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Germany 4 July 1997 Appellate Court Hamburg (Tomato concentrate case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/970704g1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 19970704 (4 July 1997)


TRIBUNAL: OLG Hamburg [OLG = Oberlandesgericht = Provincial Court of Appeal]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1 U 143/95 and 410 O 21/95

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: 1st instance LG Hamburg 7 March 1985 [reversed]

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Tomato concentrate

Classification of issues present



Key CISG provisions at issue: Articles 4 ; 8 ; 14 ; 47 ; 49 ; 76 ; 79 [Also cited: Article 72(2) ]

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): set-off];

8A [Interpretation of party's statements or other conduct];

14A1 [Basic criterion for an offer (intention to be bound in case of acceptance): definiteness of key terms];

47A [Buyer's right to fix additional period for performance];

49A [Buyer's right to avoid contract: grounds for avoidance];

76B1 [Damages based on current price at time of avoidance];

79B1 [Impediments excusing party from damages: general elements for excusing]

Descriptors: Scope of Convention ; Set-off ; Offers ; Nachfrist ; Avoidance ; Damages ; Exemptions or impediments

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=438&step=Abstract>


Original language (German): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=438&step=FullText>

Translation (English): Text presented below


English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.486, 490-491; Carla Spivack, 27 Pennsylvania Journal of International Economic Law (Fall 2006) n.153 [commentary on Art. 79 issues]

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Hamburg

4 July 1997 [1 U 143/95 and 410 O 21/95]

Translation [*] by Julian Waiblinger [**]



By judgment by confession of the District Court (Landgericht) Hamburg of 7 March 1995, the Defendant [buyer] was adjudged to pay to the Plaintiff [seller] FF [French francs] 442,000 along with interest for the settlement of a claim for the delivery of tomato concentrate. The claim is undisputed as regards the basis and the amount.

During the subsequent proceedings the [buyer] seeks to exercise the right of set-off with a damage counterclaim of FF 628,078.40 since the [seller] had only delivered one of twenty agreed truckloads of tomato concentrate. The [buyer] regards the contract thereupon as concluded since the [buyer] had accepted a corresponding offer by the [seller]; see [seller]’s fax of 6 September 1993 (annex B 1) and [buyer]’s fax of 7 September 1993 (annex B 19). The [seller], on the contrary, regards the fax according to annex B 1 as a non-binding proposal for the time being. The [seller] describes the truckload of tomato concentrate which the [seller] subsequently delivered to the [buyer] as a trial shipment.

Shortly after the exchange of the above-mentioned faxes, the prices for tomatoes in France increased considerably as a result of a harvest spoilt by rain. Until July 1994, the price for a 5 kg-tin with a net weight of 4.5 kg continuously amounted to FF 24.10. Considering that, as submitted furthermore by the [buyer], the [buyer] had negotiated with the [seller] and achieved a compromise at the Cologne food trade fair ANUGA in October 1993, namely that, for the time being, the [seller] would deliver ten further truckloads of the 1993 harvest and the rest of the harvest of 1994. A further supply by the [seller], however, did not take place. As a result, the [buyer] declared the contract avoided in January 1994 and demanded compensation from the [seller] amounting to "approx. 160,000 for the time being".

The District Court (Landgericht) took evidence and declared the judgment by confession, referred to in the more detailed statement of the facts, as unconditional by way of judgment of 26 September 1995 which was served upon the [buyer] on 27 September 1995.

The [buyer]'s appeal, lodged on 28 September 1995 and, subsequent to a corresponding extension of the time limit, legally justified by way of a brief which came in at the Hanseatic Appellate Court (Oberlandesgericht Hamburg) on 21 November 1995, is directed at that.

The [buyer] expands upon the point of view already taken at first instance. The [buyer] puts forward to base the damage claim from now on merely on the contract "which was concluded during the negotiations until 9 September 1993".

The [buyer] petitions: (1) to modify the challenged judgment; (2) to reverse the judgment by confession of the District Court; (3) to dismiss the claim. The [seller] petitions to dismiss the appeal. Moreover, the [seller] defends the challenged judgment.

The parties’ detailed submissions during the appeal are referred to as the written pleadings of the [buyer] of 21 November 1995, 20 March, 14 September, 3 December 1996 and 11 June 1997 and the written pleadings of the [seller] of 13 February, 4 September, 8 November 1996 and 4 June 1997.


The appeal is admissible and legally justified. The challenged judgment has to be modified; the judgment by confession of the District Court of 7 March 1995 has to be reversed according to § 302(4) s.2 ZPO [*] and the [seller]’s claim must be dismissed as it is not legally justified.

[Seller]’s undisputed claim was extinguished as a result of the set-off exercised by the [buyer] since the [buyer] was entitled to a damage counterclaim amounting to at least the principal claim. [Buyer]’s counterclaim arose since the [seller] did not completely fulfil the contract that was concluded with the [seller]'s fax of 6 September 1993 (annex B 1) and the [buyer]'s fax of 7 September 1993 (annex B 19). [Seller] was obligated to deliver twenty truckloads of tomato concentrate; [seller] merely delivered one truckload. This caused damage to the [buyer] amounting to at least the 623,078.40 FF (as calculated in annex B 15) since the market price for tomato concentrate had increased correspondingly during the [seller]'s default in delivery.

As far as the conclusion of the alleged contract of sale and the rights and duties resulting thereof are concerned, all that is to be judged by the United Nations Convention on the International Sale of Goods of 11 April 1980 (hereinafter CISG) as the parties have their place of business in different Contracting States (Arts. 1, 4 CISG), whereas all the other substantive issues of the case keep to French law as stated correctly by the District Court (Landgericht).

Thereby, it can be left open whether the claim put forward by the [buyer] stems from an additional contract, a kind of settlement on a diminished duty of the [seller] to deliver along with the duty to subsequent delivery, which was concluded in October 1993 at the Cologne food trade fair ANUGA as suggested by the [buyer]'s submissions which were contested by the [seller] and not regarded as proven by the District Court (Landgericht). Considering this modified additional contract would not exist, however, only the original contract on the delivery of twenty truckloads of tomato concentrate remained which was concluded by fax from the [seller] of 6 September 1993 (annex B 1) and fax with answer from the [buyer] of 7 September 1993 (annex B 19) according to the conviction of the adjudicative Chamber of the Court.

In that respect, the representative authority of the signatory of the [seller]'s fax "J.B. M" is beyond doubt since the submissions during the hearing with the sole judge of the Chamber on 17 September 1996 remained undisputed by the parties. M., who sometimes signs as "exclusive agent" (e.g., annex K 1, B 6), is not a broker (French "courtier") but an immediate agent of the [seller]. However, he sent the fax (annex B 1) without any indication of an agency whatsoever. Moreover, the [seller] did not deny his representative authority.

The fax of the [seller] according to annex B 1 constitutes an offer within the meaning of Art. 14 CISG. It contains a "proposal for concluding a contract" which is "sufficiently definite and indicates the intention of the offeror". Thereby, the [seller] proposes to deliver to the [buyer] twenty truckloads of tomato concentrate until the end of May 1994. Contrary to the assumption of the District Court (Landgericht), the demanded price is also mentioned, namely FF 18 for each "tin in blank" and FF 18.20 for each tin in a shrink-wrapped three-pack with label. In that respect, the concerned parties apparently were assuming quantities customary in trade known to them as regards the content of a tin and the load capacity of the truck; as far as this is concerned, no disagreement arose within the whole litigation. According to this proposal, the customer is free to choose the kind of delivery, namely "blank" or "shrink wrapped with label."

The quality of this fax as a contractual offer is not undermined by the fact that it apparently contains vague phrases: at the beginning it says "we can only (sic) proposed (sic) you", and in respect of the date of delivery, the [seller] wrote "First truck could be delivered". A mere philological interpretation of the fax seems to be doubtful since it was written by someone for whom the English language is a foreign language. Moreover, the word "propose" which he – intentionally or not – used, does not correspond exactly with the choice of words of Art. 14 CISG which describes a contractual offer as a "proposal". The conditional form "could" which was used by the [seller] in connection with the date of the first delivery does not indicate an intention merely to submit a non-binding proposal. The delivery simply "could" take place before the end of the 37th week in case the customer would wish so; if not, at another time. As for the rest, phrases like that are colloquial and common as well in German as in the English-speaking area. Many people say "I would think" if they actually think something, or "I would say" if they are just about to say something which they do not only want to utter under a certain condition but say it right away.

Finally, the adjudicative Chamber of the Court got the certain conviction as to the binding character of the fax (annex B 1) as a contractual offer from the fact that the [seller] afterwards actually did deliver a truckload of tomato concentrate. The [seller], however, puts forward in that regard that this was only a trial shipment. Yet, it cannot be concluded that the truckload constituted a mere sample to prove the [seller]'s capacity without any binding character. It is usual to deliver maybe a tin (at least 4.5 kg net weight) or a couple of tins "as a sample" but not a whole truckload, considering that this is approximately 25 t of tomato concentrate (32 – 34 europallets of 168 tins of 4.5 kg each, comp. annex B 19).

The matter is rather as follows: The [buyer] had modified the declaration of acceptance (according to the fax, annex B 19) on 8 September 1993 by fax (annex B 3) and had enclosed an altered version of the fax (annex B 19) at the and of which it now said: "Subject to the quality of the first truck – buyer’s final decision Yes/No." Hence, it should depend on the sole decision of the [buyer] whether or not the contract for the remaining nineteen truckloads of tomato concentrate should be performed by the [seller]. This was accepted by the [seller] by fax of 9 September 1993 (annex B 4) by indicating readiness to load a first truck. Moreover, this fax contains the reference "Objet/Subject: Novia Contract". This also indicates that the [seller] assumed he had concluded a contract with the [buyer], which can only be seen under these circumstances in the [seller]'s offer of 6 September 1993 which was accepted by the [buyer].

Apparently, the [buyer] was satisfied with the first truckload of tomato concentrate. The [buyer] demanded that [seller] deliver the remaining nineteen truckloads. This can be inferred from the [seller]'s fax of 17 September 1993 (annex K 9) with which the [seller] refers to this demand and declares an inability to deliver due to the bad harvest.

Moreover, the fax of the [seller]'s agent of 23 September 1993 (annex B 6) constitutes a further element for the conviction of the Senate. There it says: "WHATEVER WE SAID OR WRITTEN TO YOU ON SEPT. 6 ABOUT QUANTITIES HAVE BEEN IMMEDIATELY CHANGED FEW DAYS AFTER DUE TO CAS DE FORCE MAJEUR IN FRONT OF THE HEAVY RAINS STIL CONTINUING". All the evidence seems to indicate that the [seller] only wanted to gain profit from the increased prices for tomato concentrate due to the market shortage. Even though the [seller] does not put forward a total loss of the harvest but merely a proportional decline, the [seller] did not even offer the [buyer], who was already a customer of the [seller], a proportion of the harvest at the old price.

The [seller] is liable for non-performance of the contract for supply of goods. A ground for exemption within the meaning of Art. 79 CISG does not exist. The owed class of goods was undoubtedly not exhausted. The [seller] did not even indicate that he was unable to deliver in case the [seller] wanted to deliver.

The [seller]’s liability for damages claimed by the [buyer] follows from Art. 76(1) CISG. The [buyer] had repeatedly fixed a deadline for delivery even though the [buyer] was not obliged to do so considering the [seller]'s final refusal to perform (Art. 72(2) CISG). For the first time in January 1994 (annex B 15 "...we...declare the contract avoided...") and again by the writing of the authorized person of 14 July 1994, the [buyer] declared the contract avoided.

As the [buyer] does not claim to have bought goods in replacement and there is a current price for the goods at issue, the [buyer] is entitled to recover the difference between the price fixed by the contract and the (higher) current price at the time of avoidance according to Art. 76(1) CISG. Thereby, it can be left open which declaration of avoidance of the [buyer] is decisive (the one of January or of July 1994). It is undisputed that the current price for tomato concentrate from southern France was continuously FF 6.10/tin higher than as stipulated with the [seller] up to and including July 1994 (brief of the seller of 26 April 1995, B 1, 48, 49 d.A).

Considering this difference in the current price, the [buyer] assessed the damage claim correctly at at least FF 623,078.40. A truckload contains at least thirty-two europallets (168 tins each). That is FF 623,078.40 for nineteen undelivered loads with 102,144 tins at FF 6.10 each.

An express statement of set-off by the [buyer] was necessary since French law governs a settlement by virtue of law where two persons owe each other money mutually. This follows from Arts. 1289-1291 Code Civil and, moreover, has not been denied by the [seller] anymore according to the corresponding pleadings of the [buyer] within the brief of 3 December 1996 along with annex BfB 4. Finally, the right of set-off or settlement of analogous claims is common to all civilized and trading nations. For that reason, it belongs to the so called "lex mercatoria" or "lex mercatoria generalis" (cf. Klaus Peter Berger, Internationale Wirtschaftsschiedsgerichtsbarkeit, 1992, pp. 373 et seq., 379).

The costs order follows from § 91 ZPO. [*] The decisions on the provisional enforceability are based on §§ 708 No. 10, 711 ZPO.



* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellee of France is referred to as [seller] and the Defendant-Appellant of Germany is referred to as [buyer]. Amounts in the currency of France (French francs) are indicated as [FF].

Translator’s note on other abbreviations: ZPO = Zivilprozessordnung [German Code on Civil Procedure]. Translator’s further note: The parties used some words and phrases in English. These have neither been changed nor corrected by the translator. They are italicized for purpose of this translation.

** Julian Waiblinger, Humboldt University, Berlin, Faculty of Law since 1999; King’s College, London, Diploma in Legal Studies 2001/2002.

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