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CISG CASE PRESENTATION
Switzerland 5 November 2002 Commercial Court of the Canton of Aargau (Inflatable triumphal arch case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/021105s1.html]
Primary source(s) of information for case presentation: Case text
Case Table of Contents
Case identification
DATE OF DECISION: 20021105 (5 November 2002)
JURISDICTION: Switzerland
TRIBUNAL: HG Aargau [HG = Handelsgericht = Commercial Court]
JUDGE(S): Mitwirkend Oberrichter A. Bühler (Präsident); Etrsatzrichter B. Weber, Handeslrichter O. Münch, H. Nauer, H.-P. Oser; Gerichtsschreiver D. Rüetschi
CASE NUMBER/DOCKET NUMBER: OR.2001.00029
CASE NAME: X. GmbH v. Y. e.V.
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Switzerland (plaintiff)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Inflatable triumphal arch
UNCITRAL case abstract
SWITZERLAND: Commercial Court of the Canton of Aargau (Inflatable triumphal arch case) 5 November 2002 [OR.2001.00029]
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/87],
CLOUT abstract no. 882
Reproduced with permission of UNCITRAL
Abstract prepared by Thomas M. Mayer
The defendant, an association incorporated in Germany, which held the marketing
rights concerning a German motor racing event, ordered three inflatable triumphal
arches bearing a specified advertising slogan from the plaintiff, a company having
its headquarters in the canton of Aargau, Switzerland.
On the first day of the races one of the three arches collapsed. The race management
thus insisted that all the arches be taken down. On the same day the defendant gave
notice of the defects to the plaintiff, which responded two days later. Some two
weeks later the defendant declared the contract avoided.
In the present case, the court before which the matter was brought was competent in
accordance with the rules laid down in the Brussels-Lugano Convention. It awarded
the plaintiff the full agreed sale price, together with interest on arrears as from the
due date of payment. The defendant had correctly invoked lack of conformity within
the meaning of article 35 CISG, since the arches did not meet the agreed purpose,
namely their use as an advertising medium near to and above the motor racing
tracks. However, the court concluded that the defendant was nevertheless not
entitled to terminate the contract since, for that purpose, article 49(1) CISG required
a fundamental breach of contract. No such fundamental breach was, however,
established since it would have been possible to remedy the defect, which would
have permitted the use of the arches at subsequent races.
Although the defendant had submitted set-off claims for damages, it had not
detailed them and reserved the right to assert them in subsequent proceedings. In
accordance with article 78 CISG, the sale price due yielded interest on arrears as
from the date established on the basis of article 58 CISG. The rate of interest was to
be determined in accordance with national law.
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APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles 3 ; 7 ; 25 ; 35 ; 36 ; 45 ;48 ; 49 ; 57 ; 58 ; 59 ; 78 [Also cited: Articles 46 ; 50 ; 74 ; 75 ; 76 ; 77 ] [Also relevant: Article 53 ]
Classification of issues using UNCITRAL classification code
numbers:
3A [Goods to be manufactured];
25A [Effect of a fundamental breach];
35A ; 35B [Conformity of the goods: quality, quantity and description required by contract; Requirments implied by law];
36A [Time for assessing conformity of goods: conformity determined as of time when risk passes to buyer];
45A [Summary of buyer's remedies for breach by seller];
48A [Cure by seller after date for delivery: seller's right to remedy any failure to perform];
49A [Buyer's right to avoid contract: grounds for avoidance];
57A [Place for payment: in absence of agreement, payment at seller's place of business];
58A [Time for payment: buyer to pay when goods placed at buyer's disposition];
59A ; 59B [Payment due at time fixed or determinable by contract or Convention; No need for request by seller or other formality];
78B [Rate of interest]
Descriptors: Conformity of goods; Fundamental breach ; Avoidance ; Cure ; Payment, place of ; Price ; Interest
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CITATIONS TO OTHER ABSTRACTS OF DECISION
German: [1/2003] Swiss Review of International and European Law (SRIEL) 103
CITATIONS TO TEXT OF DECISION
Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/715.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: Liu Chengwei, Recovery of interest (November 2003) nn.55, 233; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 178; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 49 para. 8; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at pp. 268, 363; Peter Huber, CISG: The Structure of Remedies, 71 RabelsZ (2007) n.43
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Case text (English translation) [second draft]
Queen Mary Case Translation Programme
Commercial Court (Handelsgericht) Aargau
5 November 2002 [OR.2001.00029]
Translation [*] Martin F. Koehler [**]
[...]
A. [The background facts]
1. The Plaintiff [seller] is a limited liability cooperation based in the Canton of Aargau. The object of its
business operation is all types advertisement, especially during sports events by using fixed balloons.
The Defendant [buyer] is an incorporated association based in Wiesbaden, Germany, and the possessor of the
right of commercialization of the German Touring Car Masters (DTM).
2. In June 1999, P. contacted the [seller] as the agent for the [buyer], asking if the [seller] would be in the
position to manufacture inflatable triumphal arches, to be used as advertising media during car racing events.
On 9 June 1999, the [seller] presented a cost estimate. He offered the manufacturing and labeling of one
triumphal arch, the appropriate supercharger as well as the so-called "service expenditure" for the positioning,
maintenance and taking down of one triumphal arch.
On 6 April 2000, the [buyer] confirmed the order for the manufacturing of three triumphal arches for the total
price of Sf [Swiss francs] 127,157.50. This order confirmation included only the manufacturing and the
labeling of the three arches as well as the appropriate supercharger. In addition, the [buyer] demanded that a
test be carried out on the site of the Hockenheimring, at which "inter alia, the best possible security of the
advertising medium is developed and shown". This test was realized on 2 May 2000. On Friday, 26 May 2000,
the [seller] delivered the three triumphal arches to the Hockenheimring site, where the [seller] set up the arches
and briefed the employees of one of the companies called in by the [buyer] to position the arches and handle
the supercharger. One triumphal arch was set up above the access road of the pit stop area; the other arches
were set up on the green space next to the racing circuit. On Saturday, 27 May 2000, one of the arches next
to the circuit collapsed. As a result, the race management center insisted that all arches be removed. In a fax
of that same day, the [buyer] complained of the defects that had occurred. The [buyer] also responded by
letter dated 29 May 2000, whereupon on 14 June 2000, by authorized proxy, the [seller] declared the contract
suspended.
B. [The legal proceedings]
1. In a complaint dated 3 May 2001 the [seller] claimed:
"1. The [buyer] should be obliged to pay to the [seller] the amount of Sf 127,157.50 with 5% interest
as of 20 June 2000.
2. The follow-up and compensation cost should be at expense of the [buyer]."
2. In his answer to the [seller] dated 19 December 2001, the [buyer] applied for dismissal of the [seller]'s
complaint.
[...]
CONSIDERATIONS
1. a) As the [buyer] is based in Wiesbaden, Germany, [and the seller in Switzerland] the facts of the case are
international. The competence of the court complies with the Lugano Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters of 16 September 1988, which was ratified by both
Switzerland and Germany. The place of fulfillment is to be determined depending on the substantive law that
is applicable according to the rules of conflict of law (EuGHE 1976, 1473 "Tessili" = NJW 1977, 491), even
if the UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods; CISG) is
applicable. This is true in the present case, as set forth below. As the parties did not stipulate a place of
delivery or payment of the purchase price, according to Art. 57(1)(a) CISG the purchase price needs to be paid
at the place of the seller's establishment. The place of fulfillment in terms of Art. 5 No. 1 of the Lugano
Convention is the registered office of the [seller]. This means that the Commercial Court of the Canton of
Aargau has jurisdiction.
b) The competence of the court results from § 404(1)(1) in conjunction with § 405 ZPO [*].
2. Switzerland and Germany are both Contracting States of the United Nations Convention on Contracts for
the International Sale of Goods of 11 April 1980 (CISG). The provisions of the CISG apply to contracts for
the sale of goods between parties whose places of business are in different Contracting States (Art. 1(1)(a)
CISG). Contracts for the supply of goods to be manufactured or produced are on a par with sales contracts.
(Art. 3(1) CISG). Such a contract for the supply of goods has been concluded by the parties, as the
manufacture of three inflatable triumphal arches is the primary subject of the contract. The contractual
relationship is therefore subject to the CISG.
3. The [buyer] asserts the defectiveness of the work delivery. The [seller] denies this; [seller] alleges perfect
performance of the contract.
a) According to Art. 35(1) CISG, the seller must deliver goods of the quantity, quality and description
required by the contract. Unless the parties have agreed otherwise, the goods provided for a certain
purpose are only considered in conformity to the contract if they are suitable for the certain purpose of
which the seller has been made aware at the conclusion of the contract explicitly or otherwise, except
where the circumstances show that the buyer did not rely, or that it was unreasonable for the buyer to rely,
on the seller's skill and judgment (Art. 35(2)(b) CISG).
b) In the case under consideration, it is clear that the purpose of the use of the goods to be manufactured
or produced was known to the [seller]; namely, use as advertising media next to and across the racing track.
As safety is of vital importance in this enterprise, a test was carried out at the site of the Hockenheimring on
2 May 2002. As a result, it became evident that that additional safety measures needed to be taken; it was
generally agreed to install a safety wire in order to avoid a breakdown of the arch that was to be set up across
the racing track in case of a failure of the supercharger, as well as to raise the so-called site stamps in order
to prevent sagging. The question of "statics", respectively, "static calculation", remained open, in fact -- as far
as the cost absorption as well as the realization by a German specialist on-site or a Swiss specialist was
concerned. Moreover, it is not contested that the [seller] requested an offer for the optimal fixation of the
arches to the ground at the S. consortium in Herisau of 5 April 2000, which the [seller] submitted to the
[buyer] after the test of 2 May 2000. The additional costs according to that offer totaled Sf 23,798.80 per arch.
The [buyer] rejected this additional charge of more than the half of what was agreed to as the price for a single
arch.
Yet, all these circumstances do not have any impact on the purpose of use of the arches. In spite of the
question that remains open in connection with a static calculation, the subject matter of the contract remains
the supply of three triumph arches, which were supposed to be used as advertising medium next to and across
the racing track. The rejection by the [buyer] of additional costs for an optimal fix does not entail either that
after the conclusion of the contract the [buyer] did not trust or must not have trusted the [seller]'s experience
as a specialist for such advertising media. In fact, the [buyer] might still have acted on the assumption that the
[seller] would carry the analytic expertise necessary for the manufacturing and supply of arches suitable for
the agreed purpose and that the [seller] would deliver arches suitable for the target use. Otherwise, the [seller]
would have had to point out his missing expertise and to explicitly express his reservation concerning the
applicability of the arches for the agreed purpose. It is neither asserted nor proved that the [seller] did so.
c) The D2-arch, delivered by the [seller] and set up on 26 May 2002 on a lawn next to the Hockenheimring
collapsed on the morning of 27 May 2002 at the connection of the inflatable arch and the so-called "stamp".
This occurred after the race (training and preliminary heat) had started. The arch lost air and drifted with the
wind towards the racing track. The Arcor-arch, which was mounted above the access road of the pit started
to vibrate because of the racing cars going through with a reduced speed of 60 km/h. As a result, the concrete
elements used for the fixation of the Arcor-arch began to falter. For this reason, the race organizers demanded
that all three arches be removed. Thus both a quality or manufacturing flaw as well as an insufficient stability
of the arch set up above the pit access occurred. The suitability of all three arches for the agreed target use
- next to and above the racing track - was not given at that point of time. Consequently, it was a case of non-compliance with the contract (defects), for which the [seller] was liable according to Art. 35(2)(b) in
connection with Art. 36(1) CISG.
4. a) In case of a seller's non-compliance with a contract or CISG obligation, in principal the following five
legal remedies (defects rights) are at the buyer's disposal:
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Right to performance (Art. 46(1) CISG); |
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Right to cure (Art. 48 CISG); |
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Right to avoid the contract because of a fundamental breach of contract (Art. 49(1)(a) CISG); |
| - |
Right of price reduction (Art. 50 sentence 1 CISG); |
| - |
Right to damages (Art. 45(1)(b) in connection with Arts. 74-77 CISG). |
In the present case, the [buyer] declared the contract's avoidance, due to the existence of a
fundamental breach of contract, analogously already in his notification of defects dated 27 May 2000
and unmistakably, in the letter of his legal representative dated 14 June 2000. As, according to Art.
48(1) CISG, the seller "subject to Art. 49" may remedy any failure even after the date for delivery, the
question arises concerning the relationship between the seller's right to cure (according to Art. 48(1)
CISG) and the buyer's right to avoid the contract (according to Art. 49(1)(a) CISG). About this the
following may be stated.
b) aa) The term fundamental breach of contract according to Art. 49(1)(a) CISG is defined in Art.
25 CISG. According to this Article, the condition for a fundamental breach of contract is an especially
weighty impairment of the buyer's interest in the performance. Yet, besides the objective weight or
importance of a defect, it is decisive of the substantiality of a breach of contract, whether the defect
can be removed by subsequent repair or substitute delivery. The UN Sales Law proceeds from the
fundamental precedence of preservation of the contract, even in case of an objective fundamental
defect. When in doubt, the contract is to be maintained even in case of fundamental defects, and aan
immediate contract avoidance should stay exceptional. Because, as long as and so far as (even) a
fundamental defect can still be removed by remedy or replacement, the fulfillment of the contract by
the seller is still possible and the buyer's essential interest in the performance is not yet definitively at
risk. According to doctrine as well as jurisdiction of the UN Sales Law, an objective fundamental
defect does not mean a fundamental breach of contract when the defect is removable and the seller
agrees to remedy this defect without creating unreasonable delay or burden on the buyer. That the
buyer is obliged to accept a remedy (subsequent cure of the defect) offered by the seller results from
Art. 48(2) CISG. According to this provision, when the seller notifies the buyer of his readiness for
performance, the buyer may not within a reasonable period of time "resort to any remedy which is
inconsistence with performance by the seller". For this reason, the buyer does not have the right to
avoid the contract even in case of an objective fundamental defect as long as and as far as the seller
comes up with a remedy (subsequent cure of the defect) and such is still possible (see judgment of the
Bundesgericht [Swiss Supreme Court] of 28 October 1998, 4C.197/1998 Erw. 2b [available at
<http://cisgw3.law.pace.edu/cases/9810218s1.html>]; Oberlandesgericht [Appellate Court] Koblenz
[Germany], judgment of 31 January 1997, 2 U 31/96 = CISG Online 256 [available at
<http://cisgw3.law.pace.edu/cases/970131g1.html>]; Handelsgericht Zürich SZIER 1996, 51; Schlechtriem, Internationales UN-Kaufrecht, Tübingen 1996, page 99/100 side no. 180; Schlechtriem/Huber, Kommentar zum einheitlichen UN-Kaufrecht, 3.A., München 2000, note 12 to Art. 49, N 1, 20, 23 and 24 to Art. 48; Honsell/Schnyder/Straub, Kommentar zum UN-Kaufrecht, Berlin 1997, note 35 to Art. 48 and note 23 to Art. 49; Achilles, Kommentar zum UN-Kaufrechtsübereinkommen (CISG), Neuwied 2000, note 4 et sqq. to Art. 48).
c) In the present case, both the quality problem or manufacturing defect (tearing out of the connection of the D2-arch with the "stamp") which occurred on 27 May 2000, and the lacking stability of the Arcor-Arch could have been remedied. And it is certain that the [seller] reacted immediately to the notice of defects dated 27 May 2000 and made different proposals ("as I see it") in his writing dated 29 May 2000, through which the "goal jointly", i.e., the subsequent performance, could be reached. The [buyer] reacted to the [seller]’s readiness to remedy on 14 June 2000 by declaring the contract avoided. [Buyer] was not entitled to do so according to the explained priority of the entitlement to subsequent cure or remedy over the entitlement of contract avoidance that forms the basis of the UN Sales Law, even in the case of an objective fundamental defect.
d) aa) According to UN Sales Law doctrine, a buyer’s right of immediate contract avoidance is conceded by way of exception, without having to wait for the seller’s readiness to remedy or the remedy itself. Yet, these exceptional facts of the case require that a remedy not be possible, is refused by the seller, or is not reasonable for the buyer. An entitlement to immediate contract avoidance is conceded by Schlechtriem/Huber (op. cit., note 12 to Art. 49) if:
| - |
The date of delivery has a fundamental importance (usual practice in the trade or similar cases); |
| - |
The remedy of the defect by the seller is not reasonable from an objective point of view; for example because of the uncertainty about the refund of the expenses in the sense of Art. 48(1) CISG; |
| - |
It is not reasonable for the buyer to agree with the remedy of the defect; for example, because it is obvious that the seller is not capable of this; |
| - |
The seller refuses to remedy the defect seriously and finally. |
bb) The parties did not agree upon a date of delivery in the sense of a fixed trade usage that would exclude a subsequent performance. The arches were supposed to be used as advertising media in several races during the entire season. If a remedy would have been carried out after the first use on 27 May 2003 within a useful period of time, the arches could have been used during further races. Therefore, the inadequate performance of the agreed delivery of the arches for the car racing in Hockenheim on the 27/28 May 2000 did by no means exclude the subsequent performance during the following races during the 2000 season. It was not a case of complete impossibility, but only a partial impossibility. As far as the still possible part of the owed performance is concerned, the [seller] can rely on his entitlement to remedy. As [seller] has – as stated (see 4c, supra) – at least analogously declared his readiness to remedy, the [buyer] has to bear the onus of assertion and proof concerning the existence of an exceptional fact of the case. But a corresponding state of affairs, which in the case of a fixed usage could justify the priority of [buyer]’s right to avoid the contract over [seller]’s entitlement to remedy the defect, was not substantiated or proven in the proceedings.
5. a) For this reason, the [buyer] was not able to declare the contract avoided in a legally binding way in his writing of 14 June 2000. In this case, the legal consequences depend on the reaction of the seller. Only if the seller consents to the avoidance of the contract will the contract get avoided. If, however, the seller disagrees with the avoidance of the contract or does not declare the contract avoided himself, the contract consequently will continue (Schlechtriem/Huber, op. cit., note 66 et seq. to Art. 49).
In this proceeding, the [seller] asks the [buyer] for performance: payment of the purchase price. Thus, [seller] holds on to the continued existence of the contract, and consequently the primary duty of the [buyer]: to pay the [seller] for the goods. Based on the contract concluded by the parties and according to Art. 53 CISG, the [buyer] is bound to pay the purchase price and to receive the goods. The fact, that – with the exception of the right to avoid the contract – the [buyer] is entitled to certain rights in the event of defects, does not alter the situation.
b) The [seller] submitted claims for damages, but he did not substantiate them nor did he reserve the assertion of these claims "in further proceedings". Claims against the [buyer] for damages, as defined by Art. 45(2)(b) in connection with Art. 74-77 CISG, consequently are not to be judged in the present lawsuit.
6. a) The purchase price must be paid according to Art. 58(1) and (3) in connection with Art. 59 CISG without specific summons or adherence to formalities, as soon as the seller has made the goods available to the buyer and the buyer has had the opportunity to examine the goods. In the present case, the maturity of the charge would have arisen on 26 May 2000, when the three arches were delivered and ready to be examined by the [buyer]. However, the [seller] billed the purchase price of Sf 127,157.20 on 31 May 2000 on terms "20 days netto" (KB 10), which must be seen as a deferment of payment and reprieve of the maturity. The payment claim therefore did not mature until 20 June 2000.
b) If the buyer fails to pay the purchase price when due, the seller is entitled to interest on it "without prejudice to any claim for damages recoverable under Art. 74." (Art. 78 CISG). The amount of interest is not laid down in the UN Sales Law. It is controversial, whether one must aim for automous contract gap-filling and a uniform solution or if recourse must be made to national law. In regard to national law, the mainly recommended recourse, it is again uncertain how the determination of that law within the scope of the conflicts of law is supposed to take place (Schlechtriem/Bacher, op. cit., note 27 and 32 to art. 78 CISG). The doctrine convincingly postulates that to determine the relevant national law, it is the connection to the currency that is decisive for the primary claim. (Schlechtriem/Bacher, id., note 33 to Art. 78 CISG). Decisive in this connection is the rule of the amount of the interest on arrears that is reached by the concerned system of laws (Bacher, id., note 34 to Art. 78 CISG).
c) In the present case, the primary claim is owed in Swiss francs. Thus, Swiss law is the applicable law for the determination of the amount of interest owed on arrears. Since the [seller] did not prove or demand a discount rate that would exceed the usual 5% percent (Art. 194 para. 3 OR [*]), the statutory interest on arrears of 5% is owed (Art. 104 para. 1 OR).
d) In the CISG’s sphere of application, even the default of payment on the date of maturity creates a dereliction of duty, so that the need of payment of interest sets in immediately with the maturity (Schlechtriem, op. cit., note 319). As the maturity started off on 20 June 2000 (see 6a, supra), the [seller] is entitled to interest to the amount of 5% from this date on.
7. Proceeding on that assumption, the [buyer] is fully liable to pay the cost (§ 112 para.1 ZPO [*]).
JUDGMENT
Accordingly:
- Approving the statement of claim, the [buyer] is obliged to pay to the [seller] Sf 127,157.50 including 5% interest since 20 June 2000.
- The cost of the action, consisting of a court charge of Sf 7,600.-, office charge and expenses of Sf 582.-, in total Sf 8,182.-, will be imposed on the [buyer].
- The [buyer] is obliged to compensate to the [seller] the party’s costs in the judicially laid down amount of Sf 20,695.- (including VAT).
- Delivery service of this judgment to the [seller]’s legal representative (in duplicate; with credit note) and to the [buyer]’s legal representative (in duplicate; with account).
Aargau, 5 November 2002
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Commercial Court of the Canton of Aargau
The President:
The Clerk of the Court: |
[...]
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this presentation, the Plaintiff of Switzerland is referred to as [seller]; the Defendant of Germany is referred to as [buyer]. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sf].
Translator’s note on other abbreviations: OR = Bundesgesetz vom 30. März 1911 betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht) = [Swiss Code on the Law of Obligations]; ZPO = Zivilprozessordnung [Code of Civil Procedure].
** Martin F. Koehler received his law degree from the University of Hannover, Germany, in 2002. After having worked for international organizations in New York and Brussels he is currently working on his thesis in the field of the CISG at the University of Hamburg.
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