CISG CASE PRESENTATION

Case identification

DATE OF DECISION: 19931118 (18 November 1993)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 6 U 228/92

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

Prepared by Robert Koch for commentary on fundamental breach

"The Düsseldorf Court of Appeals, in a German-Swiss dispute, held that the inability to perform constituted a fundamental breach. A Swiss buyer declared avoided a contract with a German seller to deliver a machine designed to press keys after having been informed by the manufacturer of the ordered machine that the manufacturer had terminated the distribution agreement with the seller and would not carry out delivery of the machine in question unless payments were made directly to him. The buyer then made payments directly to the manufacturer. When the seller sued the buyer for the purchase price, the buyer objected that the seller was not able to deliver the machine and therefore he, the buyer, was entitled to declare the contract avoided. The Düsseldorf Court of Appeals rejected the buyer's arguments and held that mere non- or late delivery does not constitute a fundamental breach under article 25 provided that delivery is objectively possible and the seller was willing to deliver. The Court continued that where delivery was objectively possible, but where it was obvious that the seller for idiosyncratic reasons would not be able to deliver the goods in question (subjective impossibility), the buyer would be entitled to avoid the contract. Since none of the requirements were pertinent the Court denied that any fundamental breach had been committed by seller.

"On appeal, the German Supreme Court affirmed the decision of the Appellate Court insofar as it concerned the buyer's right to avoid the contract. The Court held that art. 72 applies only where future performance is still due. Where the non-performance occurred after the performance had become due, the right to declare the contract avoided would be governed by art. 49. Since in the case at issue the buyer declared the contract only avoided after delivery had been made and payment had become due, the Court thus held that the buyer could not invoke art. 72. As for the buyer's right to declare the contract avoided under art. 49 the Court held that he lost his right according to art. 49(2)(b)." Koch, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 245-246 and n.232.

Editorial remarks

• Unavailable

Citations to case abstracts, texts, and commentaries

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

See above

CITATIONS TO TEXT OF DECISION