germany 29 january 1996 lower court augsburg

CISG CASE PRESENTATION

Germany 29 January 1996 Lower Court Augsburg (Shoe case) [translation available]

[Cite as: http://cisgw3.law.pace.edu/cases/960129g1.html]

Primary source(s) for case presentation: Case text

Case Table of Contents

Case identification Case abstract Classification of issues present Editorial remarks Citations to case abstracts, texts, and commentaries Case text (English translation) Guide to links contained in case presentations

Case identification

DATE OF DECISION: 19960129 (29 January 1996)

JURISDICTION: Germany

TRIBUNAL: AG Augsburg [AG = Amtsgericht = Petty District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 11 C 4004/95

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Switzerland (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Shoes

Case abstract

Prepared by Camilla Andersen for commentary on notice issues under Article 39(1)

"The Court stated that the maximum period of time considered reasonable for the pupose of Article 39(1) was one month after discovery, and that certain factors -- such as the seasonal nature of the goods, which in the present case concerned fashion wear for a particular season -- would necessitate that the buyer give notice even sooner." ("Das Recht sich auf Vertragswidrigkeit -- wie her Verspätung der Lieferung -- zu berufen, erlischt, wenn die Vertragswidrigkeit nich innerhalb einer angemessenen Frist angezeigt wird. Insbesondere ist eine rasche Rüge bei Saisonwaren wie den vorliegenden geboten. Die maximale Frist beträgt einen Monat ab Kenntniserlangung von dem Mangel.") Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 122. "The latter part of the statement almost resembles an obiter dictum since the buyer waited 18 months to notify the seller." Id. at n.211.

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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 35 ; 39(1) ; 59 ; 74 ; 78

Classification of issues using UNCITRAL classification code numbers:

35D [Conformity of goods to contract (court regarded late delivery as a lack of conformity)];

39A11 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time (notice of late delivery one mouth after buyer discovered breach of contract held untimely)];

59B [Payment due: no need for request or other formality];

74A [Damages (general rules for measuring): includes legal costs];

78A ; 78B [Interest on delay in receiving price or any other sum in arrears: accrual of; Rate of interest (national law applied)]

Descriptors: Conformity of goods ; Lack of conformity notice, timeliness ; Price ; Damages ; Legal costs ; Interest


Editorial remarks

Unavailable


Citations to case abstracts, texts, and commentaries

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=228&step=Abstract>

Italian: [1998] Diritto del Commercio Internazionale 1101 No. 204

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/172.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=228&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [238 n.911 (notice of lack of conformity), 253 n.1079 (interest issues)]; For a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace essay on this subject by Camilla Baasch Andersen; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.378; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 17

German: Piltz, Neue Juristische Wochenschrift (NJW) 1996, 2768 [2771 n.65]


Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Local Court (Amtsgericht) Augsburg

29 January1996 [11 C 4004/95]

Translation [*] by Stella Heyken [**]

REASONS FOR THE DECISION

The claim of the Plaintiff [Seller] is accepted and partial successful.

I. [Seller], of Switzerland, presents a claim against Defendant [Buyer], of Germany, for interest due to delay in payment pursuant to Arts. 78, 59, 74 CISG.

1. According to these articles, a party can claim interest, if the other party fails to pay the price or any other sum that is in arrears. Moreover, [Buyer]'s obligation to pay within 60 days, which is imprinted on the account, is part of the contract. According

to Art. 58 CISG, the buyer has to pay the contract price, when the seller places the goods at the buyer's disposal. Therefore, the maturity occurs 60 days after the billing date.

If the buyer does not pay the contract price on time, according to Art. 59 CISG, the buyer is in delay without the need for an admonition. The statement by [Buyer], that it never got an admonition, is therefore not relevant.

For the partial deliveries of 28 September 1994, 27 October 1994, 7 November 1994 and 04 December 1994 the delay occurs on the maturity of the invoice, since [Buyer] did not pay the price of these invoices.

Art. 78 CISG gives no hint as to the rate of interest. According to the prevailing opinion, the rate of interest is determined by the otherwise applicable national law. The parties did not specify the applicable law in their contract (Art. 27(1) EGBGB) [*], therefore the law of the place of the seller is applicable, according to Art. 28(2) EGBGB.

In Switzerland, the legal rate of interest is five per cent and not as [Seller] asserted ten per cent. To the extent [Seller] asserted interest of more than five per cent, [Seller] has not provided proof for a higher rate of interest. (...)

2. According to the above-mentioned articles of the CISG, [Buyer] has to compensate to [Seller] the attorneys' fees as damages caused by delay in the amount of Deutsche Mark [DM] 845,00.

[Buyer] alleged that [Seller]'s delivery was late, with the consequence that the [Buyer]'s seasonal business was hindered. However, [Buyer] could not claim damages for that. According to Art. 39 CISG, a buyer loses the right to rely on a lack of conformity, if the buyer does not give notice of the lack of conformity within a reasonable time. For seasonal goods, a rapid reproof is very important. The maximum period of time is one month after knowledge of the lack of conformity. [Buyer] has not provided notice in that time, it provided notice one and one half years later; therefore [Buyer]'s claim on lack of conformity with the contract is not relevant.

[Seller] has a claim against [Buyer] in the amount of DM 1,032. 96. The judgment by default is maintained in this amount, when, as here [Seller] claims interest for delay in payment.

II. In a claim for interest, the legal rate of interest, according to § 288 BGB [*], is determined by law.

III. The decision on costs follows from §§ 92(1), 344 ZPO [*]. The decision on the provisional enforceability of the judgment follows from §§ 708(no. 11), 711(1), 713 ZPO.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Switzerland is referred to as [Seller]; Defendant of Germany is referred to as [Buyer]. Amounts in the former German currency (Deutsche Mark) are indicated as [DM].

Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Code Civil Law]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuch [German Code on Private International Law]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Stella Heyken is a law student of the University of Osnabrück, Germany.


germany 29 january 1996 lower court augsburg

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