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CISG CASE PRESENTATION

Austria 29 June 1999 Supreme Court (Dividing wall panels case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990629a3.html]

Primary source(s) for case presentation: CISG-Austria website; Case text


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Case identification

DATE OF DECISION: 19990629 (29 June 1999)

JURISDICTION: Austria

TRIBUNAL: Oberster Gerichtshof [Supreme Court]

JUDGE(S): Dr. Schlosser (presiding judge), Dr. Schiemer, Dr. Gerstenecker, Dr. Rohrer, Dr. Zechner

CASE NUMBER/DOCKET NUMBER: 1 Ob 74/99k

CASE NAME: Austrian case citations do not generally identify parties to proceedings

CASE HISTORY: 1st instance Handelsgericht Wien [a regional court (27 Cg 126/96a) 16 March 1998; 2d instance Oberlandesgericht Wien [an appellate court] (5 R 83/98g-30) 30 December 1998

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Austria (defendant)

GOODS INVOLVED: Dividing wall panels


Case abstract

AUSTRIA: Oberster Gerichtshof, lOb 74/99k, 29 June 1999

Case law on UNCITRAL texts (CLOUT) abstract no. 422

Reproduced with permission from UNCITRAL

Abstract prepared by Martin Adensamer, National Correspondent

In the course of an ongoing business relationship, a German seller, the plaintiff, delivered wall panels which had been prepared by drilling and shaping to a construction site for the Austrian buyer. In October 1992, unprepared panels were delivered. It was agreed that these panels should be returned, consequently the defendant contracted with a carrier for return shipment. The day after the plaintiff acknowledged receipt without reservation it was found that the panels were severely damaged. The plaintiff sought compensation.

The Supreme Court stated that under the CISG the delivery of goods different from those ordered is to be seen as delivery of non-conforming goods regardless of the extent of the non-conformity. The Court noted that there is no requirement as to the form of termination of the contract and therefore pursuant to article 29 CISG the parties agreed on termination of the contract. The Court stated that under article 7(2) CISG, in the absence of a contractual provision on the effect of termination of the contract, the gap is to be filled by applying article 81 CISG et seq. As of the time of the avoidance, the parties are released from their mutual obligations. Nevertheless they are bound to return what they have received under the contract (article 81 CISG). The Court observed that articles 81 through 84 CISG on the allocation of the risk in the context of avoidance of the contract supersede where applicable the general risk allocation rules of articles 66 to 70.

The Court noted that there is no provision in the CISG regarding the place where the goods have to be returned, and the provision in the contract regarding the place of delivery must apply to the return as well. The defendant's obligation was only to care for the return of the goods. Under article 82 CISG, the risk for any deterioration of the goods also lies with the seller unless it is caused by an act or omission of the buyer. The Court stated that the reason for allocating the risk of loss to the seller arising from the return of defective goods under article 82 CISG is justified because the risk of such loss arose due to the asserted failure of the seller to deliver conforming goods. The Court concluded that the seller's claim to compensation for damage to the returned goods failed because the seller did not prove that such damage was due to the acts or omissions of the buyer.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7(2) ; 29 ; 35 ; 81(1) ; 82(2) [Also cited: Articles 6; 31 ; 49 ; 66 ; 74 ; 77 ; 79 ; 83 ; 84 ] [Also relevant: Articles 11 ; 57 ]

Classification of issues using UNCITRAL classification code numbers:

7C21 [Problems governed by Convention but not expressly settled (analogous application to areas not expressly regulated): effects of a consensual termination; when risk passed on returned goods];

29A [Parties by agreement may modify or terminate the contract];

35D [Delivery of goods other than those which conform to the contract];

81C [Effect of avoidance on obligations: restitution by each party of benefits received];

82B [Buyer's inability to return goods in same condition]

Descriptors: Aliud vs. peius ; Conformity of goods ; Formal requirements ; General principles ; Gap-filling ; Restitution ; Passage of risk

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Editorial remarks

Excerpt from analysis of Austrian case law by Willibald Posch & Thomas Petz*

        * "Austrian Cases on the UN Convention on Contracts for the International Sale of Goods", 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 1-24, at 15.

Aliud v. peius ; Conformity of goods. "In its decision of 29 June 1999 the Austrian Supreme Court held that the Convention's concept of 'non-conformity of goods' as stated in Articles 35 et seq. CISG had to be understood in a broad sense. Therefore, it also comprises the delivery of a commodity of a different kind as the one contracted for. Consequently, under the regime of CISG 'wrong delivery' has to be assessed by Articles 35 et seq. CISG instead of being treated as a case of non-delivery.78"

        78. Along the same lines proceed the arguments in the Supreme Court's decision of 21 March 2000 [<http://cisgw3.law.pace.edu/cases/000321a3.html>].

Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 393-394

"In a 1999 case,[574] the Austrian Supreme Court heard a dispute involving wall panels that were to be sold "ex factory" from a business in Germany to a buyer in Vienna. The panels that were shipped were non-conforming panels, in that they were not "formatted" (cut and drilled) as agreed in the contract. The parties agreed, by telephone, that the panels would be shipped back by the buyer. On inspection by the seller, the panels were found to be badly damaged and useless for resale. The seller invoiced the buyer for the value of the panels, claiming that they were not shipped correctly and that buyer had assumed the transportation risk.

"The appellate court held that the shipping of non-conforming panels constituted a delivery of non-conforming goods and a breach of contract [page 393] under Article 35 rather than a non-delivery of goods. The significance of the distinction lay in the seller's retention of the risk of loss under CISG Article 82(2)(a) and (b). Under the Austrian Commercial Code ("HGB") a distinction would have been made between delivery of non-conforming goods (Falschlieferung) and non-delivery of conforming goods (Nichtlieferung). The distinction would turn on the extent of the deviation from the contract and on whether the incorrect delivery was subject to approval. In refraining from applying the domestic law, the court drew the distinction based on the authoritative CISG commentary [575] used to interpret and apply the CISG Articles. Reliance on such commentary indicates a commitment to interpret the CISG in a manner that tends to promote uniformity of interpretation.[576]"

     574. OGH, SZ 1 Ob 74/99k, Jun. 29, 1999 (Aus.), ...; see Posch & Petz, supra note 541, at 15. See also Rolf Herber & Beate Czerwenka, Internationales Kaufrecht: Kommentar zu dem Ubereinkommen der Vereinten Nationen vom 11. April 1980, at art. 29 UN-K (München 1991); Peter Schlechtriem et al., Kommentar zum Einheitlichen UN-Kaufrecht (2nd ed. 1995).

     575. Id.

     576. See also BGH VIII ZR 51/95, Apr. 3, 1996 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/960403g1.html> [English translation by Dr. Peter Feuerstein, translation edited by Ruth M. Janal] (last updated Sep. 2003). The German Supreme Court held that the CISG does not differentiate between delivery of different goods and delivery of goods that do not conform to the contract. The court noted that the CISG diverged from German civil law on this point, citing scholarly commentary as authority.

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=419&step=Abstract>

French: Recueil Dalloz (17 January 2002) No. 3, 318

German: [2000] Österreichische Zeitschrift für Rechtsvergleichung (östZRVgl) 33-36

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-Austria website <http://www.cisg.at/1_7499k.htm>; CISG online.ch website <http://www.cisg-online.ch/cisg/urteile/483.htm>; [2000] Transportrecht-Internationales Handel (TranspR-IHR) 48-50; [2000] Österreichisches Recht der Wirtschaft (RdW) No. 9; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=419&step=FullText>; Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht (2000) 33

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Willibald Posch & Thomas Petz, 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 1-24, at 15 [English translation of German commentary cited below] [Go to these commentaries for an excellent comprehensive analysis of Austrian case law on the CISG]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) §: 2-11 n.162; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 41; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 7 para. 30 Art. 25 para. 21a Art. 29 para. 4 Art. 35 para. 10 Intro. 81-84 para. 5 Art. 81 paras. 9, 9c, 17 Art. 82 paras. 13, 18; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 172; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 585

French: Babusiaux, Recueil Dalloz (17 January 2002) No. 3, 318-320

German: Thiele, [2000] Transportrecht - Internationales Handel 50-51; Willibald Posch & Ulfried Terlitza, Internationales Handelsrecht (2001) 47-56, at relevant page

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Case text (English translation)

Queen Mary Case Translation Programme

Supreme Court of Austria (Oberster Gerichtshof)

29 June 1999 [1 Ob 74/99k]

Translation [*] by Dr. Peter Feuerstein [**]

Translation edited by Todd J. Fox [***]

COURT COMPOSITION: PARTIES: COUNSEL: The Supreme Court, composed of its Vice-President Dr. Schlosser as presiding judge and Dr. Schiemer, Dr. Gerstenecker, Dr. Rohrer and Dr. Zechner as accompanying judges, in the matter of the Plaintiff Z, [seller], represented by Dr. Peter Zumhobel, Dr. Harald and Dr. Clemens Thiele, Attorneys at Law in Salzburg, versus the Defendant I Inc., [buyer], represented by Dr. Manfred Ainedter and Dr. Friedrich Trappel, Attorneys at Law in Vienna, and the intervener on the side of the [buyer], P Inc., represented by Dr. Dieter Cerha and Dr. Herbert Orlich, Attorneys at Law in Vienna, for Deutsche Mark 16,140.10 sA ...

PRIOR HISTORY: Upon the final appeal of the [buyer] and the final appeal of the intervener on the side of the [buyer], against the order of the Court of Appeals of Vienna [Court of Second Instance], in its capacity as Court of Appeals, dated 30 December 1998, (docket no. GZ 5 R 83/98g-30), whereby, upon the appeal of the [seller], the judgment of the Commercial Court [Court of First Instance] of 16 March 1998, (docket no. GZ 27 Cg 126/96a-25) was partly lifted.

The Supreme Court, in a non-public session, has rendered the following decision:

Grounds for the decision

Of the two partial claims by [seller] for 16,140.10 DM [Deutsche Mark] and 12,875.20 DM, the latter was undisputedly dismissed. Therefore, it is no longer dealt with.

[Background information]

In the context of a longer business relationship, [seller], domiciled in Germany, delivered cut and drilled dividing wall panels to a building site in Vienna serviced by the domestic [buyer]. The condition "ex factory" was agreed between the parties for all deliveries. In October 1992, non-formatted (i.e., neither cut, nor drilled) panels, manufactured for the [seller] by P-GmbH (below referred to only as manufacturer) in Peiting, Germany, were delivered to the [buyer] instead of the cut and drilled panels ordered in the contract. Employees of the parties agreed over the telephone on the return of these panels by the [buyer]. The assertion of the [seller] that, according to the agreement, the return of the panels to the manufacturer would have to be undertaken by the [seller] remained unproven. On 29 October 1992, at the time of the delivery by the forwarder commissioned by the intervener, the manufacturer confirmed the receipt of the panels without reservation on the CMR consignment note, showing the manufacturer as the recipient. While unloading the panels on the following day, the manufacturer established that they were damaged. It could not be established whether the damage originated in the course of the return transportation of the panels by the carrier retained by the intervener. On 26 March 1993, the [seller] sent an invoice to the [buyer] in the amount of 16,140.10 DM for "Transport damage of 29 November 1992 - Delivery from Vienna to Peiting."

[Seller's position]

[Seller] asserted in support of its claim for 16,140.10 DM , as far as still relevant, that the panels it sold for this amount had displayed transport damage after their return. The panels were received by the manufacturer in such a poor condition that they could only be used as burning material. The panels were not correctly shipped by the intervener. The [buyer] assumed the transportation risk.

[Buyer's position]

[Buyer] objected, as far as still relevant, that the returned panels had been accepted by the manufacturer without any reservation on the CMR consignment note. By delivering goods not in conformity with the contract, the [seller] has to bear the risk of the return transportation of the goods. The agreement on the transfer of risk "ex factory" refers only to panels which were ordered [as per the contract], but not to the panels concerned in this case, namely, [panels] which were not delivered in conformity with the order. In any event, the [buyer] had not caused the damage to these panels.

[Intervener's position]

The intervener mainly alleged that the goods were, at least, partly damaged at the time of the delivery to [buyer]. The asserted damage originated prior to the loading and after the delivery of the goods and did not occur within the [seller's] charge. The [seller] had first sent written notice to the intervener concerning the claimed damages on 4 May 1993. Any claim arising from transportation damage expired, according to Art. 30 of the CMR, because the transported goods were received without any reservation and therefore are to be considered as received in the condition described in the consignment note. The [buyer] is also not liable for transportation damage since it did not act as carrier.

[Commercial Court (Court of First Instance) of Vienna - Handelsgericht Wien]

The Court of First Instance rejected the [seller's] claim due to the statute of limitations (prescription period for receipt of notice). Furthermore, the recipient of goods not in conformity with the contract does not have a duty of care.

[Court of Appeals of Vienna - Oberlandesgericht Wien]

The Court of Appeals affirmed the decision of the Court of First Instance concerning the partial rejection of the [seller's] claim for 12,875.20 DM sA [sic]; quashed the partial rejection of the [seller's] claim for 16,140.10 DM sA [sic]; returned the case to the Court of First Instance for any supplementary proceedings and a new decision; and found the final appeal to the Supreme Court to be admissible. Since, due to the stated detailed considerations according to the applicable German law, the statute of limitations had not yet run, the Court of First Instance would have to decide on the prerequisites for liability according to Art. 74 et seq. CISG and reach the relevant conclusions in the resumed proceedings. The Court of First Instance only made the negative finding that it could not be ascertained that the damage to the goods occurred in the process of the return transportation. However, if the debtor fails to fulfill an obligation he is liable under Art. 74 CISG regardless of his misconduct or fault [Garantiehaftung]. This liability, which in principle is not dependent on fault, is limited by the liability exemption under Art. 79 CISG, which must be proved by the debtor.

Reasoning of the Supreme Court of Austria - Oberster Gerichtshof

The legal remedies of the [buyer] and the intervener are admissible and justified. They are treated together.

     a) Since the sales contract in question was concluded before 1 December 1998 and it was also avoided / terminated by common consent, the provisions of EuVU, BGBl [*] III 1998/20 cannot be applied to these facts. The General Business Conditions of the [seller] were neither expressly nor implicitly included in the contract. The parties have also not contested this in their appeals.

The Court of Appeal correctly found that the United Nations Convention for the International Sale of Goods ("CISG"), which was enacted in Austria on 1 January 1989 (BGBl 1988/96) and on 1 January 1991 in Germany, is applicable to the contractual relationship of the parties. The object of the dispute between the parties is a contract for the sale of "goods" from October 1992. The disputing parties have their respective places of business in Austria and Germany, thus, in different Contracting States (Art. 1(1) CISG), and the parties also have not contractually excluded the application of this Convention (Art. 6 CISG).

The CISG creates substantive law (Kozio/Welser, Grundriss, 10th ed., 341).

     b) For [seller's] delivery to the [buyer] the term "ex factory" was stipulated; thus, the buyer had to bear the transportation risk from the factory of the German manufacturer. The delivery of the panels produced by the manufacturer, which differed from those ordered since they were not "formatted", constitutes a breach of contract. The CISG broadly interprets the concept of defective goods (lack of conformity to the contract) and understands by this also the delivery of goods different from those owed. Therefore, a false / incorrect delivery (Falschlieferung) is to be judged according to Art. 35 et seq. CISG and is not a case of non-delivery (Nichtlieferung). This equally applies to the deviation in quality of generic goods ("Qualitäts-aliud"), as well as deviation in description ("Identitäts-aliud") for the sale of specific, ascertained goods. In contrast to 378 HGB [*], it does not matter whether the incorrect delivery is subject to approval, nor does it depend on the degree of the deviation (Karollus, in Honsell, Kommentar zum UN-Kaufrecht, Art. 30, Annotation 9 with further references; ibid., UN-Kaufrecht 105, Wilhelm, UN-Kaufrecht 12 et seq., 21). For breach of contract, the CISG allows the buyer to claim compensatory damages and provides several other alternative legal remedies, among them the right of avoidance of the contract under Art. 49 CISG. In the present case, the parties have validly and by mutual understanding (Art. 6 CISG) agreed on the avoidance of the sales contract. Through Art. 29 CISG, which regulates modification or termination of the contract, it is clear that the formation of such contracts is subject to the CISG. The avoidance of a sales contract subject to the CISG is, in principle, not subject to formal requirements. Thus, avoidance could also be done orally, or as here, over the telephone, as well as impliedly (Karollus, op. cit., Art. 29, Annotation 9 with further references; Herber/Czerwenka, Internationales Kaufrecht, Art. 29 UN-K, Annotation 4). A reservation as to form under Art. 29(2) CISG was never asserted.

The CISG does not regulate the ownership aspects or the consequences deriving from a consensual avoidance of contract. It is up to the parties to reach adequate arrangements or agree upon adequate provisions for the avoidance (Schlechtriem, in v.Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, 2d ed., Art. 29 Annotation 4, with further references in footnote 17; see also Weber, in Honsell, Kommentar zum UN-Kaufrecht, Preliminary Statements, Art 81-84 Annotation 7). Should, however, as here, no adequate arrangements have been made, the resulting gaps are to be filled under the CISG and not through recourse to national law (Weber, op. cit., Preliminary Statements, Arts. 81-84, Annotation 1 with further citations). In so far as the parties do not autonomously regulate the legal consequences of the consensual avoidance of the contract in their agreement for avoidance - particularly the bearing of risk, the place of performance and the bearing of the costs -the remaining gap must be filled by interpretation according to Art. 7(2) CISG, with reference to Art. 81 et seq CISG.

According to the CISG, the contract is not entirely annulled by the avoidance, but rather it is "changed" into a winding-up relationship (Ziegler, Leistungsstörungsrecht nach dem UN-Kaufrecht, 195 with further citations in footnote 142; Leser, in v.Caemmerer/Schlechtriem, op. cit., Art. 81 Annotation 9; Weber, op. cit., Art. 81 Annotation 4 f, 15 with further citations.) The parties are released from their primary contractual obligations due to the avoidance according to Art 81(1) CISG. Exceptions from this are obligations for damages, as well as other provisions which regulate the consequences of the avoidance for the parties, as set out in the second sentence of Art. 81(1) CISG. This encompasses all provisions connected with the undoing of the contract, such as the obligation to "return" (Rückgewahr / "restitution") all items received in connection with the contract (Ziegler, op. cit., Art. 81 Annotation 10), including the obligation to send back delivered goods (Leser, op. cit., Art. 81 Annotation 10). Along with restitution, the results of the (partial) performance of the contract must be dislodged, but not through the establishment of a hypothetical goal such as "as if the contract had been duly performed" or "as if the contract had never been concluded." Rather, as in Roman law, the claim for the return of the rendered performance (Rückforderung) is permitted and thereby tied to the item of performance itself (Leistungssache) and to its fate. Articles 81-84 CISG contain at their core a risk distribution mechanism, which within the framework of the reversal of the contract (restitution), overrides the general provisions on the bearing of risk contained in Art. 66 et seq. CISG (Leser, op. cit., Preliminary Statements, Art. 81-84, Annotation 10.)

The CISG does not contain any provisions pertaining to the place of performance for restitution. Nevertheless, the gaps arising from the absence of relevant agreements within the framework of Art 7(2) CISG can be bridged without recourse to national provisions (Leser, op. cit., Art. 81 Annotation 17; Weber, op. cit., Art. 81 Annotation 21). The place of performance for the obligations concerning restitution should mirror the place of performance for the primary contractual obligations (Posch, in Schwimann, 2d ed., CISG Art. 81, Annotation 9). If, under Art. 31 CISG, the delivery obligations require the goods to be picked up at the seller's place of business (or as here, the manufacturer's), or if the seller is obliged to give the goods to a carrier for delivery, then, in the event of a consensual avoidance of the contract and in the absence of a different arrangement, the seller has to pick up the goods at the buyer's place of business or the buyer has to hand the goods over to a carrier for return delivery to the seller (or, as here, the manufacturer), respectively. Restitution is to be effected in these cases at the buyer's place of business (Leser, op. cit., Art. 81 Annotation 17 et seq.; Weber, op. cit., Art. 81 Annotation 21; Herber/Czerwenka, op. cit., 81 Annotation 2, with further citations; Posch, op. cit.). Since in this case, the primary contractual performance was of a sale by delivery to a place other than the place of performance, with the risk passing to the German manufacturer, this arrangement for the passing of the risk must also reversibly apply for a consensual avoidance of the contract. Subsequent to the consensual avoidance of the contract, the passing of risk to the seller is effected with the handing over of the goods to be returned to the commissioned carrier at the place of business of the buyer. According to the agreement, the [buyer] had to send the panels back to the manufacturer. The [seller] also did not claim that the delivery of the panels to the intervener as a commissioned carrier was equal to a breach of contract. Moreover, in filling the gap, the principles in Art. 82 CISG are to be applied (loss of right to declare the contract avoided or to deliver substitute goods). Under these provisions, the principle of returning the goods undamaged as a prerequisite to exercising the right of avoidance suffers considerable restrictions which turn the principle into an exception (Leser, op. cit., Art. 82, Annotation 16). According to Art. 82(2)(a) and (b) CISG, the seller bears the risk during the undoing of the contract for any deterioration and/or loss of the goods, so far as this is not due to acts or omissions of the buyer. Thus, the seller alone bears the risk of chance accidents and force majeure. This one-sided or predominant burdening of the seller with the risks of restitution can only be explained by the [seller] having caused these risks with his breach of contract (Weber, op. cit., Art. 82, Annotation 16; Leser, op. cit., Art. 82, Annotation 18). In the absence of a differing agreement, this Court is of the opinion that the application of these rules is to be considered regarding the rights of the parties in consensual avoidance (Leser, op. cit., Art. 82, Annotation 18 with further evidence in footnote 47).

The [seller's] claim for compensation, to be judged in accordance with the CISG, can only successfully be asserted if the deterioration to the goods is due to acts and omissions of the [buyer]. The [seller] has not shown this. The [seller] itself claimed that it was the result of the transportation of the goods to the manufacturer that the panels arrived in such a desolate condition, useful only as burning material. This assertion is no different than claiming that the damage occurred during the return transportation. That this transportation - as the [seller] furthermore asserted - was done contrary to agreement, was not proven. Since the [seller] bore the risk of the return transportation, as already discussed above, the [seller] has to carry its consequences. The legal understanding of the Court of Appeal [Court of Second Instance], that each party is liable for restitution of performance in the same way as for the primary obligations of the contract - meaning, in the event of the loss of the goods by the buyer after the avoidance of the contract, the buyer is obliged to pay damages in accordance with Art. 74 et seq. CISG (Ziegler, op. cit., 196; Schönle, in Honsell, Kommentar zum UN-Kaufrecht, Art. 74 Annotation 19 with further citations) - is irrelevant due to the stated legal position pertaining to the transfer of risk.

The questions concerning the statute of limitations objection, as well as other objections of the [buyer] and the intervener pertaining to the foundation of the claim (the [seller] cannot have suffered any damage) and to the amount of the claim (the incorrectly cut panels no longer had a market value), or the possibility of exoneration of the party having committed the breach of contract according to Art. 79 CISG, need not be addressed here. It is also unnecessary to discuss the foreseeability rule under Art. 74(2) CISG based on the French and Anglo-American legal tradition (the so-called contemplation rule) or the obligation to mitigate damages according to Art. 77 CISG. Whether the [seller] has to bear the costs for the return transportation is likewise not to be decided here (cf. Leser, op. cit., Art. 81, Annotation 19; Weber, op. cit., Art. 81, Annotation 22 ).

[Order of the Supreme Court]


FOOTNOTES

* For purposes of this translation, the Appellant-Defendant of Austria is referred to as [buyer]; the Respondent-Plaintiff of Germany is referred to as [seller]. Monetary amounts in Austrian schillings are indicated by [sA], amounts in German currency (Deutsche Mark) by [DM].

Translator's note on other abbreviations: BGBl = Bundesgesetzblatt [Federal Official Journal]; HGB = Handelsgesetzbuch [Austrian Commercial Code]; ZPO = Zivilprozessordnung [Austrian Civil Procedure Code].

** Dr. Peter Feuerstein is an International Legal Consultant. He conducted his post graduate research at Cambridge University, England, where he was a Fellow of Clare College in preparation of his Doctoral Dissertation. He received his Dr. jur. from Philipps-Univeristy of Marburg, Hessia, Germany, in 1977. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

*** Todd J. Fox is an Associate of the Institute of International Commercial Law of the Pace University School of Law. He received his LL.M. summa cum laude from Albert-Ludwig-Universität Freiburg.

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