat- und Vergahrensrechts (IPRax) 456-458; [2000] Oberlandesgerichts-Rechtsprechungsreport Celle 133-135; [2000] Transportrecht, No. 2, 18; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=503&step=FullText> Translation: Unavailable CITATIONS TO COMMENTS ON DECISION English: Gebauer, Uniform Law Review (2000-4) 698 n.101 et seq.; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 428 French: Rosch, Dalloz, Cahier Droit des Affairs (30 November 2000) No. 42/7007, 437-438 German: Gebauer, [1999] Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 432Case abstract
Classification of issues present
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Institute of International Commercial Law - Last updated February 21, 2007