Switzerland 25 February 2002 District Court Schaffhausen (Machines, devices and replacement parts case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020225s1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 12/1997/322
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Switzerland (defendant)
GOODS INVOLVED: Machines, devices and replacement parts
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7C22 [Gap-filling: recourse to general principles on which Convention is bases]; 38A [Buyer's obligation to examine goods]; 39A ; 39A11 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Specification of nature of non-conformity: degree of specificity required]; 74A [General rules for measuring damages]; 78A ; 78B [Interest on delay in receiving price or any other sum in arrears; Rate of interest]
7C22 [Gap-filling: recourse to general principles on which Convention is bases];
38A [Buyer's obligation to examine goods];
39A ; 39A11 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; Specification of nature of non-conformity: degree of specificity required];
74A [General rules for measuring damages];
78A ; 78B [Interest on delay in receiving price or any other sum in arrears; Rate of interest]
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/723.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
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Case text (English translation) [second draft]
Queen Mary Case Translation Programme
25 February 2002 [12/1997/322]
Translation [*] by Kirsten Stadtländer [**]
A. By a confirmation of order of 4 November 1992, Plaintiff [Seller] and Defendant [Buyer(s)] concluded a contract concerning the delivery of various instruments and machines by [Seller] to [Buyer(s)]. In this contract, the conditions for replacement parts were determined as well (KB 3). These instruments and machines were used by the working cooperation consisting of Defendant [Buyers] 1 and 2 on a site for the construction of tunnels in Germany.
B. For the delivery of the machines, instruments and replacement parts, [Seller] issued an invoice to [Buyer] in the total amount of Fr. 5,167,800.00 (Memorandum of [Seller], p. 16, act. 33 and Response, p. 3, act. 76). [Seller] entered the sum of Fr. 4,951,366 to [Buyers'] credit as incoming payment for payments and other credit items (Memorandum of [Seller], p. 20, act. 37).
C. By the receipt of an order of the office of the Judge of the Peace of Schaffhausen about a claim in the amount of Fr. 221,802.55 at the Canton Court Schaffhausen on 18 December 1997, the proceedings became pending. (act. 1)
D. On 22 January 1998, [Seller] paid its security of costs which was ordered for it by decision of 12 January 1998 (act. 10).
E. On 20 April 1998, [Seller] handed in the claim and demanded that Defendant [Buyers] 1 and 2 should in joint and several liability be ordered to pay [Seller] Fr. 221,802.55 plus interest at a rate of 5% since 1 April 1995, all of the costs and compensation to be paid by [Buyer] (act. 18).
F. On 21 April 1998, the order for response was served upon Defendant [Buyers] (act. 48). By writing of 8 May 1998, the representative of Defendant [Buyer] 2 declared that it did not represent it any more (act. 51).
G. By writing of 27 May 1998, Defendant [Buyer] 1 demanded that [Seller] be required to pay a security of Fr. 20,000 for the compensation of the proceedings (act. 53). On 8 June 1998, Defendant [Buyer] 1 was on its demand discharged of the period of response until the payment of security was decided (act. 56). The statement of [Seller] is dated 12 June 1998 (act. 57). By decision of 3 August 1998, the Canton Court rejected the demand of Defendant [Buyer] 1 for the payment of security and ordered a period for Defendant [Buyer] 1 to respond to the claim. Defendant [Buyer] 2 was set a second period for its response (act. 60 et seq.).
H. On 16 November 1998, the common response of the Defendant [Buyers] 1 and 2 was received (act. 74).
I. By decision of 23 November 1998, a second exchange of letters was ordered (act. 88). The reply was dated 9 March 1999 (act. 99 et seq.) and the rejoinder 19 August 1999 (act. 120 et seq.).
J. On 29 August 2000, an audience of the representatives took place which did not lead to any result (act. 135).
K. By decision of 9 October 2000, the Canton Court made the order to provide evidence (act. 137 et seq.). The presentation of evidence is dated 4 December 2000 (act. 148 and 149 et seq.) and the objections to the presented evidence are dated 20 December 2000 (Defendant [Buyer], act. 157) and 22 January 2001 (act. 158 et seq.).
L. On 7 May 2001, the order for the hearing of the evidence was issued (act. 164 et seq.). On 13 August 2001, the first hearing of evidence took place (act. 193 et seq.) By writing of 21 August 2001, the Defendant [Buyers] requested the admission of an additional witness (act. 215 et seq.). This application was dismissed on 27 August 2001 (act. 217 et seq.). On 3 September 2001, a second hearing of evidence took place (act. 220 et seq.) The evaluations of evidence are dated 10 October 2001 (Plaintiff [Seller], act. 231 et seq.) and 25 October 2001 (Defendant [Buyers], act. 236 et seq.).
As far as necessary, the assertions of the parties will be referred to in the following considerations.
1. According to Art. 38 of the Federal Law on the Forum in Civil Matters (GestG; SR 272), the forum does not change for claims that are pending at the time the law became effective. At the time the present case became pending on 18 December 1997, the GestG was not yet effective (it entered into force on 1 January 2001). Consequently, the provisions concerning the forum of Arts. 56 et seq. ZPO [*] are applicable. The same is correct according to Art. 402 ZPO for Art. 73 a ZPO which only became effective on 1 July 1999 and refers disputes of a value of more than Fr. 20,000 to the Canton Court. Before the limit of value was Fr. 6,000 under Art. 79(a) KV [*] which is thus applicable to this case.
The parties have chosen Schaffhausen as the forum in No. 6.5 of the confirmation of order of 4 November (KB 3) on which the legal relationship is based. Art. 70 ZPO which was in force at the time this case became pending on 18 December 1997 allows (as does the GestG) agreements on a forum and requires the court to accept the case if one party has its seat in the Canton. Defendant [Buyer] 1 has its seat in Schaffhausen; furthermore, the asserted claim is clearly above the limit of value of Fr. 6,000, according to Art. 79(a) KV. The Canton Court Schaffhausen is therefore compentent and obliged to hear the case, as it has local and subject matter jurisdiction.
2. According to Art. 1 of the UN Convention on the International Sale of Goods (CISG), the Convention is applicable to contracts of sale if the parties have their seats in different States and these are Contracting States. [Seller] has its seat in Italy, [Buyers] in Switzerland. In Italy the Convention became effective on 1 January 1998, in Switzerland on 1 March 1991. Therefore, the requirements for the application of the CISG are fulfilled. Furthermore, it is required that the contract be a contract of sale of goods. There is not express definition of a sales contract in the CISG, but a definition can be deduced from Arts. 30 and 53 CISG. Accordingly, a sales contract in the sense of the CISG is a contract by which one party (seller) is obliged to deliver goods and to transfer the property of the goods and the other party (buyer) is obliged to accept the goods and to pay the price (see Schlechtriem, Commentary of the CISG, 3d edition, Munich 2000, no. 13 Art. 1, p. 54/55). [Seller] as well as [Buyer(s)] assume that the CISG is applicable to their legal relationship (Memorandum of [Seller], p. 23, act. 40 and Response, p. 9, act. 82).
According to Art. 145 ZPO [*], the judge must apply the relevant law ex oficio. Thus, it must be examined whether the assumption of the parties is correct. The content of the contract that was concluded between the parties can be deduced from the confirmation of order of 4 November 1992 (see KB 3). In this document, [Buyers] ordered four drilling machines, three high-pressure pumps, two mixing plants from [Seller]. Furthermore, the conditions of delivery were stated, as well as the conditions for the order of replacement parts. The main aspect of the contract is the duty of [Seller] to deliver goods to [Buyers]. The additional services (installation, transport, lease of additional tools, etc.) are of subordinate relevance. Therefore, the CISG is applicable to the legal relationship between the parties (see Schlechtriem, loc. cit, no. 12 Art. 3 CISG, Honsell, Commentary on the CISG, No. 2 Art. 3).
3. Under Art. 30 CISG, the seller is with regard to the contract and the Convention obliged to deliver the goods, to hand over the relevant documents and to transfer property of the goods. In addition, Art. 53 CISG sets forth that the buyer is obliged to pay the price in accordance with the contract and the Convention and to accept the goods.
[Seller] demands that [Buyers] pay the total amount of Fr. 221,802.55 plus interest of 5% since 1 April 1995. [Seller] bases its claim on the delivery of the items of equipment and replacement parts stated in the confirmation of order. It supports these deliveries by numerous invoices and bills of delivery (see KB 6 and 10). Furthermore, it asserts that the deliveries have not been completely paid by [Buyers] and that it is therefore entitled to the outstanding amounts. On the other hand, [Buyers] are of the opinion that [Seller]'s account of receivables is incorrect, but [Buyers] have only substantially contested some of the disputed items in the amount of Fr. 12,615.85 (see list below). They mainly assert that they suffered damages of Fr. 219,729.72 due to deficient deliveries. Moreover, there were damages due to loss of production and delays, which certainly exceed the amount of Fr. 100,000. [Buyers'] set-off opposes these items of damages to [Seller]'s asserted claims.
On the basis of the documents presented and the explanations of the parties, the business can be divided in two parts. On the one hand, the basic delivery of four drilling machines, three high-pressure pumps and two mixing plants and, on the other hand, the delivery of replacement parts. Concerning the basic delivery, the parties agreed to a price of Fr. 4,156,260 in total, to be paid as follows: Fr. 831,252.00 (20% of the total) plus three installments of Fr. 1,108,336 each (see KB 3).The first pay-off was made by [Buyers] on 6 November 1992 (KS 5.9, act. 26, KAS p. 3, act. 76). Concerning the remaining amount, [Seller] issued individual invoices, while always reducing the sum by 20 % (with regard to the paying off). To summarize, the following account results:
Sum of account
(= paying off)
sum to be paid
The sum of Fr. 3,325,008 was paid by the [Buyers] by credit transfers of 7 June 1993, 6 October 1993 and 2 April 1994 (KS p. 9, act. 26, KAS, p.3, act. 76, KB 7 and 8). Thus, together with the paying off of Fr. 831,252.00 [Buyers] have completely paid the agreed price for the basic delivery in the amount of Fr. 4,156,260 until 2 April 1994.
Concerning the replacement parts as well as the lease of drilling material, [Seller] issued a special invoice (see KB 6 and 10). As shown above, [Buyers] only substantially contest the accuracy of the invoices in the amount of Fr. 12,615.85. A listing of the submitted invoices leads to the following result:
|Number of |
Sum of account
|02/00010/94||16/01/1994||Fr.||20,875.73||Accounts 72/94 and 78/94 are in|
|02/00043/94||14/02/1994||Fr.||2,216.50||total Fr. 2,201.82 too high, two|
|02/00044/94||14/02/1994||Fr.||15,881.20||wrong, and two not delivered|
|02/00045/94||14/02/1994||Fr.||24,010.52||items (KAS, p.8, act.81)|
|02/00075/94||15/03/1994||Fr.||1,610.03||Fr. 200.00 too high costs of|
|02/00078/94||17/03/1994||Fr.||14,611.09||transport (KAS, p.8, act.81)|
|02/00079/94||21/03/1994||Fr.||5,746.24||Fr. 245.00 too high costs of|
|02/00083/94||22/03/1994||Fr.||1,195.32||transport (KAS, p.8, act. 81)|
|02/00099/94||11/04/1994||Fr.||37,673.72||Fr. 1,390.80 (not delivered)|
|02/00116/94||22/04/1994||Fr.||28,288.69||and Fr. 4,741.50 (wrong delivery)|
|02/00134/94||04/05/1994||Fr.||2,782.08||too high (KAS, p. 8, act. 81)|
|02/00193/94||07/07/1994||Fr.||6,692.00||Fr. 367,93 too high (not delivered,|
|02/00199/94||11/07/1994||Fr.||8,401.24||KAS, p. 8, act. 81)|
|02/00200/94||11/07/1994||Fr.||2,669.58||Fr. 2.473,10 too high (not delivered|
|02/00215/94||20/07/1994||Fr.||7,217.07||KAS, p.8, act. 81)|
|02/00018/95||25/01/1995||Fr.||2,590.08||Fr. 995.70 too high due to missing|
|| material (KAS, p.6, act.78)
|In total:||Fr.||1,842,792.09||Fr. 12,615.85 contested|
[Seller] has also submitted credit advices of payments by [Buyers] to its account at the Banca Commerciale Italiana (KB 8). [Buyers] did not contest the accuracy and especially not the completeness of the listed payments (KS, p. 15 act. 35, KAS, p. 4 act. 77). [Seller] has also issued two credits to [Buyers] for failed deliveries. Then the parties agreed a flat-rate reduction in the amount of Fr. 85,000 in their meeting of 25 February 1994 (KS, p. 18, act. 35, rejoinder, p. 3, act. 122, KB 14).
All together, this leads to credits for [Buyers] in the full amount:
|Date of receipt||Amount||KB|
|Total||Fr.||1,626,358.45||payments and credits|
The deliveries that are invoiced in the amount of Fr. 1,842,792.09 are faced with payments and credits in the amount of Fr. 1,626,358.45. Thus, concerning these deliveries there remains an outstanding amount of Fr. 216,433. 64 of which only Fr. 12,615.85 are contested. To this amount, two invoices to [Buyer] to the place of delivery in Schaffhausen are to be added: No. 02/00178/94 from 29 June 1994 of Fr. 4,630.75 and No. 02/00017/95 from 24 January 1995 of Fr. 737.80 which makes a total amount of Fr. 221,802.19 (actually claimed are Fr. 221,802.55, see act. 19). Apart from the contested amount of Fr. 12,615.85, [Buyers] assert the objection of set-off in the amount of Fr. 219,729.72 plus further discretionary damages to be assessed. They base their set-off claim on the grounds that the delivered goods had often been deficient and could not be used for the intended purpose. Moreover, there have been "flatulences" on five cylinders after one year of use which result from an inferior quality of the cylinders that were put into the machines. The further damage [Buyers] suffered derives from delays (KAS, p. 10/11, act. 83/84).
4. According to Art. 45 CISG the buyer can make use of its rights under Arts. 46-52 CISG and claim damages under Arts. 74-77 CISG if the seller does not fulfil its duties under the contract or the Convention. Arts. 46-52 CISG offer the buyer the legal remedies of specific performance (Art. 46 CISG), recission of the contract (Art. 49 CISG) and reduction of the price (Art. 50 CISG). The right to specific performance is always given. The right to recission of the contract can only be asserted by the buyer if the non-performance of the duty of the seller constitutes a fundamental breach in the sense of Art. 25 CISG. Contrary to that, the right of reduction of the price is available if the delivered goods do not conform with the contract, independent of the question whether this constitutes a fundamental breach of contract (see Schlechtriem, loc. cit., no. 16 Art. 45 CISG, p. 464 et seq.). A precondition for the assertion of these rights of the buyer is a notification as, according to Art. 39(1) CISG, the buyer loses its right to claim the deficiency of the goods if he does not notify the seller within a reasonable period of time after buyer realized the deficiency or should have realized it and specifically names the deficiencies. In the absence of a notification or in case of an unclear notification, the goods are deemed to be accepted. In that case, the buyer loses all the rights it is granted under Art. 45 CISG (see Schlechtriem, loc. cit., no. 30 Art. 39, p. 419, Honsell, loc. cit., no. 27 Art. 39 CISG, p. 433). To determine a reasonable period of notification in the sense of Art. 39(1), CISG two periods have to be taken into account. First, the short period for examination of the goods under Art. 38 CISG. When determining this period, the kind of the goods has to be considered as well as the position of the buyer in its trade, the general circumstances and the infrastructure at the place of examination and also cultural differences (see Schlechtriem, loc. cit., no. 15 Art. 38 CISG, p. 405/406). In the present case, the main object is delivered machines which [Buyers] had to examine at a construction site in Germany. It must be taken into consideration that the [Buyers] are two large companies in the building industry. With regard to these circumstances, an examination period of one month seems to be adequate. The actual notification period after the examination can also be determined as one month (see Schlechtriem, loc. cit., no. 17 Art. 39 CISG, p. 415/416). To summarize, in the present case the notification must be considered to be on time if at the latest it took place two months after the delivery of the goods, respectively one month after the determination of a hidden deficiency.
[Seller] contests that [Buyers] have correctly notified about the deficiencies they now claim concerning the delivered goods (KS, p. 26, act. 43). [Buyers], on the other hand, did not specify the alleged notification as the exact time of notification. They only assert that they had immediately notified about the deficiencies (KAS, p.12, act. 85) and that deficiencies of the construction had been notified from the beginning on (rejoinder, 5.5, act. 124). The existence of the required notification, especially the posting, must be proved by the person who refers to it (see Schlechtriem, loc. cit., no. 37 Art. 39 CISG, p. 421, Honsell, loc. cit., no. 37 Art. 39 CISG, p. 436). [Buyers] therefore bear the burden of assertion and proof under the substantive law. Thus, their statement of facts must be conclusive on the whole and due to circumstances of the case -- contestation of a notification by [Seller] -- must be made in detailed form, which means in a specifying manner (see Jürgen Brönnimann, in: Evidence in Civil Procedure, Bern 2000, p. 53).
In the present case, [Buyers] would have to state when the alleged deficiencies were recognized. Furthermore, they would have to declare how and who was notified by them. But [Buyers] did not do this in a sufficient manner. Neither did [Buyers] state exactly when the different alleged deficiencies were discovered, nor at which time they gave notice of these deficiencies. Therefore, [Buyers] did not sufficiently specify their alleged notification. Consequently, [Seller]'s assertion that the notifications have not been made on time must be assumed to be correct (see BGE [*] 1 07 II 176 concerning timely notification under Art. 370 (3) OR [*]). In applying Art. 39 CISG, this leads to the consequence that [Buyers] cannot assert their rights under Arts. 45 et seq. CISG. Thus, there are no grounds for [Buyers'] claims for set-off for reduction of the price and damages and they cannot be considered any further.
5. [Buyers] were given the possibility to provide proof of their alleged notifications and they were ordered to submit evidence that they did notify about the deficiencies (act. 139):
[Buyers] waived the opportunity to provide evidence for these ordered statements a to d (see [Defendant [Buyers'] submission of evidence of 4 December 2000, act. 148). Furthermore, the parties withdrew from the interrogation of several witnesses at the taking of evidence of 13 August 2001: ... and ...(Plaintiff [Seller], act. 205/206), and (Defendant [Buyers], act. 206). The taking of evidence led to the following result concerning the different facts to be proved:
e) As to the assertion that [Buyers] did notify the following deficiencies: constant defects of the horizontal-jetting-machines TAF 1500 (no. 1 para. e order of taking evidence, act. 165):
[Buyers] refer to the following three witnesses for evidence:
|-||Witness A. B., at the relevant time boss of the workshop of [Buyers'] legal predecessor, stated that in September 1993, when he came to the construction site in Bonn, the horizontal-jetting-machines TAF 1500 had already been there. These machines had been defective. To the question whether these defects had been notified he stated that "they" had certainly done that. He believes, he is certain that Mr. ..., who was supervisor of the site, or Mr. ... of Defendant [Buyer] 1 had made a reclamation. How and when exactly that was done, he could not say as he was competent for the technical and not the commercial matters. He had also said this to Mr. .... Once an expert of the TÜV ( Technical Control Board), came and then certainly there was sent a writing to Italy. At the end of 1993, fitters of [Seller] had been on the site and "did something, repairs" (record of the taking of evidence of 23 August 2001, act. 193-201).|
|-||Witness C. D:, at the relevant time supervisor of the site of the predecessor of Defendant [Buyer] 2, stated that the delivery of the first horizontal-jetting-machine TAF 1500 took place in the early summer of 1993. All machines had been defective. He had personally made a reclamation by telephone to Mr. ..., his agent of [Seller] in Switzerland, in July or August 1993 and notified him that the carriages of the TAF were hanging too deep. He does not know whether other reclamations have been made (record of the taking of evidence of 23 August 2001, act. 201-203).|
|-||Witness E.F., at the relevant time supervisor of the site of Defendant [Buyer] 1, stated that the delivery of the TAF took place in June/July 1993. They had been under pressure of time then and there had been many mechanics on the site. They had been working on the machines longer than was planned. By his own perception, he does not know if anyone notified [Seller] about the deficiencies, but he can imagine that this was only put aside (record of the taking of evidence of 3 September 2001, act. 221-224).|
For counter evidence [Seller] refers to different documents:
|-||The documents of the fitting and final inspection S 108*0100*TA (KB 28) consist of the working reports and receipts of expenses of the fitters of [Seller] in the time from 9 to 19 March 1993 and a confirmation of the final inspection of the machine by the INA.|
|-||The documents of the fitting and final inspection S 108*0130*TA (KB 29) consist of the working reports and receipts of expenses of the fitters of [Seller] in the time from 5 to 16 July 1993 and a confirmation of the final inspection of the machine by the INA of 14 July 1993.|
|-||The documents of the fitting and final inspection S 108* 0120*TA (Kb 29) consist of the working reports and receipts of expenses of the fitters of [Seller] in the time from 9 to 19 March 1993 and a confirmation of the final inspection of the machine by the INA of 14 July 1993.|
|-||The documents of the fitting and final inspection S 108*0110*TA (KB 30) consist of the working reports and receipts of expenses of the fitters of [Seller] in the time from 9 to 11 September 1993 and a confirmation of the final inspection of the machine by the INA.|
|-||An article published in T & T in October 2000, p. 10 (KB 31) describing the construction work at a street tunnel in the canton of Aargau undertaken by ...|
|-||A folder "For you in the underground" of Defendant [Buyer] 1 with TAF 1500 (KB 32) showing that the horizontal-jetting-machines TAF 1500 was also used for the building of the tunnel by Defendant [Buyer] 1. - The Folder of [Seller] on the P. TAF 1500 (KB 33) is a publicity leaflet of [Seller].|
There cannot be deduced any results concerning the object of the taking of evidence from the documents stated by [Seller]. There are no hints concerning the existence or non-existence of the notification of deficiencies. Also, no conclusions can be drawn from the confirmations of the final inspections (Kb 28, 29, 30), as they were signed by the INA and not by a representative of [Buyers].
After the interrogation of the witnesses, we find the following situation: A.B. as well as witness E.F. are sure that someone must have made a reclamation, as the machines had been defective. However, they cannot state a particular notification of a particular person. Especially, they did not personally notify [Seller]. Witness C.D. only declares in that context that he informed Mr. ... about "it" who, according to the uncontested statement of [Buyers] (KAS, p. 8, act. 81), must be considered to be a representative of [Seller] in Switzerland.
The witness is the author of the report submitted by [Buyers] (BB 3 and 3a); he was the boss of the workshop of [Buyers] at that time. He emphasized that he was competent for technical matters (record of the taking of evidence of 13 August 2001, act.196) and had no contact with commercial matters. Consequently, it must be assumed that he passed on his remarks to the person competent in commercial matters and left it to him how to react to it. Whether such a reaction took place, cannot be concluded from his statements. It must be added here as well that the notification of deficiencies under the CISG must be made within a reasonable period of time, which means that it must take place within a month after the period of examination has elapsed (see Schlechtriem, loc. cit., no 17 Art. 39, p. 416) and the non-conformity with the contract must be exactly specified, though the requirements of specification must not be too strict (see loc. cit., Schlechtriem, no. 6 Art. 39, p. 411/412). Concerning these two issues, there is no information contained in the statements of witness A.B. Thus, this statement in itself cannot constitute proof of the correct notification of the "constant defects".
Only witness C.D: remembers his own actual notification. He had notified Mr. ... in July or August 1993. He had declared that the carriages were hanging too deep. The reclamation had been made at the beginning, which means July or August 1993. Thus, the notification of C.D. did not concern the alleged "constant defects" of the TAF 1500 but the -- alleged -- carriages that were too weak. In context with this deficiency, however, the [Buyers] do not assert the objection of set-off. The report of their first mechanic, to whom [Buyers] refer (BB 3 and 3a), concerns only the direction, suspension, dimension and the connection of the hydraulic tubes. But there is no connection to the weak carriages. Moreover, witness C.D. made his notification in July or August 1993 and the defects to which [Buyers] refer for their set-off claim, turned up since October 1993 (see BB3). Consequently, [Buyers] cannot deduce anything from that statement that would favor their position concerning the notification of the "constant defects" that must be proved.
In their submission of evidence, [Buyers] mainly argue on "general experience of life". They elaborate that it is a general experience of life that deficiencies of the kind that were described by the witnesses were not just ignored and just as well it is a general life experience that the fitters are not by themselves motivated to travel through Europe to fulfil repair work. This is only the case if deficiencies have been notified beforehand. (see consideration of evidence of 25 October 2001, act. 236 et seq.).
Concerning these arguments, the following remarks have to be made. It may often happen that notifications are made if such serious deficiencies occur as [Buyers] allege. But it cannot be concluded from this that it is always the case. General experience of life shows on the contrary that even responsible persons may not react in serious matters. If this were different, the taking of evidence would not have been necessary in this case. As to the presence of fitters of [Seller] on the construction site, this can also be based on "regular" repairs (without the existence of deficiencies), instructions or installations. From this presence it cannot be concluded that it was definitely preceded by a notification of deficiencies. This does not constitute any legal evidence. To summarize, it has to be stated that [Buyers] failed in providing evidence in this respect.
f) As to the assertion that [Buyers] had notified the following deficiencies: flatulences on five cylinders (no. 1 para. f order of taking of evidence, act. 165):
|-||Witness G.H. named by [Buyers], could not give any information on this (record of the taking of evidence of 13 August 2001, act. 204f.).|
|-||Furthermore, [Buyers] referred to the securities documents of the G. trust, policy no. ..., damage no. 18/408-95, 18/416-95, 18/432-95 and 18/457-95. These files, edited by its Damage-Security, show the following: by notices of damage of [Buyers] from 22 June 1995, the securities company was informed about flatulences of one cylinder (18/416-95, act. 241) as well as a notched bar impact on the covered telescope pipe (18/408-95, act. 243) as cases of damages.|
|-||By notices of damage of [Buyers] from 5 July 1995, the securities company was informed about two further cases of damages, again a flatulence of a cylinder (18/432-95, act. 245) as well as a notched bar impact on the covered telescope pipe (18/457-95, act. 247). As the date of the damage, the middle of February 1995 was stated for all damages. On 25 July 1995, [Buyers] sent the offers of the WUKO of 11 July 1995 (act. 249) and the INA of 17 July 1995 for the repairing of the cylinders to the securities company.|
|-||A listing of the securities company of 28 July 1995 names the following five cases of damages concerning the TAF which shall have taken place in February (act. 252): damage no. 18/408-95, notched bar impact on the covered telescope pipe; damage no. 18/416-95, flatulence on the cylinder; damage no. 18/432-95, flatulence on the cylinder; damage no. 18/440-95, flatulence on the cylinder; damage no. 18/408-95, notched bar impact on the covered telescope pipe.|
|-||The following reasons for the damages can be deduced from a notice of a meeting of the securities company from 29 August 1995 (act. 253): notched bar impacts: the working circumstances of the civil engineering, including the clumsiness and negligence of the machinists; flatulences: deficient construction and/or wrong material. After several meetings the securities company and [Buyers] concluded a compensation agreement with a total payment of Fr. 50,000.00 (act. 255). Under this title, [Buyers] claim a right to compensation for their own participation in the amount of Fr. 50,000.00 (KS, p. 10, act. 83).|
On the basis of the files, it is established that [Buyers] did notify their own securities company and only after a consultation with it demanded an offer for the repairing of the cylinders by the INA. However, this does not constitute any evidence for a notification of deficiencies to [Seller]. It is especially not established that [Buyers] did inform [Seller] that the damage resulted from a "hidden deficiency" according to their point of view. In the context, it must be pointed at the ascertainment of the securities company that two damages of the cylinders (notched bar impacts) result from "the working circumstances of the civil engineering, including the clumsiness or negligence of the machinists" (act.253). If one followed the argument of [Buyers] (see consideration of evidence of 25 October 2001, act. 238), it would have to be assumed that it also notified [Seller] about the notched bar impacts produced by its machines which cannot seriously be asserted. Further indications or hints of a notification concerning the alleged hidden deficiencies cannot be deduced from the securities files.
Thus, it must be stated that [Buyers] also failed in this submission of proof. As counter evidence, [Seller] names the same documents as in para. f stated above. In this respect, it can be referred to the considerations in para. f.
6. Under Art. 31(a) CISG, the seller fulfils its obligation of delivery by passing the goods to the first carrier, if the sales contract requires transport of the goods. According to No. 6.3 of the confirmation of order of [Buyers] of 4 November 1992 (see KB 3), the parties agreed that the construction site in Bad Godesberg would be the place of performance. The contract requires the transport of the goods from the seat of [Seller] to the building site. The parties made no agreement concerning the transportation costs for the delivery of replacement parts. There is no express provision concerning this question in the CISG. Thus, the missing provision is to be completed by drawing on the general principles of the Convention according to Art. 7(2) CISG. The starting point is the principle that each party has to bear the costs of its obligation. In case of a sale to destination according to buyer's instructions under Art. 31(a) CISG, the seller is only required to transfer the goods to the first carrier, but not to bear the costs of the transport, so that the buyer must pay the transportation costs (see Schlechtriem, loc. cit., no. 87 Art. 31 CISG, p. 345). [Seller] demands transportation costs in the amount of Fr. 200.00 and Fr. 245.00 for two deliveries of replacement parts (invoice 02/0079/94 and 02/0083/94, KB 10). Concerning the two invoices, [Buyers] contest that they are demanding too high transportation costs (KAS, p. 8, act. 81). As [Seller] must provide proof of the amount of the transportation costs it demands under Art. 8 ZGB [*], it is ordered to submit evidence for the following statements:
a) [Seller] bases its assertion that transportation costs for the delivery of invoice 79/1994 accrued in the amount of Fr. 200,00 on the following documents: invoice 79/94; Bolla 38/94; DHL-Slip of 21 March 1994; DHL-invoice of 31 March 1994; description of the way (cartographical and stradal) (KB 26). From these documents results that the invoice of the DHL-transport No. 875138552 to Bonn was about 149,800 Lira and about 110,349 Lira for the expenses of [Seller] for the transport to the DHL-storehouse in Parma. The transportation costs amount to a total of 260,149 Lira, so that the amount of Fr. 200.00 is established.
b) [Seller] bases its assertion that transportation costs for the delivery of invoice 83/1994 accrued in the amount of Fr. 245.00 on the following documents: invoice 83/94, Bolla 40/94; DHL-Slip of 22 March 1994; DHL-invoice of 31 March 1994; description of the way (cartographical and stradal) (KB 27). From these documents results that the invoice of the DHL-transport No. 875138913 to Bonn was about 193,700 Lira and the expenses of [Seller] for the transport to the DHL-storehouse in Parma 110,349 Lira. The transportation costs amount to a total of 304,049 Lira, so that the amount of Fr. 245.00 is established.
7. With regard to the elaborations under No. 4 above and to the results of this taking of evidence, it must be stated that [Buyers'] evidence for the notification under Art. 39 CISG failed. Therefore, the deliveries of [Seller] are considered to be accepted and [Buyers] cannot assert a set-off claim due to reduction of the price or damages. On the other hand, [Seller] could provide evidence for the contested transportation costs. Thus, it must be assumed that [Seller] is entitled to Fr. 1,848,160.09 for the delivery of replacement parts and the lease of drilling material (see p. 8 above). To this amount, the two deliveries to Switzerland in the amount of Fr. 5,368.55 must be added (see p. 9 above), which leads to an amount of Fr. 1,848,160.64 in total. These credits are confronted with payments of the [Buyers] and credits of [Seller] in the amount of Fr. 1,626,358.45 (see p. 9 above). Thus, the amount of Fr. 221,802.19 remains outstanding which [Buyers] have to pay to [Seller].
8. [Seller] demands to be awarded the payment of interest of 5% since 1 April 1995 on the claim. If one party fails to pay the price or another sum due, the other party is entitled to interest on these sums (Art. 78 CISG). This Article regulates the requirements for the payment autonomously and exclusively, so that national requirements (for example, a reminder) need not be considered (see Honsell, loc. cit., no. 7 Art. 78 CISG, p. 980). According to Art. 58 CISG, the buyer is obliged to pay the price at the time that is set forth in the contract or that is determinable with regard to the contract or the CISG, without the necessity of a request or the fulfilment of formal requirements on the part of the seller. While the parties agreed on fixed dates of payments concerning the basic delivery, they agreed to the following conditions for deliveries of replacement parts up to an amount of Fr. 200,000.00: "paying off 50%, 30 days after delivery; a bank security in the amount of Fr. 100,000.00 is contained in the security of the Canton Bank of Schaffhausen from 1 November 1992; the accounting period is each half year. The company ... [Seller] can take stock at any time." (see confirmation of order of 4 November 1993, KB 3). However, the agreement was obviously never applied as it was planned, as [Seller] always billed [Buyers] in the full amount of the delivery and these did not refer to the agreement, either. Thus, it must be assumed that there is no contractual agreement concerning the time of payment and the rule of Art. 58 CISG must be applied. According to this, the buyer must pay for the goods, as soon as it receives them and it has had the opportunity for a short examination of the goods (Art. 58(1) in connection with Art. 3 CISG). The last deliveries that are asserted by [Seller] are dated in the middle of March 1995. If one grants [Buyers] a short examination period of the goods (see Honsell, loc. cit., no. 72, Art. 58 CISG, p. 675), even the last price of the goods was due on 1 April 1995, so that [Buyers] owe interest since this date. The CISG does not set forth a rate of interest. Thus, it is determined according to national law, which is by the law of conflicts of law determined as the contractual statute (Honsell, loc. cit., no. 12, Art. 78 CISG, p. 981). In this context, Art. 118 IPRG [*] refers to the Hague Convention on the Law Applicable to International Sale of Goods from 15 June 1955 (Hague Convention, SR 0.221.211.4). According to Art. 3 of the Hague Convention, a sales contract is, in the absence of a choice of law of the parties, subject to the law of the State in which the seller is domiciled at the time it receives the order. As [Seller] has its domicile in Italy, Italian law is applicable. In order to determine the rate of interest, the legal interest rate is relevant as far as there exists one (see Schlechtriem, loc. cit., no. 34 Art. 78 CISG, p. 751). The rate of interest of Art. 1284 of the Italian Civil Code which is relevant here was changed several times in the last years. The development is the following: 16 December 1990 to 31 December 1996: 10%; 1 January 1997 to 31 December 1998: 5%; 1 January 1999 to 31 December 2000: 2.5%; 1 January 2001 to 31 December 2001: 3.5 and since 1 January 2002: 3%. As [Seller] cannot be adjudged more than it demanded, the interest rate is to be set forth in the following way: from 1 April 1995 to 31 December 1998 at 5%; from 1 January 1999 to 31 December 2000 at 2.5 %; from 1 January 2001 to 31 December 2001 at 3.5%; and since 1 January 2002 at 3%.
9. With regard to this outcome of the proceedings, [Buyers] are jointly and severally liable for costs and compensation (Art. 254 in connection with Art. 257 (1) ZPO [*]).
The Second Civil Chamber of the Canton Court has unanimously concluded that the claim is founded. The Court holds:
The parties can lodge an appeal to the High Court of the Canton Schaffhausen against this judgment within 10 days after the service of the written decision. The declaration of appeal must be doubled and handed in in writing at the court office of the first instance in Schaffhausen and it must be specified which numbers of the decision (after the word "it is held") are challenged and which amendment is demanded. The motions for amendments do not have to be substantiated.
Canton Court Schaffhausen
II. Civil Chamber
Recorder of the court:
* All translations should be verified by cross-checking against the original text. All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendants of Switzerland are referred to as [Buyers].
Translator's note on abbreviations: BGE = Entscheidungen des Schweizer Bundesgerichts [Official Reporter of Cases of the Swiss Supreme Court]; GestG = Bundesgesetzes über den Gerichtsstand in Zivilsachen [Federal Law of the Forum in Civil Matters]; IPRG = Gesetz über das Internationale Privatrecht [Swiss Code on Private International Law]; KV = Kantonsverfassung [Constitution of the Canton Schaffhausen]; OR = Obligationenrecht [Swiss Law of Obligations]; ZGB = Schweizerisches Zivilgesetzbuch [Swiss Civil Code of 10 December 1907]; ZPO = Zivilprozessordnung [Code on Civil Procedure of the Canton Schaffhausen].
** Kirsten Stadtländer is a student of law at Humboldt University Berlin. She was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 2001/02 and a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.Go to Case Table of Contents