Germany 16 April 1999 District Court Bonn (Paper related products case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990416g1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 10 O 475/97
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany
BUYER'S COUNTRY: Netherlands
GOODS INVOLVED: Paper related products
APPLICATION OF CISG: The Court did not rule on interpretations of the CISG
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
57A [In absence of agreement, payment at seller's place of business]
Descriptors:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
Unavailable
CITATIONS TO TEXT OF DECISION
Original language (German): Unavailable
Translation (English): Excerpts from case translation presented below
CITATIONS TO COMMENTS ON DECISION
Unavailable
excerpts from
Landgericht Bonn 16 April 1999
Translation by Ruth M. Janal [*]
Translation edited by Camilla Baasch Andersen [**]
FACTS OF THE CASE
[The German seller, a paper manufacturer, and the Dutch buyer had a long-standing business relationship. The [buyer]'s manager was also the owner of a third company which acted as a commercial agent for the [seller] in the Netherlands. Following the [buyer]'s severe delay of payment, the parties agreed to set-off the purchase price against future commissions the commercial agent was to receive. As the business development did not meet the expectations, the agent's commissions did not reach the amount of the unpaid purchase price until the business relationship between the [seller], on the one hand, and the [buyer] and [seller]'s agent, on the other hand, was terminated.]
GROUNDS FOR THE DECISION
[…]
The relationship between the parties is governed by German law. Under Art. 28 EGBGB,[***] the law applicable to a contract is that of the State with which the contract has the closest connection - unless stipulated otherwise by the parties. Following the assumption in Art. 28(2) EGBGB the [seller]'s place of business is decisive, as the seller performs the obligation characteristic for a sales contract, that is the delivery of the goods. Under Art. 57(1) CISG, the place of performance for this obligation is the [seller]'s place of business.
[The Court goes on to evaluate the case solely under the German Civil Code. It finds that the [seller]'s claim for payment is legitimate with respect to roughly half the requested amount. The [buyer]'s set-off with commissions allegedly assigned to it by the [seller]'s former agent was deemed invalid, as the [seller] had rightfully invoked the period of limitations with regard to those claims.]
FOOTNOTES
* Ruth M. Janal, LL.M (UNSW) is a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg.
** Camilla Baasch Andersen is a Fellow of the Institute of International Commercial Law of Pace University School of Law and a Lecturer at Queen Mary, University of London.
*** Translator's note on abbreviations: EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law].
All translations should be verified by cross-checking against the original text.
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