A German manufacturer of fork lifts, plaintiff, brought an action for a declaratory judgment that the French buyer, defendant, had no right to distribute the manufacturer's fork lifts in France. The buyer argued that it had the right to do so according to an exclusive distribution contract between the parties. The court of first instance allowed the manufacturer's claim. On appeal, the buyer objected to the jurisdiction of the German court.

The appellate court held that it had jurisdiction. Under article 5(1) of the European Communities Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, jurisdiction is based on the place of performance of the contract and, in this case, the place of performance was the manufacturer's place of business in Germany (articles 31(a), 31(b) and 57(1) CISG).

The court found that the CISG was applicable even though, in general, the CISG applies to contracts of sale and not to agency contracts. In this case, although the dispute was not over a contract of sale, the question for determination was whether the manufacturer was obliged to deliver the goods to the buyer. Such an obligation does not only provide the other party with the right to distribute the goods, it also includes the general obligation by the manufacturer to supply the goods to the other party under certain conditions. This general obligation to supply goods constitutes the basis for future contracts of sale. Therefore, the question of whether or not such an obligation exists must be answered according to the Convention (article 1(1) CISG). As the buyer had failed to provide particulars as to the alleged exclusivity arrangement, the manufacturer's claim was allowed.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 57(1)(a) [Also cited: Articles 1(1) ; 3(1) ; 31(a) and 31(b) ]

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Scope of the Convention (issues covered and excluded): distributorship agreement (even though the Convention does not generally apply to exclusive distributorship agreements, CISG deemed applicable as case concerned seller's general duty to deliver arising from the distributorship agreement as a prerequisite of the individual sales contracts];

57A [Place for payment: in absence of agreement, payment at seller's place of business]

Descriptors: Applicability ; Scope of Convention ; Distributorship agreements ; Payment, place of ; Jurisdiction

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Editorial remarks

Unavailable

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=221&step=Abstract>

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER) / Revue Suisse de droit international et de droit européen (1997) 138-139

Italian: [1998] Diritto del Commercio Internazionale 1089 No. 192

CITATIONS TO TEXT OF DECISION

Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/208.htm>; Recht der Internationalen Wirtschaft (RIW) 1996, 1035-1036; Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre (IPRspr) 1995 No. 152 [307-308]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=221&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 1 para. 16a Intro. 14-24 para. 7

German: Klima, Recht der Internationalen Wirtschaft (RIW) 1996, 1036

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Pace Law School Institute of International Commercial Law - Last updated August 11, 2005

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