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CISG CASE PRESENTATION

Switzerland 23 November 1998 District Court Weinfelden (Milking machinery case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/981123s1.html]

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

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Case identification

DATE OF DECISIONS: 19981123 (23 November 1998)

JURISDICTION: Switzerland

TRIBUNAL: BG Weinfelden [BG = Bezirksgericht = District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: A. Sch. v. J.T. AG

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Milking machinery


Case abstract

SWITZERLAND: Bezirksgericht Weinfelden 23 November 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 264

Reproduced with permission from UNCITRAL

A German seller, plaintiff, sold milking machines to a Swiss buyer, defendant, and the parties agreed that the contract was to be governed by German law.

The court held that, although the CISG is part of German law, when choosing German law, the parties had in mind not the CISG but the German Civil Code. The court therefore applied the rules of the German Civil Code.

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Classification of issues present

APPLICATION OF CISG: No [Article 6]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6A [Exclusion of Convention by contract: choice of law of Contracting State held not to be choice of Convention]

Descriptors: Applicability ; Choice of law

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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=371&step=Abstract>

German: Schweizerische Zeitschift für Internationales und Europäisches Recht (SZIER)/Revue suisse de droit internaitonal et de droit européen (1999) 198-199

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/428.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=371&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Lower District Court (Bezirksgericht) Weinfelden

23 November 1998

Translation [*] by Jan Henning Berg [**]

REASONING OF THE COURT

1. [Factual background]

[Seller] charged the [Buyer] for the following deliveries of materials:

[...]

The invoices had been issued for certain components of milking-machines, with which [Buyer] deals. Business relations between the parties date back to 1989. Between 1989 and 1993 there had been 118 business transactions (sales of goods) which amounted to a total volume of Deutsche Mark [DM] 165,000.

Since [Seller] runs its technical wholesale business in Grönenbach, Germany, these transactions required carriage of the goods. Costs for shipment were borne by [Buyer]. It settled the corresponding accounts directly with the shipping company.

[Seller] issued notes of delivery in respect of the goods that were turned over to the carrier ([Seller]'s exhibits 3, 7, 13, 18, 21, 26 and 31). The shipping company's personnel affirmed receipt of the goods through their signature. However, four positions ("backlog") need to be excluded from this procedure ([Seller]'s exhibits 3 and 18). Backlog from [Seller]'s exhibit 3 was satisfied by delivery dated 21 March 1994 ([Seller]'s exhibits 5 and 7), while backlog from [Seller]'s exhibit 18 was performed by delivery from 29 April 1994 ([Seller]'s exhibits 19 and 21). Only one invoice was issued for either case.

2. [Position of the parties]

[Seller] requests [Buyer] to pay the issued purchase price and additional interest.

[Buyer] alleges not to ever have received any of these deliveries.

3. [Applicable law]

First, the applicable law has to be determined.

      a) According to the Sales and Shipping Conditions introduced by [Seller] (exhibit 35), the law of the Federal Republic of Germany applies, whereas [Buyer] has not agreed to them by signature. However, [Buyer] does not contest [Seller]'s assertion that German law was effectively agreed upon in the course of the parties' enduring business relations. Therefore, a choice of German law must be considered.

      b) It is to be determined in a second step whether the CISG -- which is basically applicable to the present case -- is embodied by the term German law. Both Germany and Switzerland are signatories to the United Nations Convention on Contracts for the International Sale of Goods (CISG). Thus, it is part of the German law applicable to international issues.

Now, when the parties declared German law to be applicable, they probably did not intend to apply the CISG, but the BGB [*] (cf. Honsell, Obligationenrecht BT, p. 101). Consequently, the present dispute is to be adjudicated according to provisions of the BGB rather than under those set out in the CISG. This question, however, is without practical relevance for the [Seller]'s principal claim at hand.

4. [Seller performing contract by handover of goods to carrier]

The [Buyer] does not contest the fact that the [Seller] turned over the goods in question to the carrier. This is proven by the delivery notes mentioned before. The crucial point is whether the [Seller] already performed its obligation under the contract to deliver the goods when it turned them over to the carrier.

According to 269 BGB [*], performance must be effected at the debtor's residence ( 269(1)). If an obligation is being established from within the debtor's business enterprise then its place of business must be considered as place of performance. Following from this provision, [Seller] is the debtor in the case at hand since it had to deliver the goods to the [Buyer]. Under 269 BGB delivery of the goods in [a particular location] would be generally sufficient. After all, in regular commercial intercourse a debtor merely has the duty to send the goods towards the other party (Palandt, Bürgerliches Gesetzbuch, 43th ed., N 3a zu 269 BGB). That however does only constitute a secondary obligation for the [Seller] to care for shipment. This obligation is properly fulfilled by handover of the goods to the carrier (Palandt, N 2 zu 447 BGB). 447 BGB [*] provides for the passing of risk to the buyer by the time when the seller tenders the goods to the carrier. The duty to hand over the goods to the carrier can only be violated by the seller if it acts culpably in choosing the carrier or the means of carriage (Palandt, N 4 h) bb) zu 433 BGB).

[Buyer] does not argue that [Seller] had chosen the carrier without the required care. Any such assertion would hardly be convincing: Goods worth DM 165,000 had been delivered in the context of the parties' business relations through the years. Thus, [Seller] complied with its obligations. The claim for payment of the issued purchase price is therefore due. [Seller]'s action is justified.

In view of the above reasoning, there is no need to determine whether the carrier actually delivered the goods to the [Buyer]. Should [Buyer] want to stick to this position then it would have to call upon the carrier.

5. [Appropriate interest rate]

[Seller] requests payment of 5 % interest since 1 July 1994. The statutory interest rate is at 4 % according to 246 BGB [*]. This also applies for interest on late payment ( 288 BGB). A situation of late payment requires either the issuing of a reminder or an exactly determined time to have elapsed ( 284 BGB). The [Seller]'s Standard Business Conditions, however, only mention an abstract "deadline for payment", but of course not any exact date. A reminder was issued only on 5 December 1994 ([Seller]'s exhibit 36). Consequently, the claim is justified in the amount of DM 9,360.39 plus 4 % interest since that day, 5 December 1994.


FOOTNOTES

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

Translator's note on other abbreviations: B = Bürgerliches Gesetzbuch (German Civil Code).

** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück.

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Pace Law School Institute of International Commercial Law - Last updated August 30, 2006
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