Case text (English translation)
Queen Mary Case Translation Programme
District Court of Düsseldorf (Landgericht)
23 June 1994 [31 O 231/93]
Translation [*] by Dr. Peter Feuerstein [**]
Translation edited by Todd J. Fox [***]
Facts
The Plaintiff [buyer] is the manufacturer of large mechanical and hydraulic press engines, used in welding machines and similar heavy equipment. The electrical motors required for the operation of [buyer's] press engines are obtained from other manufacturers.
The second Defendant is the manufacturer of corresponding electrical motors distributed in Turkey through the first Defendant [seller].
The [buyer] obtained several motors with a small capacity manufactured by the second Defendant in the past. After the termination of a license agreement with a British manufacturer, the [buyer] was seeking a business relationship with other manufacturers.
Consequently, the [buyer] has obtained two 75 kw-motors from the production of the second Defendant; the first motor was delivered in January 1992, the second one in May 1993. In the course of the contractual negotiations, the [seller] confirmed to the [buyer] that the motors to be delivered later had a so-called slip value of "8-13% high slip".
[Buyer's position]
The [buyer] asserts that it has concluded a contract for the sale of the motors with the [seller] and the second Defendant. The motors exhibit a "slip value" lower than that contractually agreed upon; this is shown in the results of an expert examination commissioned at University O. The [buyer] gave notification of the lack of conformity of the goods by specifying the lack of conformity within a reasonable time. The deviation in the quality of the motors from the contractually warranted quality could be discovered and notified to the [seller] only after a longer period of time had elapsed.
With its claim, the [buyer] requests:
- Reimbursement of the purchase price of 9,500 DM [Deutsche Mark] and 11,725 DM;
- Reimbursement of [buyer's] expenses for the filing of the claim in the amount of 35,685 DM;
- Compensation for [buyer's] loss of production, which [buyer] calculates in the amount of 253,243.50 DM; and
- A declaratory judgment that [seller] is also liable for future consequential losses.
The [buyer] requests that [seller] and second Defendant be ordered to pay as joint debtors to [buyer] 310,153.50 DM plus 5% interest since the date of filing the claim and, also, that the [seller] be held liable for all losses that arise out of the defective delivery of two Java-motors (i.e., one Java three-phase motor: TE-4675 kw, 1500 RPM, 380/660 V 50 Hz 8.-3, IP-54, IEC 280/IVI, Iso class F motor-no. 280S0888-493 (G-No. 69152); and another Java-motor: FUTE 46 75 kw, 1500 RPM, IP 54).
[Seller's position]
The [seller] and the second Defendant request the dismissal of the [buyer's] claim.
The [seller] and the second Defendant no longer pursue the request for a security of costs to be given by the [buyer]. They plead the Statute of Limitations (prescription period) and argue that the notification of lack of conformity of the goods is untimely.
The second Defendant pleads that it does not have any legal relationship with the [buyer] and has merely sold the motors to the [seller].
Pertaining to further details, reference is made to the briefs exchanged by the parties and to the attachments thereto.
Grounds for the decision
The [buyer's] claim is admissible, but it is not established.
I. There are no longer any objections to the admissibility of the [buyer's] claim. The [seller] and the second Defendant no longer adhere to their request for a security of costs to be given by the [buyer] (ZPO [*] § 110). The District Court of Düsseldorf has jurisdiction in the subject matter of the claim against the [seller] under §§ 29 and 17 ZPO; and also against the second Defendant, according to BGH [*] 24 March 1994 (docket-no.: X ARZ 177/94), under ZPO § 36, No. 3.
II. The [buyer's] claim is unsuccessful in this matter.
The [buyer] claims damages against both the [seller] and the second Defendant for breach of warranty after the sale of two electrical motors. The [seller] is not liable for breach of warranty, since the [seller] is not the contracting partner of the [buyer].
The second Defendant is not liable, since the [buyer] gave untimely notification of the alleged lack of conformity of the goods.
1. The [buyer] incorrectly assumes that it concluded the disputed sales contracts with the [seller] and the second Defendant.
The [buyer] itself states in its claim that the second Defendant is the manufacturer of the goods and markets its products through the [seller]. The confirmation of the order for the goods, with the description of the quality as "high slip 8-13%", was made on 11 May 1993 by the [seller]. The [seller] invoiced the motors to the [buyer]; the second Defendant sold the motors to the [seller].
Circumstances from which a different valuation could result were neither shown nor put into evidence by the [buyer].
2. The [buyer's] plausible claims against the [seller] for breach of warranty have to be judged in accordance with the provisions of the CISG.
The [buyer's] claim for damages under Art. 74 CISG for a breach of contract by [seller] (Arts. 45 and 36 CISG) has not been established. The [buyer] had a potentially plausible claim, as the last delivered motor (or both motors) does not show the contractually provided slip quality; however, the [buyer] has lost the right to that claim, according to Art. 39(1) CISG, since the [buyer] did not discover the alleged lack of conformity of the goods within the time period provided in Art. 38(1) CISG and, also, did not give notice of the lack of conformity of the goods within the time period provided in Art. 39(1) CISG.
According to Art. 38 CISG, the buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. What that means is a very short and still reasonable period for the buyer.
A consideration in favor of the [buyer] is the fact that the relevant examinations require the installation of the motors in the press engines that the motors have to propel; this certainly can not be accomplished within a few working days, as Art. 38(1) CISG is generally interpreted to mean (cf. Piltz, UN-Kaufrecht, in Handbuch des Kaufvertragsrechts in den EG-Staaten, Annotation 128). The [buyer], without stating the exact dates, has instead claimed entitlement to an examination period of approximately four months. This time span at least can no longer be considered as short a period, "as is practicable in the circumstances."
Irrespective of that, the [buyer] has given untimely notice of the alleged lack of conformity of the goods.
The [buyer] admits that it undertook several examinations of the goods before discovering the source of the defect. In any event, rather than immediately thereafter notifying the [seller] of the alleged lack of conformity of the motor, the [buyer] sent the motor to be examined at University O. According to Art. 39(1) CISG, the [buyer] was obliged to notify the [seller] of the lack of conformity of the goods within a reasonable time after the [buyer] had discovered it. This time started, at the latest, with the termination of the [buyer's] own examinations.
Moreover, the notification of the lack of conformity of the goods regarding the first motor delivered in January 1992 is untimely. It was undisputed that the [buyer] did not notify the [seller] of that alleged nonconformity until the [buyer] sent notification of the lack of conformity of the second motor. The second Defendant would be precluded from relying on the untimely nature of the notice of lack of conformity only if the [second Defendant] knew or could not have been unaware of the lack of conformity of the goods (cf. Piltz, op.cit., Annotation 130). The [buyer] has not contended this.
Since the [buyer's] claim must be dismissed, the [buyer] has to bear the costs according to § 91(1) ZPO [*].
The decision pertaining to the provisional enforceability is established under §§ 709, 108 ZPO.
The contested amount in the [buyer's] application for a declaratory judgment is set at 10,000 DM.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the first Defendant-Respondent of Germany is referred
to as [seller]; the Appellant-Plaintiff of Turkey is referred to as [buyer]. Monetary amounts
in German currency (Deutsche Mark) are indicated as [DM].
Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil
Code]; BGH = Bundesgrerichtshof [Federal German Supreme Court]; ZPO =
Zivilprozessordnung [German Civil Procedure Code].
** Dr. Peter Feuerstein is an International Legal Consultant. He conducted his post graduate research at Cambridge University, England, where he studied at Clare College in preparation of his Doctoral Dissertation. He received his Dr. jur. from Philipps-University of Marburg, Hessia, Germany, in 1977. The second-iteration redaction of this translation was by Dr. John Felemegas.
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