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CISG Article 78: Endless disagreement among
commentators, much less among the courts

Francesco G. Mazzotta
July 2004

Appendix 7

GERMANY

Courts

AG Amtsgericht Petty District Court
LG Landgericht District Court
OLG Oberlandesgericht Provincial Court of Appeal
KG Kammergericht Upper Court Berlin

Codes

EGBGB Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche German code on the conflict of laws.
HGB Handelsgesetzbuch German commercial code.
BGB Bürgerliches Gesetzbuch German civil code
ZPO Zivilprozeßordnung German code on civil procedure
CC Codice Civile Italian civil code

Law reviews

JL&C Journal of Law and Commerce
NJW-RR Neue Juristische Wochenschrift Rechtsprechungs-Report
IPRax Praxis des internationalen Privat- und Verfahrensrecht

1. LG Stuttgart, August 31, 1989, available at <http://cisgw3.law.pace.edu/cases/890831g1.html>.

Original language:     
Translation:
German
Available

Court (translation): "The CISG does not fix the rate of interest. This is a controversial subject. It is advisable to fall back on the national law of the creditor because the consequences of the debtor's non-fulfillment of his payment obligation take effect there and payment was due in Italian currency. Therefore, the debtor must carry the risk of paying the monetary debt in the foreign currency according to the rate of interest there (References: Stoll in Schlechtriem, Einheitliches Kaufrecht und nationals Obligationenrecht, 1987, 279/280, 291; Schlechtriem, Einheitliches UN- Kaufrecht, 1981, 93/94)."

2. LG Aachen, April 3, 1990, available at <http://cisgw3.law.pace.edu/cases/900403g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The court awarded interest rate of 12% for the period of delayed payment as average bank lending rate at the seller's place of business (Arts. 61(1)(b), 74 and 78 CISG)."

3. AG Oldengurg in Holstein, April 24, 1990, available at <http://cisgw3.law.pace.edu/cases/900424g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"Further the court held that the seller was entitled to interest accruing from when the payment was due (Arts. 59 and 78 CISG) at the statutory rate of interest in force in the seller's country (Italy). The court awarded additional interest as damages (Arts. 78 and 74 CISG)."

JL&C abstract: "The interest claim [in this case] is well-founded under CISG, Articles 59, 78, 74 .... Because of its rights under CISG, Article 78, [the seller] is entitled to interest at the legal rate of 5% pursuant to Article 1274(1) Codice Civile. The higher interest claim asserted by the [seller] is also well-founded. This follows from CISG, Article 78 [which preserves the right to damages under Article 74]. According to this provision the seller can assert larger interest claims resulting from the fact that the seller could not invest the purchase price or had to borrow funds."

4. LG Frankfurt, May 2, 1990, available at <http://cisgw3.law.pace.edu/cases/900502g1.html>.

Original language:     
Translation:
German
Unavailable

5. LG Hildesheim, July 20, 1990, available at <http://cisgw3.law.pace.edu/cases/900720g1.html>.

Original language:     
Translation:
German
Unavailable

6. LG Hamburg, September 26, 1990, available at <http://cisgw3.law.pace.edu/cases/900926g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The court awarded the seller the purchase price plus interest accruing from the maturity date of the bill of exchange. As CISG does not expressly specify the rate of interest payable, the court in order to determine the rate referred to Italian law as the law of the creditor's place of business. Although the Italian statutory rate was 5%, the court awarded additional damages to the seller and the interest finally awarded was 13%, being the Italian discount rate."

CLOUT abstract: "[I]nterest was awarded under article 78 CISG at the statutory Italian rate plus additional interest as damages under article 74 CISG assessed on the basis of the Italian discount rate."

JL&C abstract: "The amount of the interest claim under CISG, Article 78 is to be obtained from Article 1284(1) Codice Civile. According to this [provision] the Italian legal rate is 5%. Article 1284(1) Codice Civile is applicable, since the question of the amount of interest, which was intentionally left open in CISG, Article 78, has to be determined according to the applicable national as determined by the rules of conflict of laws. To the extent that the interest claim exceeds the rate of 5% awardable under CISG, Article 78, it is based on CISG, Article 74."

7. LG Bielefeld, January 18, 1991, available at <http://cisgw3.law.pace.edu/cases/910118g1.html>.

Original language:     
Translation:
German
Unavailable

8. OLG Frankfurt, June 13, 1991, available at <http://cisgw3.law.pace.edu/cases/910613g1.html>.

Original language:     
Translation:
German
Unavailable

CLOUT abstract:

"As regard the rate of interest, the court referred to the widely prevailing view that the law of the country of the seller (the creditor) applied, but mentioned the opposite view according to which the debtor's law should apply. The court did not take a final stand on that controversy since in the case at hand the statutory rates of interest in both laws were identical."

JL&C abstract:

"Since the rate of interest was not stipulated under CISG, Article 78, according to German international private law the rate of interest on the claim for the purchase price is governed by French Law. Referring to the predominant legal opinion, the legal rate applicable to money claims at the seller's domicile determines the interest rate pursuant to CISG, Article 78. . . . A deviating opinion is given by [the commentator] Stoll, according to whom the amount of interest has to be determined under the domestic law of the debtor. He argues that the duty to pay interest aims at preventing the debtor from deriving advantage by withholding sums due and investing the money [rather than paying the amount owed]; on the other hand, [others argue] that interest is given as compensation to the creditor, in the amount proper under the domestic law of the seller's country. The court, however, need not decide [which law determines the interest rate] because it does not affect the outcome of the case."

9. LG Frankfurt, September 16, 1991, available at <http://cisgw3.law.pace.edu/cases/910916g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller] is the holder of a claim for payment of 5% accrued interest since 16 May 1990 and 10% accrued interest since 16 December 1991. According to Art. 78 CISG, one party can claim payment of accrued interest if the other party does not meet his obligation to pay the due and payable purchase price. It is sufficient enough that such a mature claim has not been paid at the agreed payment day. Further, it is worth noting that there is no need for a default under German law (see Eberstein, in: Schlechtriem, Art. 78 No. 11 CISG). .... The level of the interest rate has not been set forth in Art. 78 CISG. Consequently, the relevant obligor is to pay the interest rate which is due and payable pursuant to the relevant national substantive law of the creditor (see LG Stuttgart, op. cit., p. 985 providing further literature references; Asam/Kindler, Indemnification of any interest and/or money devaluation damages under the CISG, RIW 1989, p. 842; Eberstein, in: Schlechtriem, Art. 78 No. 11 CISG). The [seller] does not have the right to claim any further interest under Art. 74 CISG. The [seller] has not provided evidence for his disputed assertion that he borrows money continuously at an interest rate of 15% per annum. It is hereby irrelevant that the [seller] demonstrated that the discount interest rate was 12.5%, respectively 13.5% in Italy. Furthermore, any agreement to a higher interest rate than what is legally owed would require a document complying with the written form (Art. 1284 Par. 3 Cc). In this case, however, the [buyer] has not provided such a document."

10. LG Baden-Baden, January 13, 1992, available at <http://cisgw3.law.pace.edu/cases/920113g1.html>.

Original language:     
Translation:
German
Unavailable

11. LG Saarbrücken, March 23, 1992, available at <http://cisgw3.law.pace.edu/cases/920323g1.html>.

Original language:     
Translation:
German
Unavailable

12. LG Mönchengladbach, May 22, 1992, available at <http://cisgw3.law.pace.edu/cases/920522g1.html>.

Original language:     
Translation:
German
Unavailable

13. LG Heidelberg, July 3, 1992, available at <http://cisgw3.law.pace.edu/cases/920703g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"In addition, the Court granted the seller the right to interest (Art. 78 CISG). The interest rate was determined in accordance with the law applicable by virtue of German private international law rules. The interest accrued from the expiration of the additional period of time fixed by the seller for performance."

14. OLG Hamm, September 22, 1992, available at <http://cisgw3.law.pace.edu/cases/920922g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"[T]he court held that the seller was entitled to interest on the unpaid price (Art. 78 CISG). The rate of interest was determined by applying German private international law rules."

15. LG Berlin, September 30, 1992, available at <http://cisgw3.law.pace.edu/cases/920930g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The seller recovered further damages arising from the buyer's breach of contract, including legal fees and interest paid for loans (Arts. 74 and 78 CISG)."

16. AG Zweibrücken, October 14, 1992, available at <http://cisgw3.law.pace.edu/cases/921014g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"In addition, the Court awarded the seller interest (Art. 78 CISG) and observed that under CISG the duty to pay interest for delay in payment for the price is not conditional upon formal request. The interest rate was determined in accordance with the law applicable by virtue of German private international rules."

17. LG Göttingen, November 19, 1992, available at <http://cisgw3.law.pace.edu/cases/921119g1.html>.

Original language:     
Translation:
German
Unavailable

18. LG Krefeld, November 24, 1992, available at <http://cisgw3.law.pace.edu/cases/921124g1.html>.

Original language:     
Translation:
German
Unavailable

19. LG Verden, February 8, 1993, available at <http://cisgw3.law.pace.edu/cases/930208g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The Court awarded the assignee the purchase price with interest accruing from the date when payment was due (Art. 78 CISG) .... The interest rate was determined in accordance with the law applicable by virtue of German private international law rules (Italian law as the law of the seller's country)."

20. AG Cloppengurg, April 14, 1993, available at <http://cisgw3.law.pace.edu/cases/930414g1.html>.

Original language:     
Translation:
German
Unavailable

21. LG Krefeld, April 28, 1993, available at <http://cisgw3.law.pace.edu/cases/930428g1.html>.

Original language:     
Translation:
German
Unavailable

22. LG München, May 24, 1993, available at <http://cisgw3.law.pace.edu/cases/930524g1.html>.

Original language:     
Translation:
German
Unavailable

23. LG Aachen, July 28, 1993, available at <http://cisgw3.law.pace.edu/cases/930728g1.html>.

Original language:     
Translation:
German
Unavailable

24. OLG Koblenz, September 17, 1993, available at <http://cisgw3.law.pace.edu/cases/930917g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The court finally found that the seller was entitled on the unpaid price (Art. 78 CISG) and that the interest rate had to be determined by applying German private international law rules which led to the application of French law as the law chosen by the parties. French statutory interest rate was held applicable. According to the court additional damages could be recovered under Art. 74 CISG."

25. LG Hamburg, November 5, 1993, available at <http://cisgw3.law.pace.edu/cases/931105g1.html>.

Original language:     
Translation:
German
Unavailable

26. LG Köln, November 11, 1993, available at <http://cisgw3.law.pace.edu/cases/931111g1.html>.

Original language:     
Translation:
German
Unavailable

27. LG Memmingen, December 1, 1993, available at <http://cisgw3.law.pace.edu/cases/931201g2.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"Finally, the Court held that the seller was entitled to interest and to further damages according to Arts. 78 and 74 CISG. The Court left open the question of the determination of the applicable interest rate but awarded interest at the rate reported on a bank certificate submitted by the seller."

28. OLG Düsseldorf, January 14, 1994, available at <http://cisgw3.law.pace.edu/cases/940114g1.html>.

Original language:     
Translation:
German
Available

29. OLG Frankfurt, January 18, 1994, available at <http://cisgw3.law.pace.edu/cases/940118g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The interest claim is well-founded only to the extent of 10%. The claim is justified on grounds of CISG, Article 78. Pursuant to this article, the contracting party in default either as to payment of the purchase price or any other amount due has to pay interest rates for the sum owing (von Caemmerer-Eberstein, Article 78, Rn. 9, 10; Herber/Czerwenka, Article 78, Rn. 3; Asam RIW1989, 942, 945).... Since the amount of recoverable interest has been left unregulated in CISG, Article 78 (as opposed to EKG [ULIS] Article 83), according to the predominant legal opinion, pursuant to German international private law, the domestic German Law is applicable (see comments in Senat, Urt. v. 13. Juni 1991 -- 5 U 261/90 -- NJW 1991, 3102). In the case before the court, pursuant to Article 28(2) EGBGB, Italian law is applicable to the claim for the purchase price and it also governs the accompanying interest claim. According to the isolated deviating opinion by Stoll (Festschrift für Ferid, 1988, 495, 509f.; similar: von Caemmerer-Leser, Article 84, Rn. 13 on the obligation to pay interest under CISG Article 84(1)), the legal rate [of interest] has to be determined by the domestic sales law of the debtor. Whether or not Stoll's opinion has to be followed did not have to be decided in the [previous] ruling of this court rendered on June 13, 1991, because in that case the [seller] at the very beginning limited her interest claim to 5%, a rate that is justified both under German and under French Law. In this case, however, the court has to decide according to the prevailing legal opinion. Since the amount of interest intentionally is not prescribed in the Convention, the answer can only be taken from the rules of international private law. Absent any point of reference, no principle can be derived from the Convention such as saying that the domicile of the debtor would be decisive, because the duty to pay interest was aimed at preventing the withholding of money from being advantageous to the debtor (Stoll as referred to above [Festschrift für Ferid, supra]) who still has the possibility to use or invest the funds as compared to payment. Furthermore, this argument is not persuasive, since it is not guaranteed that the domestic legal rate [of interest] fully compensates for (see 352 HGB) the advantage of non-payment and any other calculation of interest would erase the dividing line [between interest and] damages. The practical disadvantage of eventually being obliged to investigate foreign law to calculate the interest has to be accepted because of the partial incompleteness of the Convention arising from unsettled disputes during the negotiation process (Herber/Czerwenka, Article 78, Rn. 1). Besides, disadvantage can be diminished by the availability of adequate charts (Piltz, 5, Rn. 415).... The [seller's] claim for default interest at an amount of 13.5% could not be awarded. CISG, Article 78 does not bar a claim for damages under CISG, Article 74 to recover additional loss resulting from finance charges (Herber/Czerwenka, Article 78, Rn. 8). However, the [seller] has no shown evidence of any further loss caused by using credit (as to the burden of proof: von Caemmerer-Stoll, Article 74, Rn. 41). The submitted certificates issued by the Banca d'ltalia only refer to the discount [rate] fluctuations."

30. KG Berlin, January 24, 1994, available at <http://cisgw3.law.pace.edu/cases/940124g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"To the extent stated in the decision's tenor, the [seller]'s assignee may claim interest on the purchase price as compensation under Arts. 78 and 74 CISG, from the time payment was due according to Art. 58 CISG. A payment notice was not necessary for this claim to arise. According to the parties' agreement, the purchase price was due sixty days after the date on which the invoice was issued. The interest rate is determined by the national law and its prerequisites (cf. v.Caemmerer/Schlechtriem/Eberstein, Art. 78 n. 111 and Asam/Kindler, op. cit.). It follows from the bank certificate that [seller]'s assignee had to pay interest on the amount stated in the decision."

31. LG Düsseldorf, February 10, 1994, available at <http://cisgw3.law.pace.edu/cases/940210g1.html>, case number 6 U 32/93.

Original language:     
Translation:
German
Available

Court (translation):

"Within the scope of the main claim, to which the [seller] is entitled, it is at any rate entitled, under CISG Art. 78, to interest for the asserted period of time. In this regard, the interest rate is calculated under French law, which, according to the contract and EGBGB Arts. 28(1) and (2), applies to the contract at issue."

32. LG Düsseldorf, February 10, 1994, available at <http://cisgw3.law.pace.edu/cases/940210g2.html>, case number 6 U 119/93.

Original language:     
Translation:
German
Available

Court (translation):

"The interest granted by the District Court at a rate of 5% from 27 November 1992 (date of service of the claim), the amount of which is not disputed by the [buyer], is founded under Art. 78 CISG in connection with 352 HGB and 291 BGB. Under Art. 78 CISG, if the buyer fails to pay the purchase price, the seller is entitled to interest on it. The interest rate is not provided for in the Convention, but is to be settled in conformity with the law applicable by virtue of the rules of private international law (cf. v.Caemmerer/Schlechtriem, CISG-Kommentar, Munich 1990, Art. 78 n. 3). As both parties rely on German law for the legal dispute, they have formed an implicit agreement on the applicability of German law (Art. 27(1) sent. 2 EGBGB). The [buyer] is therefore obliged to render the commercial interest rate of 5% from the time of the service of the claim ( 352 HGB, 291 BGB). The result would not be any different if - due to a lack of choice of law - Italian law was to apply to the sales contract following Art. 28(1) and (2) EGBGB. According to Art. 1282, 1284(1) CC the legal interest rate for sums in arrears is also 5%."

33. OLG München, March 2, 1994, available at <http://cisgw3.law.pace.edu/cases/940302g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The claim for interest is based on Art. 78 CISG, since the [buyer] failed to pay the purchase price due under Art. 58 CISG. Following Art. 28(2) sent. 1 EGBGB, the rate of interest is determined by Swedish law, as the [seller]'s obligation is the one characteristic of a sales contract. Under Swedish law, the [seller] is entitled to interest at a rate of 8% on top of the discount rate of the Swedish State bank, par. 6 Räntelag (1975: 635) (cf. Högland, Sveriges Rikes Lag, date: 1 January 1991, p. 530/531). There, a surcharge ("tillägg", cf. Parsenow, Fachwörterbuch für Recht und Wirtschaft Schwedisch/Deutsch Deutsch/Schwedish, 2nd ed., p. 168) of 8% ("atta", cf. Kornitzky, Taschenwörterbuch Schwedisch/Deutsch, 1958, p. 521) is fixed. Therefore, the lower interest rate referred to in the literature (cf. Fischler/Vogel, Schwedisches Handels- und Wirtschaftsrecht mit Verfahrensrecht, 3rd ed. 1978, p. 94) is incorrect."

34. OLG Frankfurt, April 20, 1994, available at <http://cisgw3.law.pace.edu/cases/940420g1.html>.

Original language:     
Translation:
German
Unavailable

CLOUT abstract:

"The appellate court ordered the [buyer] to pay the purchase price (CISG 78) and interest at the rate of 5%, which is the statutory interest rate under both German and Swiss law."

35. LG Giessen, July 5, 1994, available at <http://cisgw3.law.pace.edu/cases/940705g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"In addition, the seller was entitled to interest, according to Art. 78 CISG. The rate of interest was determined by applying German private international law rules, which led to the Italian statutory interest rate."

36. AG Nordhorn, June 14, 1994, available at <http://cisgw3.law.pace.edu/cases/940614g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller]'s claim for interest is justified under Art. 78 CISG. According to that provision, interest is due from the time the claim was mature; a reminder of payment is not necessary. Consequently, it would have been up to the [buyer] to submit that the parties reached a different agreement regarding the payment of interest. As the [buyer] failed to make an according submission, the interest was granted according to the [seller]'s request. The legal interest rate in Italy is 10% pursuant to Art. 1284 Codice civile."

37. LG Kassel, July 14, 1994, available at <http://cisgw3.law.pace.edu/cases/940714g1.html>.

Original language:     
Translation:
German
Unavailable

38. LG Düsseldorf, August 25, 1994, available at <http://cisgw3.law.pace.edu/cases/940825g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The Court stated that the seller was entitled to interest on the price. As CISG does not determine the rate of interest the Court held that the rate was to be determined in accordance with the law otherwise applicable to the contract."

39. AG Riedlingen, October 21, 1994, available at <http://cisgw3.law.pace.edu/cases/941021g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The claim for interest is based on Art. 78 CISG in connection with Art. 1284 I Codice Civile (Italian Civil Code). The higher rate of interest requested by the [seller] has been disputed by the [buyer], and the [seller] did not render any proof of the higher rate of interest."

40. LG Darmstadt, October 25, 1994, available at <http://cisgw3.law.pace.edu/cases/941025g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"As to the interest the court held that the seller was entitled to interests. Since CISG does not determine the rate of interest the court stated that the rate was to be determined in accordance with the domestic law applicable in the seller's country."

41. LG Oldenburg, November 9, 1994, available at <http://cisgw3.law.pace.edu/cases/941109g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller] is entitled to interest under Art. 78 CISG. As the CISG does not regulate the interest rate, reference is to be made to the national law to be determined by the EGBGB (OLG Frankfurt, NJW 94, 1013; Schwenzer, NJW 90, 602, 606 et seq.). In this case, with an Italian seller, Italian law applies.... The [seller] has not shown that it suffered losses higher than the legal interest rate of 10% that applies in this case."

42. OLG Hamm, February 8, 1995, available at <http://cisgw3.law.pace.edu/cases/950208g3.html>.

Original language:     
Translation:
German
Unavailable

CLOUT abstract:

"The court also awarded 10% interest on the sum to be paid by the [buyer] (art. 78 CISG). As the CISG does not provide for a specific interest rate, the court took recourse to the governing contract law .... The requested interest at the rate of 14% could have been recovered under article 74 CISG only if the [seller's assignee] had not failed to prove the higher interest damage."

Unilex abstract:

"The Court held that the bank was entitled to recover interest on price, according to Art. 78 CISG. The Court further held that, as CISG does not determine the interest rate, the bank was entitled, according to German rules of private international law."

43. LG München, February 8, 1995, available at <http://cisgw3.law.pace.edu/cases/950208g4.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller's] claim is admissible and successful. The adjudicated main amount is owed to the [seller] as the contractually agreed upon price for the sale and use of the Graphiplus software programme. Additionally, the [seller] is entitled to the requested interest on the amount after the date of maturity (Art. 78 CISG, 352 HGB)."

44. LG Oldenburg, February 15, 1995, available at <http://cisgw3.law.pace.edu/cases/950215g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The Court finally awarded interest to the seller pursuant to Art. 78 CISG. As CISG does not indicate the interest rate, the Court referred to German private international law rules to ascertain the applicable law for the determination of the interest rate."

45. AG Wangen, March 8, 1995, available at <http://cisgw3.law.pace.edu/cases/950308g2.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The Court argued that .... interest was payable according to Art. 78 CISG. In determining the applicable rate of interest the Court awarded a rate of 10% as the statutory rate usually adopted in the seller's country for unsecured bank loans. According to the Court, the seller was not entitled to the higher interest rate of 16,5 as further damages, since it should have applied for obtaining a bank loan at the average market rate."

46. LG München, March 20, 1995, available at <http://cisgw3.law.pace.edu/cases/950320g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller] is entitled to interest for the mature claims for payment of the purchase price without having to send a reminder of payment, Art. 78 CISG. Since the [seller] did not prove the (contested) rate of interest by submitting a confirmation of his bank, [seller] is only granted 10% interest under Art. 1284(1) C.c. Italian law must also be applied in this respect to fill a gap in the Convention."

47. LG Landshut, April 5, 1995, available at <http://cisgw3.law.pace.edu/cases/950405g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [buyer's] claim for interest is based on Art. 84(1) CISG. The purchase price was paid in the year 1993; therefore, the claim for interest exists since 25 January 1994. The rate of interest is not regulated by Art. 84 CISG. Also, in Art. 78 CISG no mention is made of the rate of interest. According to the prevailing opinion, the rate of interest within the scope of Art. 78 CISG is governed by the applicable national law, which is determined by the rules of private international law. This notion is also applicable to Art. 84 CISG. Thus, the applicable law of the contract needs to be is determined in accordance with Art. 27 et seq. EGBGB. According to Arts. 32(1) no. 3 and 27(1) EGBGB, the parties can choose the applicable law. By both parties pleading the provisions of the BGB from the beginning, they have chosen German law. This contract regarding the choice of law has been validly concluded under Art. 27(4) EGBGB. Thus, the provisions of the German law apply. The rate of 11.5% interest was disputed. As the [buyer] has not proven [the interest rate], the legal provisions apply. According to 352 I HGB, the legal interest rate is 5% for mutual commercial transactions. Both [buyer] and [seller] are merchants in accordance with 1 II no. 1 HGB. The conclusion of the sales contract at issue is part of the commercial business of both parties, 343 HGB. Thus, the rate of interest is 5%.... The [buyer's] claim for interest is provided basically by Art. 78 CISG. According to the prevailing opinion, Art. 78 CISG also applies to claims for damages (cf. von Caemmerer / Schlechtriem - Eberstein/Bacher, Kommentar zum einheitlichen UN-Kaufrecht, Art. 78, Annotation 15). The claim comes into existence with the occurrence of the loss. On 25 January 1994, the asserted loss had already occurred. The interest rate of 5% is applicable, as already stated above, from 352 I, sentence 1, HGB."

48. AG Bayreuth, May 2, 1995, available at <http://cisgw3.law.pace.edu/cases/950502g3.html>.

Original language:     
Translation:
German
Unavailable

49. AG Alsfeld, May 12, 1995, available at <http://cisgw3.law.pace.edu/cases/950512g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The seller was awarded interest on the price (Art. 78 CISG). As to the applicable interest rate, the Court considered this to be a question governed by the CISG but not expressly settled in it (Art. 7(2) CISG). According to German private international law rules it applied the Italian statutory rate, being Italian law otherwise applicable to the contract. A higher interest rate as further damages was not awarded since the seller did not provide sufficient evidence of recourse to bank loans."

50. LG München, May 29, 1995, available at <http://cisgw3.law.pace.edu/cases/950529g1.html>.

Original language:     
Translation:
German
Unavailable

51. LG Kassel, June 22, 1995, available at <http://cisgw3.law.pace.edu/cases/950622g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The Court finally held that interest was payable according to Art. 78 CISG. Absent an express provision in CISG, the Court held that the interest rate was to be determined in accordance with the law otherwise applicable to the contract and not with the law of the creditor's country."

52. OLG München, June 28, 1995, available at <http://cisgw3.law.pace.edu/cases/950628g1.html>.

Original language:     
Translation:
German
Unavailable

53. OLG Frankfurt, July 5, 1995, available at <http://cisgw3.law.pace.edu/cases/950705g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The decision on interest falls under Art.78 CISG; other issues fall under 97, 708 No. 10, 713, 546(2) ZPO old version"

54. LG Aachen, July 20, 1995, available at <http://cisgw3.law.pace.edu/cases/950720g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"In Art. 78 CISG there is a regulation for interest. This provision is applicable in principle, as Art. 4, sentence 1, CISG stipulates that the Convention governs all rights and obligations of the seller and the buyer arising from the contract of sale. This provision [Art. 78 CISG] provides only for an obligation to pay interest. This norm does not say anything about the interest rate to be paid. Thus there is a gap in the law; there is dispute about how to fill it. It has been argued that the interest rate must be determined by having recourse to the general principles of the CISG in order to achieve an internationally uniform regulation (cf. Eberstein/Bacher in von Caemmerer / Schlechtriem, Kommentar zum einheitlichen UN-Kaufrecht, 2nd ed., Art. 78, Annotation 21, Footnote 30). Against this, it has been argued that a uniform solution could not be achieved at the conferences for the drafting of the CISG, as the different opinions about the interest obligation were irreconcilable (cf. op. cit., Annotation 2). Preferable is the opinion that the interest rate is to be taken from the applicable national law supplementing the CISG, which in turn is to be determined in accordance with the conflict of laws rules of the forum State (cf. op. cit., Annotation 21, Footnote 31). According to German private international law, the interest rate is determined - even though this is not undisputed (cf. Palandt/Heldrich, BGB, 54th ed., Art. 32 EGBGB, Annotation 5) - according to the law governing of the contract; thus, according to the law which would be applicable to the sales contract if the contract were not subject to the Convention. According to Art. 28 EGBGB, the law of the State which has had the closest connection with the contract would have to be applied (Art. 28 I 1 EGBGB). Thereby one has to look to the characteristic performances under the contract (cf. Art. 28 II 1 EGBGB, respectively Art. 4 II EVU). With contracts of sales, therefore, the law of the State where the seller has its main place of business is applicable (cf. Palandt-Heldrich, op. cit., Art. 28 EGBGB, Annotation 8). Thus, Italian law applies to the interest rate. In Italian law - insofar equivalent to the German regulation - there is a distinction between the legal interest rate and an interest rate based on damages caused by delay. Since under Art. 1284 I Codice Civile (Italian Civil Code) the legal interest rate is already 10%, there is no objection to the requested interest rate in the present case. The point in time from which interest is owed is derived from Art. 78 CISG. According to this provision, the maturity of the obligation to pay the price or any other sum in arrears is sufficient for the right to request interest. A default must not be present (cf. Eberstein/Bacher, op. cit., Annotation 9 to Art. 78). The pre-trial costs have to be reimbursed under Art. 78 CISG in connection with Arts. 74, 61(1)(b) CISG. "

55. OLG Rostock, July 27, 1995, available at <http://cisgw3.law.pace.edu/cases/950727g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"In accordance with Art. 78 CISG, the [seller] can request from the [buyer] the payment of 7% interest on the purchase price debt since 1 December 1992. The only prerequisite for the obligation to pay interest is that the purchase price is due (cf. von Caemmerer/Schlechtriem/Eberstein/Bacher, op. cit., Art. 78, Annotation 9). According to Art. 58(1) CISG, the purchase price in the amount of DM 10,146.99 became due not later than 1 December 1992. Due to the absence of a different regulation in the CISG, the interest rate is regulated by the national law to which the rules of the private international law refer (cf. von Caemmerer/Schlechtriem/Eberstein/Bacher, op. cit., Art. 78, Annotations 26, 27). According to Art. 32(1) (No. 3) EGBGB, Danish law has to be applied. Under this law, the interest rate while in default amounts to 6% p.a. above the respective discount rate of the Danish National Bank ( 3, 5 Renteloven [Law on Interest]). The [seller] has not stated how high the discount rate of the Danish National Bank has been since 1 December 1992. The [seller] also did not prove that the claimed default damage of 12% occurred. The Court estimates that the discount rate of the Danish National Bank was at least 1%, so that a unified interest rate of 7%."

56. LG Kassel, September 21, 1995, available at <http://cisgw3.law.pace.edu/cases/950921g1.html>.

Original language:     
Translation:
German
Unavailable

57. AG Kehl, October 6, 1995, available at <http://cisgw3.law.pace.edu/cases/951006g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The claim for interest is legitimate pursuant to Art. 78 CISG. According to this provision, the party that fails to pay the price or any other sum in arrears shall pay the other party [at maturity] interest on these amounts. Pursuant to Arts. 58, 59 CISG, the purchase price for the sweaters delivered on 8 December 1992 became due prior to the date from which the [seller] requests interest (9 January 1993). Since Art. 78 CISG does not provide for an interest rate, the matter is to be settled in conformity with the law applicable by virtue of the rules of German private international law (see OLG Frankfurt a. M., NJW (1994) 1013 at 1014).... Therefore, Italian law governs the obligation to pay the purchase price under Art. 28(2) EGBGB, and it also applies to the accompanying claim for interest. Pursuant to Article 1284 Cc, the interest rate is 10% since 16 December 1990 (see OLG Frankfurt a. M, NJW (1994) 1013 at 1014)."

58. LG Trier, October 12, 1995, available at <http://cisgw3.law.pace.edu/cases/951012g1.html>.

Original language:     
Translation:
German
Available

59. LG Krefeld, December 19, 1995, available at <http://cisgw3.law.pace.edu/cases/951219g1.html>.

Original language:     
Translation:
German
Unavailable

60. LG Bochum, January 24, 1996, available at <http://cisgw3.law.pace.edu/cases/960124g1.html>.

Original language:     
Translation:
German
Available

61. AG Augsburg, January 29, 1996, available at <http://cisgw3.law.pace.edu/cases/960129g1.html>.

Original language:     
Translation:
German
Available

Unilex abstract:

"The Court held that the seller was entitled to interest on the purchase price accruing from the dates on which the different payments were due (Arts. 59 and 78 CISG)... With respect to the interest rate, the Court held that it was to be determined by the domestic law otherwise governing the contract. Thus, German private international private law rules led to the application of the Swiss statutory interest rate, Swiss law being the law of the seller's place of business."

62. LG Kassel, February 15, 1996, available at <http://cisgw3.law.pace.edu/cases/960215g1.html>.

Original language:     
Translation:
German
Unavailable

63. LG Kassel, February 15, 1996, available at <http://cisgw3.law.pace.edu/cases/960215g2.html>.

Original language:     
Translation:
German
Unavailable

64. LG Oldenburg, February 8, 1996, available at <http://cisgw3.law.pace.edu/cases/960228g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The Court also stated that the buyer was entitled to interest at the German statutory rate (Art. 78 CISG), being German law applicable by virtue of the German of choice of law rules."

65. LG Düsseldorf, March 5, 1996, available at <http://cisgw3.law.pace.edu/cases/960305g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex database:

"The seller was finally awarded the purchase price and interest according to Art. 78 CISG at the rate of 16.5%, as it had proved it had recourse as its place of business to a bank loan in Italian Lire at this rate of interest."

66. OLG Frankfurt, March 15, 1996, available at <http://cisgw3.law.pace.edu/cases/960315g2.html>.

Original language:     
Translation:
German
Unavailable

67. Schiedsgericht der Handelskammer [Arbitral Tribunal] Hamburg, March 21, 1996, available at <http://cisgw3.law.pace.edu/cases/960321g1.html>.

Original language:     
Translation:
German
Available

Arbitral Tribunal (translation):

"The claim to interest arises ex Art. 78 CISG. As to the interest rate, national law applies subsidiarly, in the absence of a more specific regulation [page 42] in the CISG, according to its Art 7(2); here, it is the legal rate for bilateral commercial transactions"

68. LG Oldenburg, March 27, 1996, available at <http://cisgw3.law.pace.edu/cases/960327g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex abstract:

"The seller was thus awarded the contract price (Art. 53 CISG) as well as interest at the Italian statutory rate (Art. 78 CISG), since it had not given evidence of the claimed higher rate of interest."

69. LG Hamburg, June 17, 1996, available at <http://cisgw3.law.pace.edu/cases/960617g1.html>.

Original language:     
Translation:
German
Unavailable

70. AG Bottrop, June 25, 1996, available at <http://cisgw3.law.pace.edu/cases/960625g2.html>.

Original language:     
Translation:
German
Unavailable

Unilex (abstract):

"The Court held that the seller was entitled to interest according to Art. 78 CISG, accruing from the date on which the payment was due according to the invoice. Since CISG does not determine the interest rate, the Court applied the Italian statutory interest rate (10%), observing that Italian law was the law otherwise applicable to the contract. The seller was also granted a higher interest rate of 16,5% as further damages as it had proved a causal connection between its recourse to bank loans and the buyer's late payment."

71. OLG Düsseldorf, July 15, 1996, available at <http://cisgw3.law.pace.edu/cases/960711g1.html>.

Original language:     
Translation:
German
Unavailable

72. LG Bielefeld, August 2, 1996, available at <http://cisgw3.law.pace.edu/cases/960802g1.html>.

Original language:     
Translation:
German
Unavailable

Court (translation):

"The claim for interest on the purchase price is based on Art. 78 CISG. The interest rate is 5% according to 352 HGB."

73. AG Koblenz, November 12, 1996, available at <http://cisgw3.law.pace.edu/cases/96112g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"Contrary to German law, the only prerequisite for a claim for interest under Art. 78 CISG is the maturity of the sum in arrears. Because Article 78 does not define the applicable rate of interest, Article 28 EGBGB leads to the application of Italian law. According to Article 128 of the Italian Civil Code, the statutory interest rate starting from 16 December 1990 is 10%. Nevertheless, the [seller] is entitled to the higher interest rate of 16.5% he requested. Article 78 does not exclude the possibility to demand reimbursement under Art. 74 CISG for losses suffered through a bank credit at a higher rate than the statutory interest rate. In the parallel proceeding before the AG Bottrop [Germany], the [seller] submitted a bank certificate which proves that he is taking credit from his house bank in amounts exceeding the purchase price at an interest rate of at least 16.5%". The [seller] is therefore entitled to interest at the rate of 16.5%."

74. LG München, December 9, 1996, available at <http://cisgw3.law.pace.edu/cases/961209g1.html>.

Original language:     
Translation:
German
Unavailable

75. LG Bielefeld, December 12, 1996, available at <http://cisgw3.law.pace.edu/cases/961212g1.html>.

Original language:     
Translation:
German
Unavailable

76. OLG Köln, January 8, 1997, available at <http://cisgw3.law.pace.edu/cases/970108g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [buyer] is entitled to interest granted at a rate of 5% since the time the counterclaim was served, independent of the question whether the interest rate is to be determined under German law ( 352 HGB) or under Dutch law - which provides a higher rate of interest following the [seller]'s own submissions."

77. OLG Koblenz, January 31, 1997, available at <http://cisgw3.law.pace.edu/cases/970131g1.html>.

Original language:     
Translation:
German
Unavailable

78. AG Berlin-Tiergarten, March 13, 1997, available at <http://cisgw3.law.pace.edu/cases/970313g1.html>.

Original language:     
Translation:
German
Unavailable

79. OLG Düsseldorf, April 24, 1997, available at <http://cisgw3.law.pace.edu/cases/970424g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex database:

"The seller was finally awarded the purchase price and interest according to Art. 78 CISG. Contrary to the Court of first instance, the appellate Court held that the seller had not proved it had taken out on at its place of business a bank loan in Italian Lire at a 16,5% rate of interest. Since CISG does not determine the interest rate, the Court applied Italian law as the law otherwise applicable to the contract. It therefore awarded the statutory rate of 10%."

CLOUT abstract:

"The seller was entitled to interest according to article 78 of the CISG, and, using the rules of private international law, the court applied Italian law to determine the rate of interest."

80. LG München, June 23, 1997, available at <http://cisgw3.law.pace.edu/cases/970623g1.html>.

Original language:     
Translation:
German
Unavailable

81. OLG München, July 9, 1997, available at <http://cisgw3.law.pace.edu/cases/970709g1.html>, case 7 U 2070/97.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller]'s claim of interest follows from Art. 78 CISG in connection with Section 352 HGB"

82. OLG München, July 9, 1997, available at <http://cisgw3.law.pace.edu/cases/970709g2.html>, case 7 U 2246/97.

Original language:     
Translation:
German
Unavailable

83. LG Saarbrücken, July 18, 1997, available at <http://cisgw3.law.pace.edu/cases/970718g1.html>.

Original language:     
Translation:
German
Unavailable

84. LG Göttingen, July 31, 1997, available at <http://cisgw3.law.pace.edu/cases/970731g1.html>.

Original language:     
Translation:
German
Unavailable

85. LG Hagen, October 15, 1997, available at <http://cisgw3.law.pace.edu/cases/971015g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"According to Article 78 CISG, interest should be paid from the date of accrual, at an interest rate of 10%, as provided in the applicable Italian law (Articles 28(1) and (2) EGBGB, Article 1284(1) C.C.). [Seller] did not request payment of additional damages (Article 74 CISG)."

86. OLG Hamm, November 5, 1997, available at <http://cisgw3.law.pace.edu/cases/971105g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"Seller's claim for the payment of the purchase price is based upon Art. 53 CISG; [seller's] claim for interest is based upon Art. 78 CISG.... The CISG does not fix the applicable interest rate. According to unanimous opinion and the case law of this Court (cf. IPRax 1996, 197), the interest rate is to be settled in conformity with the law applicable by virtue of the rules of private international law. Therefore, the interest rate is to be determined under Italian law, because the seller's performance is the characteristic performance of a sales contract.... Under Italian law, the legal interest rate has been at 10% since 16 December 1990 (cf. Piltz, NJW 1996, 2768, 2772; Kindler, IPRax 1996, 16, 21). The [seller] does not seek a higher rate. The [buyer] did not object to the dates from which the [seller] requests interest."

87. OLG München, January 28, 1998, available at <http://cisgw3.law.pace.edu/cases/980128g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The law governing the contract is the CISG and, on matters not settled by the Convention, Italian law, as the [seller's] performance was to characterize the contract (cf. Art. 32(1) no. 4 and Art. 28 no. 2 EGBGB).... The [seller] is entitled to interest on the remainder of the purchase price.... The interest rate follows from Art. 1284 cc."

88. OLG München, March 11, 1998, available at <http://cisgw3.law.pace.edu/cases/980311g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The claim for interest is justified only for a rate of 5% according to 352, 353 HGB, because German law is the applicable law supplementing the CISG."

89. LG Berlin, March 24, 1998, available at <http://cisgw3.law.pace.edu/cases/980324g1.html>.

Original language:     
Translation:
German
Unavailable

Unilex database:

"As to the question of interest, since Art. 78 CISG does determine the rate of interest, the Court stated that it was to be determined according to the domestic law otherwise applicable to the contract."

90. LG Erfurt, July 29, 1998, available at <http://cisgw3.law.pace.edu/cases/980729g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The claim for interest is based on Art. 78 CISG."

91. LG Regensburg, September 24, 1998, available at <http://cisgw3.law.pace.edu/cases/980924g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The Court will only allow interest in the amount of 5% under 352(1) HGB from the time the action was brought, because the [seller] has neither shown that he suffered a higher damage nor proven an earlier culpable delay by the [buyer]."

92. LG Zwickau, March 19, 1999, available at <http://cisgw3.law.pace.edu/cases/990319g1.html>.

Original language:     
Translation:
German
Unavailable

93. LG Flensburg, March 24, 1999, available at <http://cisgw3.law.pace.edu/cases/990324g2.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The seller is entitled to interest on the purchase price under Art. 78 CISG in connection with 352 HGB. Under Art. 78 CISG the [seller] has a right to interest on the purchase price in arrears without sending a request for payment. After the [buyer] had received the goods, she was bound to pay the purchase price at the time stipulated in the invoices (Art. 58 CISG). As the CISG does not settle the rate of interest, national law, that is 352 HGB, applies (cf. v.Caemmerer/Schlechtriem, Art. 78 n. 27 and 32). The [seller's] claim for interest is thus legitimate with respect to 5%, whereas the [seller] did not prove that he suffered a higher damage."

94. AG Stendal, October 19, 1999, available at <http://cisgw3.law.pace.edu/cases/991012g1.html>.

Original language:     
Translation:
German
Unavailable

95. OLG Koblenz, November 18, 1999, available at <http://cisgw3.law.pace.edu/cases/991118g1.html>.

Original language:     
Translation:
German
Unavailable

CLOUT abstract:

"The Court granted interest under article 78 CISG and established the interest rate according to French law applicable pursuant to the rules of German private international law."

Unilex abstract:

"Finally, the Court found that the seller was entitled to interests according to Art. 78 CISG. Since CISG does not determine the rate of interest, the Court held that the rate was to be determined in accordance with the domestic law applicable in the seller's country."

96. OLG Hamburg, November 26, 1999, available at <http://cisgw3.law.pace.edu/cases/991126g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The interest claim is justified under article 74 CISG in connection with 288 BGB (German Civil Code)"

97. OLG Dresden, December 27, 1999, available at <http://cisgw3.law.pace.edu/cases/991227g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"According to Art. 78 CISG, [seller] is entitled to interest on the accounts payable (cf. Piltz, NJW 1996, 2768 at 2773 with further references; Piltz, NJW 1994, 1101 at 1105). The applicable interest rate reaches at least 5% per year. Under German law, an interest rate of 5% would be reasonable according to 352, 353 HGB.Under Dutch Law, the statutory interest is 6% (since 1 January 1998) according to Articles 119 and 120 of the 6th book of the Dutch Civil Code in connection with the Ministerial Decree of 18 December 1997."

98. OLG Stuttgart, February 28, 2000, available at <http://cisgw3.law.pace.edu/cases/000228g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [plaintiff] claim for interest on the purchase price is based on Art. 78 CISG, the interest rate follows from Art. 28(2) EGBGB and 352 HGB."

99. LG München, April 6, 2000, available at <http://cisgw3.law.pace.edu/cases/000406g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The rate of interest on the sum in arrears comes to 5% p.a. (Art. 78 CISG, Art. 1284 Cc). A claim for compensation of interest for drawn credit would require that the [seller] conduct his business with an ongoing bank credit which exceeds the sum claimed during the time the payment was in arrears. Furthermore - and this is decisive - the credit has to be repaid by all of the payments received by the [seller] unless such payments must be used immediately for the interest owed on the credit. It is only in such a case that a loss in the meaning of Art. 74 CISG, which exceeds the legal damage for delay, exists. The [seller] did not submit any facts demonstrating such a loss. [Seller] could only claim for payment of an overdraft interest rate if he had established to conduct his business while permanently using an overdraft facility. Further, this overdraft had to extend his claim within these proceedings while [buyer] was in default. And most importantly, this overdraft would have had to be repaid with all incoming cash flow under his trade receivables, unless those cash flows were appropriated to redeem any accrued interest. Only if that were the case, might one establish a claim for compensation of damages beyond the statutory default interest rate pursuant to Art. 74 CISG. [Seller] has not, however, demonstrated any facts as to the aforementioned ingredients to establish such a claim beyond the statutory default interest rate."

100. AG Duisburg, April 13, 2000, available at <http://cisgw3.law.pace.edu/cases/000413g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller] is also entitled to interest of 5% from 30 November 1998. According to Art. 78 CISG interest accrues from the time the payment is due, in the present case on 29 November 1998. The rate of interest is stipulated in Art. 1284(1) CC. The CISG is silent on this matter. The Court leaves open the question of whether the relevant rate of interest is to be determined under the law of the creditor's place of business (cf. LG Stuttgart, RIW 1989, 984) or under the law of the debtor's place of business (cf. OLG Frankfurt, NJW 1991, 3102). Both approaches lead to the application of Italian national law, as the [seller] has his place of business in Italy and the rules of German private international law (Art. 28(2) EGBGB) lead to the application of Italian law. With respect to the further requests made by the [seller] the claim is unfounded. The [seller] is not entitled to a higher interest rate. Art. 74 CISG does not lead to a higher rate of interest as the [seller] does not submit that he suffered a respective damage."

101. LG Darmstadt, May 9, 2000, available at <http://cisgw3.law.pace.edu/cases/000509g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

The [seller's] claim for interest results from Art. 78 CISG in connection with 352 HGB. Under Art. 78 CISG, the [seller] is entitled to interest on any sum that is in arrears. As the CISG does not stipulate the interest rate, the rate is to be determined according to the law applicable by virtue of the rules of private international law (prevailing opinion - cf. v.Caemmerer/Schlechtriem, Kommentar zum einheitlichen UN-Kaufrecht, 2nd ed. Art. 78 n. 27). Since the parties did not agree on a choice of law clause (Art. 27(1) EGBGB), the law governing the contract is the law of the [seller's] place of business (Art. 28(2) EGBGB). This law supplements the CISG (cf. OLG München, 2 March 1994; OLG Düsseldorf, NJW-RR 1994, 506 (507)). Regardless of how the interest rate is being determined, the re-financing of a businessperson at an interest rate of 5% can be assumed in the Federal Republic of Germany and a return of 5% on an amount of one million DM cannot seriously be questioned. Such a return neither requires specific knowledge nor risky transactions. As the [seller] did not prove a higher loss resulting from bank loans, his claim for interest was reduced by the Court to the 5% stipulated by 352 HGB, owed from the date of the [buyer's] final payment refusal on 1 February 1999."

102. LG Stendal, October 12, 2000, available at <http://cisgw3.law.pace.edu/cases/001012g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"According to the prevailing opinion among scholars (cf. Staundiger/Magnus, Wiener UN-Kaufrech, Art. 78 n. 12), the rate of interest is to be determined according to he law applicable by virtue of the rules of private international law, as the Convention does not expressly settle this matter. The parties did not agree on a choice of law clause. Art. 28(1) and Art. 28(2) EGBGB lead to the application of Italian law, because [seller], who performed the obligation characteristic of the sale contract (the delivery of goods), is domiciled in Italy. The Court of First Instance granted an interest rate of 5%, which is lower than the rate of 10% provided by Art. 1284 CC (since 16 December 1990, cf. Piltz, Internatinales Kaufrecht, 5 n. 41)."

103. OLG Köln, November 13, 2000, available at <http://cisgw3.law.pace.edu/cases/001113g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"Art. 78 CISG forms the basis of the claim for interest. According to prevailing opinion, especially the consistent case law of the courts of appeal, the interest rate is to be determined under supplementary national law (cf. Schlechtriem/Bacher, Art. 78 n. 27 et seq. with further references). Again, it is of no importance whether German or Italian law is applicable. The 5% requested by the seller can be based both on Art. 1284 CC and on 352."

104. LG München, November 16, 2000, available at <http://cisgw3.law.pace.edu/cases/001116g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The extent of the [seller]'s claim is undisputed; it results from the [seller]'s undisputed pleadings. The claim follows from Art. 78 CISG. The [seller]'s claim became due with [buyer]'s receipt of the invoice dated 16 April 1999. The interest rate corresponds to Art. 1284 of the Italian Civil Code."

105. LG Flensburg, January 19, 2001, available at <http://cisgw3.law.pace.edu/cases/010119g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller] is entitled to claim for payment of interest pursuant to Section 284 et seq. BGB. The [seller] demonstrated coherently and undisputedly that the parties agreed to the obligation of the [buyer] to pay the purchase price within eight days after the actual delivery of the goods. Furthermore, the [seller] stated coherently the level of such damage regarding interest, which the [seller] had to pay for by arranging credit with his bank, and the [buyer] has not denied that statement."

106. OLG Köln, May 28, 2001, available at <http://cisgw3.law.pace.edu/cases/010528g1.html>.

Original language:     
Translation:
German
Available

Unilex abstract:

"Finally the court stated that the plaintiff was entitled to interest on its claim according to Art. 78 CISG."

107. LG Braunscweig, July 30, 2001, available at <http://cisgw3.law.pace.edu/cases/010730g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"Under Art. 78 CISG, [buyer] is entitled to interest. The rate of interest was not contested by [seller]."

108. LG München, August 30, 2001, available at <http://cisgw3.law.pace.edu/cases/010830g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [buyer] was in culpable delay with payment of purchase price on 7 February 2001, as the [sellers]' attorneys sent [buyer] a reminder of payment requesting payment to be effected until 6 February 2001. The [buyer] therefore at the latest at this point in time failed to pay the purchase price (Art. 78 CISG). The interest rate for sums in arrears is fixed at 5%. As the CISG does not provide for an interest rate, the interest rate needs to be determined under Italian law. The contract in dispute is governed by Italian law, as the party obliged to effect the characteristic performance, that is the delivery of the goods, has its place of business in Italy (Art. 28(1) and (2) EGBGB). Under Art. 1284(1) of the Italian Civil Code [C.c.] in connection with Art. 2(185) of the Budget Concomitant Act no. 662 of 22 December 1996, the interest rate is 5% per annum (cf. Kindler, Jahrbuch des italienischen Recht, vol. 10, p. 149-152). The [buyer] is liable for the pre-judicial expenses shown by the [sellers] under Art. 78 in connection with Art. 74, 61(1)(b) CISG."

109. OLG Rostock, October 10, 2001, available at <http://cisgw3.law.pace.edu/cases/011010g1.html>.

Original language:     
Translation:
German
Unavailable

110. LG München, February 20, 2002, available at <http://cisgw3.law.pace.edu/cases/020220g1.html>.

Original language:     
Translation:
German
Available

111. LG München, February 27, 2002, available at <http://cisgw3.law.pace.edu/cases/020227g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The purchase price has borne accrued interest since it became due and payable pursuant to Art. 78 CISG. In this case, the purchase price became due and payable 10 days after actual delivery of the Globes due to the agreed discount provision. The applicable interest rate is 5%, which is the statutory interest rate under Italian law as applicable in this respect. This interest rate is the equivalent to the default interest rate amongst merchants under Sec. 353 S. 1 BGB. Since [buyer 1] and [buyer 2] owed merely a reduced purchase price, the accrued interest as principally claimed by the [seller] for the period up to 7 December 1999 had to be reduced to an amount of EUR 1,069.96: viz interest of 5 % on (i) the proportion of the unpaid purchase price for the first delivery in an amount of Lire 66,380,000 for a period of 220 days; and (ii) the unpaid remainder of the purchase price for the second delivery in an amount of Lire 26,000,000 for a period of 20 days."

112. AG Viechtach, April 11, 2002, available at <http://cisgw3.law.pace.edu/cases/020411g1.html>.

Original language:     
Translation:
German
Unavailable

Court (translation):

"The [seller] is entitled to interest on the purchase price at a rate of 12% under Art. 78 CISG. According to Art. 58(1) sent. 1 CISG, payment was due when the goods were delivered on 11 July 2001. The [buyer] had to pay the price on that day without the need for another period of time to pass or a reminder of payment (Art. 59 CISG). The Court therefore grants interest from 4 August 2001, as requested. Since the [buyer] did not dispute the interest rate submitted by the [seller], the Court grants the requested rate of 12%."

113. LG Freiburg, August 22, 2002, available at <http://cisgw3.law.pace.edu/cases/020822g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The claim for interest on the purchase price is justified under Art. 84(1) CISG; the claim for interest on damages is justified under Art. 78 CISG. As the CISG does not provide for an interest rate, it is appropriate to rely on 288 I 2 BGB because this is the rule more favorable to the seller in comparison to corresponding regulations in Italian law, which grant higher interest rates."

114. OLG Schleswig, August 22, 2002, available at <http://cisgw3.law.pace.edu/cases/020822g2.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [buyer] further pursues with his appeal a challenge of the actual level of the claim for default interest accrued. The Court of First Instance applied Section 284 et. seq. BGB to [seller]'s claim for interest payment and granted the entire claim as pleaded for. The [seller] is of the opinion that this claim for interest payment is justified under relevant Danish law. The [seller]'s claim for interest payment stems from Art. 78 CISG. According to that provision, the defaulting party has to pay interest, provided that payment of the purchase price or any other amount due and payable has been in default. However, the actual level of the interest rate has not been stated within this provision. Henceforth, national law can be applied complementary. In the case of international sales contracts, it is assumed pursuant to Art. 28 Par. 2 EGBGB, that the law of the seat of the [seller] shall be applicable with regards to the payment of the purchase price (v. Caemmerer/Schlechtriem, Art. 78, Note 27). Since the [seller] has not given conclusive evidence that he steadily borrows money at least at an amount equivalent to the purchase price and that he is able to redeem such credit at any time, he is not entitled to claim for a higher interest rate than the statutory interest rate. Consequently, the interest rate as claimed for is limited to 5 % [p.a.] pursuant to Section 352 HGB"

115. LG Göttingen, September 20, 2002, available at <http://cisgw3.law.pace.edu/cases/020920g1.html>.

Original language:     
Translation:
German
Available

Court (translation)

"[Seller] is entitled to claim payment from the [buyer] of 5% default interest above the Base Rate [Base Interest Rate, Basiszinssatz, Base Interest Rate as set forth in Sec. 1 of the German Act on the Transmission of the Discount Rate]; on the purchase price in an amount of EUR 221,221.65 pursuant to Art. 78 CISG in connection with Sec. 288 Par. 1 BGB However, [seller] has not demonstrated that he can claim payment of a higher interest rate. Insofar as [seller] granted and acknowledged credits in an overall amount of EUR 7,322.93, he had already reduced his claim within these proceedings accordingly. These credits on [seller]'s claim based on the amount stated in invoice No. 1 were set-off against his own claim. This reduced the amount on which his claim for interest payment had to be calculated. [Seller] has not argued his case, what amounts of which invoices should be reduced by those credits in favor of the [buyer]. He has not particularly adjusted his calculation of default interest. The Court, moreover, does not have the duty to carry out such an allocation and appropriation. For this reason, the Court reduced the claim for payment of default interest with regard to the most mature claim against the [buyer]. In relation to his claim for damages in an amount of EUR 8,250, [seller] can claim payment of interest since the commencement of his legal action pursuant to Sec. 291 BGB. The [seller] only transformed the claim under invoice No. 36 to a claim for damages during the lawsuit, and may therefore not claim interest from the time payment was due under Art. 78 CISG."

116. OLG Rostock, September 25, 2002, available at <http://cisgw3.law.pace.edu/cases/020925g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"The [seller]'s claim for interest on the purchase price -- beginning with the time of delivery -- up to the amount stated above follows from Arts. 59, 78 CISG. The interest rate is determined by 353, 352 HGB, as the sale is a commercial transaction for both parties in the meaning of 343 HGB. Since Art. 78 CISG does not provide for an interest rate, the rate needs to be determined by the national law which finds supplementary application or by the interest level of the country in whose currency the price is to be paid (cf. v.Caemmerer/Schlechtriem/Bacher, op. cit., Art. 78 n. 27, 33); either way, this leads to the application of German law in the present case."

117. OLG Köln, October 14, 2002, available at <http://cisgw3.law.pace.edu/cases/021014g1.html>.

Original language:     
Translation:
German
Unavailable

118. LG Saarbrücken, November 25, 2002, available at <http://cisgw3.law.pace.edu/cases/021125g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"Pursuant to Art. 78 CISG, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it without any further conditions. The relevant point of time is 4 May 1999 as it was requested and laid down in the default summons; the date 4 May 1998 included in the statement of claim is obviously a clerical error because at that time the goods were neither ordered nor delivered - the latter took place only between 3 September and 11 December 1998. The CISG includes only the grounds for which interest can be ordered but it is silent on the rate of interest. As far as the parties did not agree on the latter, first of all usages referred to in Art. 9 CISG shall be taken into account. Yet, such usages were neither presented by the parties nor could they be otherwise ascertained. Therefore, the rate of interest shall be determined with regard to the statutory law which is applicable, pursuant to the provisions on private international law of the forum, to questions not covered by the CISG. Consequently, based on Art. 28(2) EGBGB, German law is applicable.

The contract has the closest links to Germany because Seller, which has its place of business in Germany, carried out the characteristic service. Since the German EGBGB is silent on the question of the rate of interest, Arts. 352 and 353 HGB shall be applied which provide for a statutory rate of interest at 5 percent. The Seller can enforce its further claims for interest exceeding the statutory rate of interest as part of the damages (Arts. 74, 78 CISG). It is sufficient that the Seller drew on credit of a certain amount during the period of time in question, it is irrelevant that drawing on such credit took place as a direct consequence of the Buyer's delay in paying the purchase price. Conditions set by Arts. 74 and 78 CISG are undisputedly fulfilled because [Seller] drew on a bank credit for which it paid interest at 12 percent, therefore the claim is founded."

119. LG Saarbrücken, November 25, 2002, available at <http://cisgw3.law.pace.edu/cases/021125g1.html>.

Original language:     
Translation:
German
Available

Court (translation):

"Undisputedly, losses in interest have been suffered. The interest rate due is determined by Art. 45(1)(b), Art. 74, Art. 84(1) CISG. A claim for further interest is not substantiated. In particular, 288 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) does not apply. Instead, as the CISG does not provide for rate of interest (Achilles, Art. 84, note 2; Staudinger/Magnus, Art. 84, note 9), 28(2) of the Introductory Act of the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch; EGBGB) refers to the Swiss Law of Obligations (Schweizerisches Obligationenrecht; OR) as the applicable law). Arts. 73 and 104 of the Swiss Law of Obligations determine an interest rate of 5%. A claim for further interest is sustainable only to the extent that had already been granted in the judgment of the District Court (Landgericht)."

120. LG Mönchengladbach, July 15, 2003, available at <http://cisgw3.law.pace.edu/cases/030715g1.html>.

Original language:     
Translation:
German
Unavailable

SUMMARY

Cases involving Article 78: 120
Cases for which an English translation is available: 49
Cases for which only an abstract was available: 29
Cases for which neither translation nor abstract was available: 42


Pace Law School Institute of International Commercial Law - Last updated November 15, 2004
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