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CISG CASE PRESENTATION

Germany 11 November 1998 Appellate Court Celle (Orange juice case)
[Cite as: http://cisgw3.law.pace.edu/cases/981111g1.html]

Primary source(s) of information for case presentation: UNCITRAL abstract

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Case identification

DATE OF DECISION: 19981111 (11 November 1998)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 9 U 87/98

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

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


Case abstract

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.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(b)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 57(1)(a) [Also cited: Article 1(1)(b) ]

Classification of issues using UNCITRAL classification code numbers:

57A [Place for payment: in absence of agreement, payment at seller's place of business]

Descriptors: Payment, place of ; Jurisdiction or venue

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

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) 432

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Pace Law School Institute of International Commercial Law - Last updated February 21, 2007
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