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Switzerland 23 April 2002 District Court Schaffhausen (Sunglasses case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020423s1.html]

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Case identification

DATE OF DECISION: 20020423 (23 April 2002)


TRIBUNAL: KG Schaffhausen [KG = Kantonsgericht = District Court]

JUDGE(S): Dr. A. Dolge (Vorsitzende); A Cantieni, P. Sieber (Kantonsrichters); J. Storrer (Gerichtsschreiberin)


CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)


Classification of issues present



Key CISG provisions at issue: Articles 4 ; 47 ; 49(2)(a) ; 78 [Also cited: Article 6 ]

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Issues covered and issues excluded: distributorship agreements excluded; Sales orders under distributorship agreement covered];

47A [Buyerís right to fix additional final period for performance];

49A [Buyerís right to avoid contract];

78B [Rate of interest]

Descriptors: Scope of Convention ; Distributorship agreements ; Set-off ; Nachfrist ; Avoidance ; Interest

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/731.htm>

Translation (English): Text presented below



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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Canton Court (Kantonsgericht) Schaffhausen
23 April 2002 [11/1999/35]

Translation [*] by Ruth M. Janal [**]

Decision of the 1st civil chamber of the Canton Court. Dr. iur. A. Dolge, Presiding Judge; A. Cantieni and P. Sieber, Canton Judges; lic. iur. J. Storrer, Court Clerk.


A. The [seller], a stock corporation under Italian law with seat in Italy, is a world-wide producer, distributor and marketer of sunglasses as well as other glasses. After the [seller] took over Italian Company X. by way of merger on 9 April 1998, [seller] demands from the [buyer], a company which engages in business with products of the optical industry, payment of Sf [Swiss francs] 166,090.- plus interest at a rate of 5% from 27 January 1997 for three combined shipments of glasses, which the [buyer] is alleged to have ordered from Company X. between September of 1995 and the end of October 1996. The [buyer] declared a set-off with a claim for compensation for the distribution network developed by the [buyer].

B. On 1 December 1998, the [seller] initiated enforcement no. 98/513,666 regarding Sf 166,090.- plus interest at a rate of 5% from 27 January 1997. After the [buyer] raised a legal objection to the enforcement, the present case became pending on 12 February 1999 through submission of the order of the Justice of Peace Office [...] to the Canton Court Schaffhausen.

C. By decision of 16 February 1999, the [seller] was ordered to pay an advance on court fees, which [seller] paid within the set period.

D. On 3 June 1999 (posted on 31 May 1999), the [seller] submitted its statement of claim and requested that:

     1. The [buyer] be ordered to pay to the [seller] Sf 166,090.- plus 5% interest from 27 January 1997;

     2. The court grant the [seller] the final entitlement regarding the enforcement no. 98/513,666 of the Enforcement Bureau Schaffhausen (payment order of 8 December 1998) for Sf 166,090.- plus interest at a rate of 5% from 27 January 1997;

     3. The cost of the proceedings and the reimbursement of [seller]ís expenses be borne by the [buyer].

E. On 20 October 1999, the [buyer] submitted its statement of defense with the request that the claim be dismissed and the [seller] be ordered to bear the costs of the proceedings and reimburse the [buyer] for its costs.

F. The main proceedings, during which both parties held to their previous requests, took place on 14 December 1999. Subsequently, the parties were granted the opportunity of a written reply, respectively a rejoinder.†

G. In its reply of 28 February 2000, the [seller] held to the requests made in its statement of claim.

H. The [buyer] submitted its rejoinder on 5 June 2000 (posted on 31 May 2000).

I. Since the [buyer] in its rejoinder had made new submissions regarding the set-off claim asserted by it, the [seller] was asked to give a voluntary comment and both parties were given the opportunity to make a statement regarding the applicable law. The [buyer] made a submission on 15 September 2000 and the [seller] stated its opinion on 31 October 2000.

J. By decision of 19 December 2000, the Canton Court ordered the production of evidence.

K. After the period granted to the parties for the production of evidence had repeatedly been extended in view of settlement negotiations, the [seller] on 17 September 2001 (posted 14 September 2001) handed in [seller]ís brief offering evidence. The [buyer] reacted with submission of 16 October 2001.

The partiesí submissions in their briefs will be referred to, insofar as necessary, in the Courtís considerations.


1. The [seller] is a stock corporation under Italian law with seat in Italy (excerpt from the commercial register of 23 April 1999). The [buyer] is a Swiss stock corporation with seat in [...] (cf. the file memo of 5 January 2001). Since the case is a commercial one, the question of international jurisdiction is governed by the Lugano Convention (Art. 1 LugÜ [*]). The facts upon which the [seller] bases its claim, go back to the time period between 1995 and 1996. During this time period, Company X. (which was taken over by the [seller] in the spring of 1998) had settled its collaboration with the [buyer] in an "Agreement" of 1 January 1994. The limited contractual length of this agreement had been prolonged until 31 December 1997. Article 22 of the "Agreement" provides that the place of jurisdiction for possible conflicts arising out of the contract shall be [...] in Italy. However, after the [buyer] without reservations entered an appearance before the Canton Court in Schaffhausen, where the claim was filed by the [seller], the Canton Court possesses jurisdiction (Art. 18 LugÜ [*]; the present case does not concern a claim where another court has exclusive jurisdiction). The Court also possesses jurisdiction over the subject matter (Art. 78(2) KV [*] in connection with Art. 73a(1)(a) ZPO [*]) with respect to the sum in dispute (Sf 166,090.- plus interest).

2. The "Agreement" of 1 January 1994 formed between the former Company X. and the [buyer] was placed under Italian law following its Article 22. By amendment of 28 June 1995, the contract between the parties was extended until 31 December 1997. The orders, deliveries and invoices presently in question all fall into this contractual period. The rights and obligations of Company X. all passed on to the [seller], who is that companyís legal successor as a result of the merger (cf. [seller]ís excerpt of the commercial register). The agreement under discussion is a so-called exclusive distribution contract (cf. generally in lieu of many authors: Walter R. Schluep, Innominatverträge, Basle 1979, p. 839 et. seq., cf. specifically the description of the contractual parties as "Company" and "Distributor" in the "Agreement", the granting of an exclusive sales right within a certain territory and the provision of a loyalty duty in Articles 2, 3 and 4, the obligation to purchase goods and the obligation to adhere to fixed prices in Articles 5 et seq., and so forth). Following the partiesí choice of law, the distribution contract was to be governed by Italian law.

Italy is a Contracting State to the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (so-called "Vienna Sales Law", abbreviated CISG). The Italian law therefore refers sales contracts between parties, who have their places of business in different (Contracting) States, to the provisions of the CISG. It was neither submitted nor can it be gathered from the "Agreement" of 1 January 1994 that the parties in the present case excluded the application of the CISG, as it would have been principally possible under Art. 6 CISG. Following the general scholarly opinion, distribution agreements do not fall under the scope of the CISG. However, later contracts for the delivery of goods, which are formed in the course of the performance of the framework distribution agreement, do constitute sales contracts in the meaning of the CISG (cf. Honsell, Kommentar zum UN-Kaufrecht, Berlin, Heidelberg, New York 1997, Art. 2 CISG n. 7. Since the subject of the present dispute are solely singular orders, respectively singular deliveries and the corresponding invoices, these consequently fall under the application sphere of the CISG.

3. The [seller] demands from the [buyer] payment of [seller]'s invoices of 8 October 1996, 9 October 1996, 21 October 1996, 29 October 1996 and of 31 October 1996 for the delivery of various glasses, which were allegedly made following the [buyer]ís orders between the beginning of September 1995 and the end of October 1996 (invoice no. 1040/E, invoice no. 1046/E, invoice no. 1089/E, invoice no. 1118/E, invoice no. 1137/E).

     a. In particular, the following orders are concerned: order of 1 September 1995 (5 pairs of glasses each of the models 0856 and C453V), fax order of 19 January 1993 (5 pairs of glasses of the model M483, 10 pairs of glasses of the model 0830 95/33, 15 pairs of glasses of the model MM224 CA, 5 pairs of glasses of the model SCOOP DB), the fax order of 28 March 1996 (10 pairs of glasses of the model 009 95/33, 5 pairs of glasses of the model SCOOP, 5 pairs of glasses of the model Randy, 5 pairs of glasses of the model VARIVIC, 10 pairs of glasses of the model MC284 7C/33, 5 pairs of glasses of the model Denis DR135, 10 pairs of glasses of the model Denis GM/99 and 5 pairs of glasses of the model MM444 DE/35, the order placed on the trade fair in Cologne on 27 April 1996 (20 pairs of glasses of the model 2019V 511), the fax order of 14 May 1996 (overall 230 pairs of glasses of various models and 15 pairs of glasses of the model MC 403 6P/33), the order placed over the phone on 24 May 1996 (5 pairs of glasses of the model 9623), the fax order of 21 June 1996 (18 pairs of glasses of the model 2520S 24/33), the fax order of 3 and 11 July 1996 (each time 15 pairs of glasses of the model 2520S 24/33), the fax order of 12 and 15 July 1996 (overall 175 pairs of glasses of various models and 10 pairs of glasses of the model MM444 CA/35 as well as 5 pairs of glasses of the model MM444 DE/35), the order placed at the trade fair in Campionatura on 7 October 1996, the fax order of 9/10 October 1996 (one pair of glasses each of the models 25045 and 0841), the order placed via telephone on 11 October 1996 (10 pairs of glasses of the model 3010S, 16 pairs of glasses of the model 0864, 12 pairs of glasses of the model 0866 and 17 pairs of glasses of the model SAMO), the order placed by fax, respectively over the phone on 23 October 1996 (10 pairs of glasses of the model M3O1OS CR136, one pair of glasses of the model VARIVIC 9175, one pair of glasses of the model VARIVIC Reed as well as various lenses) and finally the fax order of 31 October 1996 (one pair of glasses of the model 69292). The [seller] submitted to the files numerous fax messages from the [buyer], letters of confirmation as well as excerpts from [seller]ís delivery accounts.

     b. In [buyer]ís statement of defense of 20 October 1999, [buyer] submits that the orders that form the basis of [seller]ís claim were made in the time during which the [seller] (from 1995 onwards) started "to take over Company X. and for a large part also the sales agencies in the various European countries." According to the [buyer], the parties were at all times aware of the fact "that the sale of the glasses would for the preponderant part be performed by the employees who had already been taken over by the [seller] or would soon be taken over by the [seller]." During the main proceedings on 14 December 1999, Mr. B., the sole member of the [buyer]ís directorate, declared that: "Regarding the orders one can refer to the invoices no. 1040/E and 1046/E. The main positions amount to over Sf 140,000.- These orders were placed at the end of 1995 and in the spring of 1996."

It is then undisputed that the [buyer] accepted the delivered glasses. Mr. B. submitted that he called "Italy" and enquired from the responsible persons of Company X. (the [seller]ís predecessor in title), at what point in time they would take back the goods, but that Mr. B. never received an answer despite repeated requests for information. However, under Article 5b(2) of the "Agreement", "The Company" (respectively its successor in title) was not obliged to take back any goods. The [buyer], on the other hand, would have been entitled to fix an additional period for delivery and therefore for the performance of the contract in case of a delay of the delivery (Art. 47 CISG). In case of a late delivery already made, the [buyer] would have been entitled to declare the respective sales contracts avoided within a reasonable time (Art. 49(2)(a) CISG). In the present case, the [buyer] did not take any measures in that direction. For the sake of completeness, let it be stated that the "Agreement" does not itself provide for the rights of the "Distributor" in the case of late performance of the "Company" (while there are provisions concerning the default in payment of the "Distributor" as well as the passing of risk and a possible discount Ė cf. Article 17c and Article 7 in connection with "exhibit B").

     c. It can therefore be recorded that the [buyer] never denied in a substantiated manner the orders and deliveries which were submitted by the [seller] in detail. In its rejoinder, [buyer] solely states Ė answering to the [seller]ís reply, which rightfully noted that the [buyer] made respective statements during the main proceedings on 14 December 1999 Ė that [buyer] never admitted that the orders and deliveries were performed correctly. It is also definite that the [buyer] never asserted any of its rights possibly flowing from the (alleged) late delivery. Consequently, the [seller] is to be granted the amount claimed for the deliveries of glasses, including the interest claimed from 27 January 1997. The [buyer] never made any submissions regarding the point in time from which interest is claimed; the rate of interest claimed is within the usual frame.

4. The [buyer] seeks to set off against the [seller]ís claim [buyer]'s own claims for an adequate settlement and compensation for the development of a distribution network as well as claims resulting from the [seller]ís unfaithful conduct. [Buyer] in particular submits that it was envisaged in several meetings between the [seller]ís responsible persons and Company X. on the one hand, as well as the [buyer] on the other hand, that the [buyer] would be taken over by the [seller], or that a sum in the millions would be paid for the distribution network built up in Switzerland and Germany. [Buyer] submits that it was then led to place the orders upon which the [seller]ís claims are based, in this belief, and it was in this context that the [buyer] conferred with the [seller]ís general manager on 21 January 1997 regarding [buyer]ís claim of Sf 998,600.-. Furthermore, the [seller] also reimbursed the distribution companies in the Netherlands, Belgium, France and Spain for the development of their distribution networks. The [seller] contests the [buyer]ís claim for indemnification. Such a claim resulted neither from the distribution agreement, nor were the [buyer]ís representatives ever given the prospect of a return of the glasses and a "generous compensation" ([seller]ís brief of 31 October 2000).

     a. Under Art. 148(2) IPRG [*], the applicable law for the extinguishment of a claim by way of set-off is determined by the law applicable to the claim against which the party is seeking to set-off. Since the [buyer] explicitly refused the Courtís suggestion to apply Swiss law to the legal questions regarding the [buyer]ís set-off claim (cf. [buyer]ís submission of 22 May 2001), the Court applies the following Italian law both to the set-off claim itself as well as to the question whether the prerequisites for a set-off (Art. 1241 et seq. C.c. [*]) have been met.

     b. The "Agreement" of 1 January 1994, which was submitted to the files by the [buyer], does not provide a basis for the asserted set-off claim for compensation. Article 15 to the contrary explicitly states that the "Distributor" does not gain the position of an agent (the legal provisions regarding the agency contract generally provide for a customer compensation; cf. Art. 418u OR [*] and Art. 1751 C.c. [*]). The [buyer]ís letter to the [seller] of 21 January 1997, in which a sum of Sf 998,600.- for the take-over of stock, payment of an indemnification for Switzerland and Germany, as well as a compensation for the "take-over" of representatives is claimed, is solely the [buyer]ís suggestion for a "fair solution to regulate the cooperation" ([Buyer]ís letter to the [seller] of 21 January 1997).

     c. Following federal case law and some of the leading scholars, a claim for compensation in analogy to Art. 418u OR [*] is excluded for the exclusive distribution contract (BGB 88 11169, p. 1 et seq.[***]; cf. for references to scholarly opinion: Walter R. Schluep and Marc Amstutz, in: Kommentar zum Schweizerischen Privatrecht, Obligationenrecht 1, Art. 1-529 OR, 2nd ed., Basle 1996, introduction before Art. 184 et seq., n. 154). Other authors want to grant the purchaser compensation, if he is integrated in the supplierís distribution system to such an extent that its economic situation is close to that of an agent (Walter R. Schluep, op cit., p. 848 and further authors cited by Walter R. Schluep and Marc Amstutz, op cit., introduction before Art. 184 et seq., n. 145). The [buyer] does not allege such a situation, and Article 15 of the "Agreement" puts special emphasis on the fact that the "Distributor" does not possess a position similar to that of an agent. Under Italian and French law, a compensation for exclusive distribution agreements is also rejected; the purchaser is at the most entitled to compensation in case of the supplierís unfaithful conduct (i.e., possibly in case of improper termination of contract and other circumstances; cf. the remarks in: Walter R. Schluep, op cit., p. 848, Fn. 52).

     d. The [buyer] consequently had the burden of proof that the parties in the present case had agreed upon an indemnification for the distribution network, respectively that the [buyer] was entitled to and reinforced by the [seller]ís conduct to trust [buyer]'s belief that it would receive a generous compensation (cf. the order upon the production of evidence of 19 December 2000).

     e. After the time allowed for the production of evidence was repeatedly and in the end with the remark "final" prolonged for both parties, the [seller] requested a further extension of the period for both parties until 20 June 2001, pointing to settlement negotiations ([seller]ís submission of 21 May 2001). With brief of 21 May 2001, the [buyer] submitted its production of evidence. With letter of 1 June 2001, the Court drew the [buyer]ís attention to the fact that [buyer]ís submission did not meet the requirements for an evidence production and that it was therefore sent back for improvement until 20 June 2001. The [buyer] was furthermore informed by pointing to Art. 177 ZPO [*] that submissions after the completion of the exchange of documents, such as the queried submission of evidence, was principally excluded. It was pointed out that [buyer] was held to name only means of proof (witnesses and documents) to the singular numbers of the evidence production order, that is presently to the main proof [buyer] was burdened with, no. 1.1 to 1.1.5 (letter of the Court Clerk of 1 June 2001).

In the following period, both parties sought further extensions of the time limit by pointing to settlement talks. While the [buyer] asked for a further extension until 16 October 2001, which was granted with the remark "final", the [seller] filed its evidence submission on 14 September 2001. By letter of 11 October 2001 (posted 12 [sic] October 2001) the [buyer]ís representative requested an extension of the time period by one month until mid-November 2001, with the remark that [buyer] was dependent on legal advice and that [buyer]ís representative had been sick in the past 14 days. On 12 October, [buyer]ís representative was informed both over the phone and by certified mail that no further extension of the time limit was granted (memo and letter of the Court Clerk of 12 October 2001). On 17 October 2001 (posted 16 October 2001), the [buyer] filed a submission in which [buyer] firstly gives explanations regarding the relationship between the parties and expounds how the [buyer] sought contacts to various persons in view of the current proceedings. [Buyer] further explicitly remarks that it was told by the Court to solely name means of proof regarding the individual numbers of the evidence production order in its evidence submission. However, in the course of the brief the [buyer] nevertheless proceeds to give a statement of fact, divided between the numbers 1.1 to 1.1.5. Finally, the [buyer] again submits "to underpin" its statements attachments that were already in the files ([buyer]ís submission of evidence of 16 October 2001, p. 3 et seq.). In doing so, the [buyer] again submitted a brief which evidently failed to satisfy the legal requirements, even though the [buyer] was informed with the evidence production order of 19 December 2001 what was expected from it (that is, naming all means of proof, witnesses with their name and complete address) Ė and despite the fact that [buyer]ís first evidence submission was returned to it for improvement with letter of 1 June 2001 which contained information regarding the required content of an evidence submission. Therefore, [buyer] is hit by the threatened consequences of its default, and the Court assumes a waiver of further means of evidence (apart from the ones already named during the main proceedings; cf. insofar Art. 183(3) ZPO [*]; cf. Annette Dolge, Der Zivilprozess im Kanton Schaffhausen im erstinstanzlichen ordentlichen Verfahren, Zurich 2001, p. 237 et. seq.).

     f. The [buyer] solely requested during the main proceedings that the witnesses [...], [...] and [...] be heard regarding [buyer]ís submission that the [seller]ís general manager (respectively the [seller]ís predecessor in title) had congratulated the [buyer]ís employees, who were present in Cologne at the time, on their sales success. However, this or a similar evidence question was not included in the evidence proceedings Ė as these circumstances of fact are irrelevant for the decision-finding Ė so that the Court will not hear the witnesses called upon. Nothing can be inferred from the documents in the files in favor of the set-off claim asserted by the [buyer] (cf. 4b above).

     g. If an allegation remains unproven, the burden of proof determines to whose disadvantage a certain question is to be decided (Frank/Sträuli/Messmer, Kommentar zur zürcherischen Zivilprozessordnung, 3rd ed., Zurich 1997, ß 136 n. 5). In the present case, the [buyer] did not submit the main proof due to its default, which is why the [seller] is no longer obliged to submit evidence to the contrary (Frank/Sträuli/Messmer, op cit., ß 136 n. 22). The claim which [buyer] was seeking to set-off against the [seller]ís claim therefore turns out to be unfounded.

5. Corresponding to the outcome of the proceedings, the [buyer] has to bear the cost of the proceedings (court fees and the reimbursement for the other partyís legal expenses, Art. 254 in connection with Art. 108 ZPO [*]). The [seller] is granted final entitlement for the claim asserted by it over Sf 166,090.- plus 5% interest from 27 January 1997 in the enforcement no. 98/513,666 (of the Enforcement Bureau Schaffhausen (payment order of 8 December 1998).


It is unanimously decided that the claim is justified and the counterclaim is unjustified. It is held under the law that:

     1. The [buyer] is ordered to pay to the [seller] Sf 166,090.- plus interest at a rate of 5% from 27 January 1997.

     2. The [seller] is granted final entitlement regarding the enforcement no. 98/513,666 of the Enforcement Bureau Schaffhausen (payment order of 8 December 1998) for Sf 166,090.- plus interest at a rate of 5% from 27 January 1997.

     3. The [buyer] bears the cost of the proceedings, consisting of the Justice of Peace costs in the amount of Sf 90.-, a court fee of the Canton Court in the amount of Sf 10,000.- and Sf 165.- cash expenses.

     4. The [buyer] is ordered to reimburse the [seller] for Sf 49,964.60, that is, the extent of [seller]ís attorneyís invoice.

     5. Written notification to the parties of this decision in its complete version as well as of the tenor after the decision obtains legal validity. The parties may appeal the decision within ten days after delivery of the decision to the High Court of the Canton Schaffhausen. The appeal is to be filed in duplicate version with the Court Office of the first instance, Herrenacker 26, 8200 Schaffhausen, and needs to state which of the numbers of the tenor (after the word "held" on page 11) is appealed and which modifications are requested. No reasons need to be given for a request for modification (Art. 339 et seq. ZPO [*]).


* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Italy is referred to as [seller]; the Defendant of Switzerland is referred to as [buyer]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sf].

Translatorís note on other abbreviations: C.c. = Codice civile [Italian Civil Code]; IPRG = Gesetz über das Internationale Privatrecht [Swiss Code on Private International Law]; KV = Kantonsverfassung [Constitution of the Canton Schaffhausen]; LugÜ = Luganer Übereinkommen [EC EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters - Lugano, 16 September 1988]; OR = Bundesgesetz vom 30. März 1911 betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht) [Swiss Code on the Law of Obligations]; ZPO = Zivilprozessordnung [Code on Civil Procedure of the Canton Schaffhausen].

** Ruth M. Janal, LL.M. (UNSW), a Ph.D. candidate at Albert-Ludwigs-Universität Freiburg, has been an active participant in the CISG online database of the University of Freiburg.

*** Translatorís note: This citation most likely contains two spelling errors. It should probably read BGE 88 III 69, p. 1 et seq. BGE is the abbreviation for Entscheidungen des Bundesgerichts [Official Reporter of Cases of the Swiss Supreme Court].

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