Case text (English translation)
Queen Mary Case Translation Programme
District Court (Landgericht) Trier
12 October 1995 [7 HO 78/95]Translation [*] by Ruth M. Janal [**]
Translation edited by Camilla Baasch Andersen [***]
FACTS OF THE CASE
The [buyer] repeatedly bought wine from the [seller].
[Seller's position]
The [seller] makes a claim against the [buyer] for payment of the remaining purchase price in the amount of DM [Deutsche Mark] 16,496.69 for a delivery effected on 13 July 1992, which was invoiced for DM 20,639.
[Buyer's position]
The [buyer] objects to the [seller]'s claim for payment because the white and rosé wines delivered by the [seller] on 13 July 1992 were not fit for circulation; a forbidden addition of 9% water to the wine had been found. To the extent that the wine had not yet been sold, it had been seized by the authorities on 3 September 1992 and subsequently destroyed. The [seller] had immediately been informed that the wine was seized.
The [buyer] submits that it suffered damages in the amount DM 16,496.69, resulting from the value of the white and rosé wines seized, the cost of the lock-up of the seized bottles and the attorney costs accrued during the preliminary criminal investigation of the prosecution in Trier [Germany].
[Court's decision]
The District Court dismisses the [seller]'s claim.
REASONING OF THE COURT
I. [CISG as the applicable law]
The contract between the parties is governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 (BGBl. [*] II 1989, 586). German and Italy are both Contracting States to the CISG. The Federal Republic of Germany ratified the CISG on 5 July 1989 (BGBl. 1989, 586), the deed of ratification was deposited with the Secretary-General of the United Nations on 21 December 1989 (cf. Schwenzer, NJW [*] 1990, 602). Effective 1 January 1991 the provisions of the CISG are applicable law (Art. 91(4) CISG). Italy also ratified the CISG, which entered into force in Italy on 1 January 1988 (cf. Herber/Czerwenka, Internationales Kaufrecht, 1991, before Art. 1 n.16). The parties have not excluded the application of the CISG, therefore the CISG applies by virtue of its Art. 1(1)(a).
II. [Seller's claim is dismissed]
The [seller] is not entitled to payment of the remaining purchase price in the amount of DM 16,496.69, because the [buyer] possesses a compensating claim for breach of contract under Arts. 45(1)(b), 74 CISG.
1. [Non-conformity of the goods]
The goods delivered by the [seller] did not conform to the contract as required by Art. 35 CISG as both the white and the rosé wines contained an additive of 9% water and consequently were not fit for circulation under Art. 73 in connection with Art. 15 and attachment VI of (EC [*]) regulation no. 822/87.
Following the expert report commissioned during the criminal investigation, the Court is convinced that the wine did in fact contain 9% added water. The report of the Chemical Examination Office, Trier [Germany] of 10 September 1992 explains in detail that the samples taken were examined by the expert Dr. F. of the Institute for Radio Agronomy at the Nuclear Research Facility, Jülich [Germany]. The comparison of the isotope-relationship 180/160 in the water of the wine with the ground water of the respective wine-growing region makes it possible to calculate the addition of water according to the formula explained in the report. The Court has no reason to doubt the correctness of this method and the reliability of the expert's findings.
The [seller] pleads without success that the wine delivered by [seller] was not to be queried according to the examination results of an Italian laboratory for agricultural food chemistry, which the [seller] submitted. The Court finds no contradiction between these lab results and the findings of the expert Dr. F. In particular, it was neither submitted nor is it evident that the Italian laboratory for agricultural food chemistry examined the wine at all for added water. It further needs to be noted that the wines delivered were also inconspicuous according to the report of the Chemical Examination Office Trier when examined according to the conventional chemical analysis. Therefore, it can be said that there is a certain correspondence between the examinations undertaken in Italy and in Germany.
The Court considers as proven the fact that the water had already been added at the time of delivery of the wine. It is of particular importance for the Court's conviction that the examined samples had already been taken on 14 July 1992, that is one day after the delivery, which undisputedly took place on 13 July 1992. There was hardly any time for manipulation on the part of the [buyer]. Furthermore, an addition of water by the [buyer] would have had to lead to an increase of the amount of wine, which was not found to be true.
2. [Time for examining goods and notice of non-conformity; seller's knowledge]
Contrary to the [seller]'s pleadings, the [buyer] did not lose its right to rely on the lack of conformity following Arts. 38, 39 CISG. In the Court's opinion, there is no obligation on the part of a wine buyer - without specific grounds for suspicion - to have the wine examined for water additions with a method that does not belong to the conventional chemical analysis. In the present case, there was especially no cause for such an examination from the position of the [buyer], because samples of the wine had already been taken the day after the delivery by the wine control authorities. It cannot be queried that the [buyer] notified the [seller] of the non-conformity only upon the announcement of the examination results, which went hand in hand with the securing of the wine by the authorities.
Moreover, the [seller] is not entitled to rely on the provisions of Articles 38 and 39 CISG because the lack of conformity relates to facts of which the [seller] knew or could not have been unaware and which it did not disclose to the buyer [Art. 40 CISG]. The delivery of wine with water additions, which is not fit for circulation, constitutes willful deceit.
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]; the Defendant of
Germany is referred to as [buyer]. Amounts in German currency (Deutsche Mark) are indicated
as [DM].
Translator's note on other abbreviations: BGBl. = Bundesgesetzblatt [German Federal Law
Gazette]; EC = European Community; NJW = Neue Juristische Wochenschrift [German law journal].
** Ruth M. Janal, LL.M (UNSW), a PhD candidate at Albert-Ludwigs-Universität Freiburg, has
been an active participant in the CISG-online website of the University of Freiburg. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.
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