Germany 26 January 2000 Appellate Court Hamburg (Honey case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/000126g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 14 U 169/99
CASE HISTORY: 1st instance LG Hamburg 18 June 1999 [affirmed]
SELLER'S COUNTRY: [-] (plaintiff)
BUYER'S COUNTRY: [-] (defendant)
GOODS INVOLVED: Honey
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=719&step=Abstract>
German: OLG Report <http://www.olg-report.de/aktuell/vertr009.htm>
CITATIONS TO TEXT OF DECISION
Original language (German): OLGR Hamburg (2000) 464; see also cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/509.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=719&step=FullText>; Internationales Handelsrecht (IHR)  109
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English:  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 7 para. 35Go to Case Table of Contents
Queen Mary Case Translation Programme
26 January 2000 [14 U 169/99]
Translation [*] by Ruth M. Janal [**]
Edited by Jan Henning Berg [***]
REASONS FOR THE DECISION
The Defendant [Buyer]'s admissible appeal is without merit and unsuccessful.
I. [Applicable law]
The [Seller] possesses a claim against the [Buyer] under Art. 53 in connection with Art. 1(1)(a) CISG (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980).
The Convention applies to the contract even though the parties agreed that German law was to be applied. The CISG is incorporated law and therefore a part of the German legal system. Consequently, contractual choice of law clauses that provide for the application of the law of a Contracting State without any further remarks do not constitute an exclusion of the Convention (cf. BGHZ [*] 96, 313 et seq., 323).
II. [Seller's obligation to make delivery]
The [Seller] is entitled to payment of the remaining purchase price. The [Seller]'s obligation towards the [Buyer] was fulfilled according to §§ 362, 267 BGB [*] in connection with Art. 7(2) CISG and Art. 27(1) EGBGB [*].
The delivery, which was performed by company Y, constitutes performance through a third party (Erfüllung durch einen Dritten). A third party in terms of § 267 BGB is a person who performs the obligation owed neither as representative or as a vicarious agent of another person, nor as a means of performance of its own obligation towards the creditor, and who acts with the intent of fulfilling someone else's contractual obligation. By delivering the buckwheat honey, company Y performed the obligation owed by the [Seller]. Company Y delivered honey of the quality and quantity provided for in the contract between the [Seller] and the buyer. In doing so, company Y acted neither as the [Seller]'s representative -- it acted in its own name -- nor as the [Seller]'s vicarious agent. A person can only be considered a vicarious agent if he acts with the debtor's consent in the debtor's sphere of duties. However, the [Seller] did not plead that company Y acted with its consent. Insofar as the [Seller] submitted that it made use of company Y, [Seller] did not substantiate its pleadings.
Company Y also did not act towards fulfilling any obligation of its own when it delivered the honey. The company did not enter into the sales contract between the [Seller] and the [Buyer]. Such an entry into the sales contract would have constituted a takeover of the contract and would have required the consent of all parties involved (cf., i.e., BGH [*], BGHZ [*] 95, 88 (93)). Consequently, an agreement with the creditor at that time, i.e., with the [Seller], would have been necessary. It is legally impossible to enter into a contract solely by fact, without the consent of the current contracting parties. It is irrelevant in this context that the [Seller] would have been unable to deliver the honey itself due to the lack of a corresponding exporting license.
The obligation to deliver and the claim for the purchase price were also not extinguished under §§ 275, 323 BGB [*]. The fact that the [Seller] did not hold an exporting license did not exclude the possibility of a delivery via a vicarious agent.
When it delivered the buckwheat honey, company Y acted with the discernible intent to perform the [Seller]'s delivery obligation under the sales contract. In this context, the relevant standard is the horizon of the creditor of the obligation, in the present case the [Buyer]'s horizon (cf. BGHZ [*] 40, 276 and BGHZ 72, 248). The [Buyer] could reasonably understand the delivery by company Y as the performance of the sales contract with the [Seller], because the sales contract and the documents handed over to the [Buyer] had identical delivery numbers.
Therefore, the delivery of the honey constituted performance of the obligation owed by the [Seller].
The fact that the [Seller], in its alternative pleadings, also relied on the assignment of a claim does not make its submissions inconclusive. While it is true that a claim based on one's own right and a claim based on an assigned right exclude each other, the [Seller] bases its pleadings on the assigned claim only "as a precaution." The argument is made in the alternative, that is, in case the Court found that the [Seller] was not entitled to claim payment based in its own right. As has been explained above, that case did not eventuate. The matter of a set-off between the [Buyer] and company Y is therefore without importance.
The ancillary decisions [Translator's note: decisions on costs and the provisional enforceability] are based on §§ 97, 708 no. 10, 711, 713, 546(2) ZPO [*].
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff is referred to as [Seller] and the Defendant is referred to as [Buyer].
Translator's note on abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGH = Bundesgerichtshof [Federal Court of Justice, the highest German Court in civil and criminal matters]; BGHZ = Entscheidungen des Bundesgerichtshofs in Zivilsachen [Official Reporter for decisions by the Federal Court of Justice]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; ZPO = Zivilprozessordnung [German Code on Civil Procedural Law].
** Ruth M. Janal, LL.M. (UNSW) is a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.
*** Jan Henning Berg has been a law student at the University of Osnabrück, Germany, and at King's College, London. He participated in the13th Willem C. Vis Moot with the team of University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.Go to Case Table of Contents