CISG CASE PRESENTATION

Even in consideration of the [buyer]'s remark regarding the correspondence of March and the fact that the [buyer] had reminded the [seller] "with the fixing of a final deadline to deliver promptly" again by telephone in March, this interpretation is not to be altered. A specific fixing of a deadline cannot be inferred from the correspondence put forward by the [buyer], regardless of whether these writings can be attributed to the [buyer] at all. The alleged "fixing of a deadline to deliver promptly" by telephone, however, does not suffice as it merely constitutes an urgent request to perform but does not contain a sufficiently specific time limit (cf. von Caemmerer/Schlechtriem/Huber, loc. cit., Art. 47 CISG, No. 6, with further citations; Herber/Czerwenka, Internationales Kaufrecht, 1st edition, Art. 47 CISG, No. 3).

III. Not even the [buyer]'s alternatively announced set-off with allegedly assigned claims from company M.B. GmbH & Co. KG under an existing agency contract between the assignor and the [seller] does succeed in the end. Since the international jurisdiction of the German courts is in so far lacking, the adjudicative senate cannot rule in respect of the set-off and the counterclaims arising from the above-mentioned legal relationship which are inconnex with the asserted claim.

Since a decision on the set-off claims can establish a res judicata according to § 322(2) ZPO [*], the German courts can only rule in respect of the counterclaims as far as they have the international jurisdiction (cf. BGH NJW 1993, 2753 with further citations; Zöller/Geimer, loc. cit., IZPR, No. 89; Geimer, IPRax 1986, 208, 211 f.). The international jurisdiction of the German courts in respect of the asserted counterclaims could only be established if the German courts had also the international jurisdiction over the assertion of these claims by way of taking legal proceedings independently (cf. BGH NJW 1993, 2753 with further citations; Zöller/ Geimer, ZPO, loc. cit., IZPR, No. 89; MünchKomm-BGB/Martiny, loc. cit., Art. 32 EGBGB, No. 40 f.; Geimer, IPRax 1986, 208, 211). This, however, is not the case.

The international jurisdiction in this case keeps to the regulations of the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (EuGVÜ) which entered into force between Germany and Italy on 1 February 1973 (comp. BGBl. 1973, part II, p.60). However, the jurisdiction of German courts regarding the claims under the agency contract cannot be inferred from that Convention.

     1. According to Art. 2(1) EuGVÜ, Italian Courts would have the jurisdiction as the [seller] has the place of business in Italy.

     2. Neither does Art. 5 No. 1 EuGVÜ provide a differing jurisdiction of the German Courts.

[...]

Accordingly, the [seller]'s objection concerning the jurisdiction put forward for the first time at second instance may be considered.

IV. Finally, the defense of the [buyer] has to remain unsuccessful in so far as the [buyer], for the first time at second instance, claims a right of retention regarding the claim for performance under the contract of sale in respect of the delivery of the remaining 243 pairs of shoes. As a result, the [buyer] is not entitled to such a right of retention.

     1. In particular, the [buyer] cannot plead the rights of retention laid down in Art. 58(1) and Art. 71(1) CISG. On the basis of these rights of retention, merely the performance can be retained which is mutual with the performance owed by the creditor. However, they do not entitle the debtor -- as intended here by the [buyer] -- to retain a different performance than the one which is mutual with the performance to be demanded of the debtor. A differing judgment is not necessary in so far as both the obligation to deliver owed by the [seller] and the [buyer]'s obligation to pay the purchase price derive from the same contract of sale. Since the [seller] legitimately provided partial deliveries which -- as follows from Art. 51(1) and Arts. 46, 50 CISG -- the [buyer] was not entitled to repudiate, the contract of sale as a whole was split up; thus, the purchase money claim for the delivered goods put forward by way of claim is mutual only with respect to the already carried out obligation to deliver for which the [buyer] has not yet provided counter-performance.

     2. Finally, the [buyer] cannot even claim a right of retention stemming from another legal reason. It can be left open whether or not it is possible to fall back on a general right of retention besides the rights of retention governed by the UN Sales Convention and which legal system this could be inferred from, should the occasion arise. The assertion of such a general right of retention can be ruled out anyway since the [buyer]'s claim for delivery of the 243 pairs of shoes is not due at present. Certainly, the continued existence of the contract of sale can be assumed, even though the [buyer] explained that the [buyer] wanted to cancel the contract. Yet, since the [buyer]'s declaration of avoidance of the contract was -- as explained above -- not justified and the [seller] neither agreed upon the declaration of avoidance nor declared the termination of contract on the [seller]'s behalf, the contract of sale continues to exist automatically. Though, the conduct of the buyer resulted in the obligation to perform in advance in respect of the purchase price. The Plaintiff, as the seller of the goods must have the possibility to demand payment of the purchase price from the [buyer] without carrying out the delivery beforehand, even if the purchase price falls due under the contract or according to the law (Art. 58(1) CISG) only after the seller has carried out the delivery. This follows, if not only from the principal of good faith (Art. 7(1) CISG), at any rate from an extended interpretation of Art. 80 CISG. In that respect, it has to be considered that the defendant as the buyer caused the temporary non-performance of the [seller]'s obligation to deliver in so far as the [buyer] unjustifiably refused performance of the contract of sale (cf. von Caemmerer/ Schlechtriem/ Huber, loc. cit., Art. 49 CISG, No. 70). After the [buyer]'s declaration of avoidance of the contract, it could not be expected of the [seller] to carry out the delivery in that situation, even though the seller had to expect definitely that the [buyer] would refuse the taking delivery and especially would not pay the purchase price on account of the unjustified declaration of avoidance of the contract. Therefore, the seller is entitled to postpone the performance of the obligation to deliver in the meanwhile until the [buyer] has paid the due purchase price before. Due to this obligation to perform in advance, the [buyer] cannot retain further obligations to perform in respect of the [buyer]'s claim for performance as regards the delivery of the remaining 243 pairs of shoes which is not due at present.

V. According to Art. 78 CISG and Art. 1282, 1284(1) Codice civile, the [seller] is entitled to the interest claim amounting to 10% awarded in the operative part of the judgment.

According to Art. 78 CISG, the interest claim generally exists where a party fails to pay the due purchase-money claim. Neither a reminder nor fault within the meaning of the German law is required therefore (cf. von Caemmerer/Schlechtriem/Eberstein, loc. cit., Art. 78 CISG, No. 9; Herber/Czerwenka, loc. cit., Art. 78 CISG, No. 3). On the contrary, interest must be paid on the purchase price from the maturity date onward, whereas the maturity depends on the agreement of the parties. Hence, the payment of the purchase price was due 60 days after the relevant submissions of account. Consequently, the [buyer] must pay the interest according to Art. 78 CISG from that point on.

The UN Sales Convention, however, does not regulate the amount of the interest rate. It depends on the relevant national law which is to be determined according to the general conflict-of-laws rules (cf. OLG Düsseldorf (Senat) NJW RR 1994, 506, 507; OLG Frankfurt/Main NJW 1994, 1013, 1014; von Caemmerer/ Schlechtriem/Eberstein/Bacher, loc. Cit., Art. 78 CISG, No. 21 with further citations; Herber/Czerwenka, loc. cit., Art. 78 CISG, No. 6). As laid down above, Italian law is applicable to the contract of sale at hand according to Art. 28(1) s.1 EGBGB and Art. 28(2) EGBGB since the [seller] provided the performance which is characteristic for the contract and has the place of business in Italy. Under Italian law, the statutory interest rate at present amounts to 10% according to Art. 1282, 1284 Codice civile (cf. also OLG Frankfurt/Main DB 1994, 472).

The [seller], however, is not entitled to a further interest claim in form of the damage claim according to Art. 74 CISG. Apart from all the other requirements, such a damage claim is to be ruled out as the [seller] did not put forward and prove to utilize a bank credit amounting to the claim for which the [seller] demands interest exceeding the statutory interest rate. The certificate from Bank N.A. which was submitted by the [seller] at first instance, merely gives information on the demanded credit rates. However, the certificate does not contain any information whatsoever as to whether the [buyer] actually makes use of a credit exceeding the principal claim.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant of Italy is referred to as [seller]; the Defendant-Appellee of Germany is referred to as [buyer]. Amounts in Italian currency (Lira) are indicated as [ItŁ].

Translator's note on other abbreviations: BGBl. = Bundesgesetzblatt [Federal Law Gazette]; BGH = Bundesgerichtshof [Federal Supreme Court]; Codice civile = Italian Civil Code; EGBGB = [Introductory Act to the BGB (German Civil Code)]; EuGVÜ = Gerichtsstands- und Vollstreckungsübereinkommen in Zivil- und Handelssachen [European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters]; NJW = Neue Juristische Wochenschrift [well known German law journal]; ZPO = Zivilprozessordnung [Code of Civil Procedure].

** Julian Waiblinger, Humboldt University, Berlin, Faculty of Law since 1999; King's College, London, Diploma in Legal Studies 2001-2002.