CISG CASE PRESENTATION

Germany 21 October 1994 Lower Court Riedlingen (Ham case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/941021g1.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: 19941021 (21 October 1994)

JURISDICTION: Germany

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 2 C 395/93

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

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Ham

Case abstract

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

"[T]he Court rejected a notice given twenty days after delivery of ham despite the obstructions facing the buyer due to the Christmas holiday closures in the period in question. The Court stated that a period of three days for examination and discovery and a period of three days for notification would have been appropriate." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 117.

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39 ; 78

Classification of issues using UNCITRAL classification code numbers:

38A [Buyer's obligation to examine goods];

39A2 [Requirement to notify seller of lack of conformity: within reasonable time];

78B [Interest on delay in receiving price or any other sum in arrears: rate of interest]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness ; 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=116&step=Abstract>

Italian: Diritto del Commercio Internazionale (1996) 631-632 No. 104

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/358.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=116&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [234 n.877, 238 n.912 (examination of goods/notice of lack of conformity)]; Bonell/Liguori, Uniform Law Review (1996 II) 360 n.5 [cited as 21 January 1994]; 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 essay on this subject by Camilla Baasch Andersen; Liu Chengwei, Recovery of interest (November 2003) n.189; 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); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 79; 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. 38 para. 16 Art. 39 para. 16; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 157

Finnish: Huber/Sundström, Defensor Legis (1997) 758 n.56

Italian: Liguori, Foro italiano (1996 IV) 167 n.102, 180 [cited as 21 January 1994]

Case text (English translation)

Queen Mary Case Translation Programme

FACTS AND POSITIONS OF THE PARTIES

The parties are in dispute regarding the payment of an invoice for deliveries of ham in December 1992.

It is undisputed that the [seller] delivered to the [buyer] the following:

1. 105.32 kg of ham without bones "MEC" for DM [Deutsche Mark] 14.50 per kilo, totaling DM 1,536.77
2. 220.70 kg of Parma ham S/O for DM 23.55 per kilo, totaling DM 5,219.55

   Total debt: DM 6,756.32

The [buyer] only paid in part, so that the amount of DM 1,602.74 is still outstanding.

The [seller] contends that the goods delivered to the [buyer] were in conformity with the contract and that the contract with the [buyer] was never avoided. Mr. M, appearing as the agent of the [seller]'s general agent at the time of the conclusion of the contract, did not agree to the avoidance of the contract. He would also not have been entitled to do so. The [buyer] even advised the managing director of the commercial agent, Mr. S, that the [buyer] would pay the purchase price. Insofar as the [buyer] contends lack of conformity of the delivered ham, [the buyer] did not notify the [seller] in due time specifying the nature of the lack of conformity.

The [seller] pleads that the [buyer] be ordered to pay DM 1,602.74 plus 15% interest since 31 January 1993.

The [buyer] pleads that the [buyer]'s claim be dismissed.

The [buyer] contends that all of the ham delivered was too fresh. On 11 January 1993, the [buyer] phoned Mr. M, the agent of the general agent of the [seller], to inform it of this matter. Thereupon, [Mr. M.] agreed that the [buyer] should not pay for the goods. It is the [buyer]'s position that the matter was therewith finally settled.

The Court has heard evidence by testimony of witnesses M and S through the Lower Court (Amtwsgericht) in Munich. Reference is made to these protocols, page 30 and page 52 of the trial record.

GROUNDS FOR THE DECISION

The [seller]'s claim is founded in its entirety.

The [buyer] owes the full purchase price, in accordance with Arts. 53, 62 CISG.

The [buyer]'s objection that the ham was defective is cut off by Art. 39 CISG. The [buyer] did not notify [the seller] about the lack of conformity within a reasonable time after the [buyer] ought to have discovered it. The notice of lack of conformity was not given to the [seller]'s general agent until twenty days after the receipt of the goods. Even though a complete examination within a short time period was complicated by the Christmas Holidays, it was feasible for the [buyer] to carry out spot checks of the goods. The [buyer] could have done this within a time limit of not more than three days. At the latest, within another three days [buyer] could have notified the [seller] about the non-conformity. This is because - following the [buyer]'s submissions - the ham started to develop mould at the latest two to three hours after unpacking.

Thus, it needs not be decided whether the ham was actually defective, whether the notice of the lack of conformity was specific enough and whether witness M was entitled to accept the notification of non-conformity.

The claim for interest is based on Art. 78 CISG in connection with Art. 1284 I Codice Civile (Italian Civil Code). The higher rate of interest requested by the [seller] has been disputed by the [buyer], and the [seller] did not render any proof of the higher rate of interest.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Italy is referred to as [seller] and the Defendant of Germany is referred to as [buyer]. Also, [DM] indicates monetary amounts in German currency (Deutsche Mark).

** Peter Feuerstein is an International Legal Consultant. He conducted his post graduate studies at Cambridge University, England, where he researched 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 the Feuerstein translation was by Dr. John Felemegas of Australia.

*** Ruth M. Janal, LL.M. (UNSW) is a PhD candidate at Albert-Ludwig-Universität Freiburg.