Germany 9 December 1992 District Court Frankfurt (Shoes case)
[Cite as: http://cisgw3.law.pace.edu/cases/921209g1.html]
Primary source(s) for case presentation: Unilex abstract; case commentary
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 3/3 O 37/92
CASE NAME:
CASE HISTORY: 2nd instance OLG Frankfurt 18 January 1994 [reversing]
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Shoes
Prepared by Camilla Andersen for commentary on notice issues under
Article 39(1) Nineteen days after delivery was considered a reasonable time for
the giving of notice (by telephone) pursuant to Article 39(1).
Andersen, Pace Review of the Convention on Contracts for the
Intrnational Sale of Goods (1998) 127. "[T]he problem of notice-giving over the telephone has been brought before the German Courts
several times. This form of notice is, in theory, acceptable but
poses a question of evidence. If the buyer cannot substantiate the
call, the Court cannot take it into consideration unless the seller
does not dispute it. Most buyers have been unsuccessful, but in
[this case], the Court found that notice was given satisfactorily
since a shoe seller did not dispute that the call took place and
that the non-conformity was specified." Id. at 107Case abstract
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code
numbers:
39A ; 39A1 [Requirement to notify seller of lack of conformity:
buyer must notify seller within reasonable time; Specification of
nature of non-conformity];
49A [Buyer's right to avoid contract (grounds for avoidance):
fundamental breach of contract]
Descriptors:
"The Court confirmed that the buyer's
notice of avoidance given by telephone was valid."
Anna Kazimierska, The Remedy of Avoidance under the Vienna Convention on the
International Sale of Goods, 1999 Pace online commentary [n.161]
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=112&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (German): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=112&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: Ferrari, International Legal Forum (4/1998) 138-255 [238 n.915 (notice of lack of conformity)]; Schwenzer in Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (Oxford 1998) [Art. 39] 315 n.59; for a survey of close to 100 judicial and arbitral rulings on Article 39(1), go to the 1998 Pace commentary on this subject by Camilla Baasch Andersen; 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)
Classification of issues present
Editorial remarks
Citations to case abstracts, texts, and commentaries
CITATIONS TO ABSTRACTS OF DECISION
Pace Law School Institute of International Commercial Law - Last updated October 20, 2004