Germany 3 April 1996 Supreme Court (Cobalt sulphate case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960403g1.html]
Primary source(s) for case presentation: Case text
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: VIII ZR 51/95
CASE NAME:
CASE HISTORY: 1st instance LG Hamburg 5 November 1993 [affirmed]; 2d instance OLG Hamburg 14 December 1994 [affirmed]
SELLER'S COUNTRY: Netherlands (plaintiff assignee of Dutch seller)
BUYER'S COUNTRY: Germany (defendant)
GOODS INVOLVED: Cobalt sulphate
Case law on UNCITRAL texts (CLOUT) abstract no. 171
Reproduced with permission of UNCITRAL
The Dutch plaintiff was the assignee of a Dutch company, which had sold four different quantities of cobalt sulphate to the [buyer], a German company. It was agreed that the goods should be of British origin and that the plaintiff should supply certificates of origin and of quality. After the receipt of the documents, the [buyer] declared the contracts to be avoided since the cobalt sulphate was made in South Africa and the certificate of origin was wrong. The [buyer] also claimed that the quality of the goods was inferior to what was agreed upon. The plaintiff demanded payment. The German Supreme Court held that there were no grounds for avoidance of the contract and thus found for the plaintiff.
According to the Court, the declaration of avoidance could not be based on article 49(1)(b) CISG since the plaintiff had effected delivery. The delivery of goods which do not conform with the contract either because they are of lesser quality or of different origin does not constitute non-delivery.
The Court also found that there was no fundamental breach of contract since the [buyer] failed to show that the sale of the South African cobalt sulphate in Germany or abroad was not possible (article 49(1)(a) CISG). Thus, the [buyer] failed to show that it was substantially deprived of what it was entitled to expect under the contract (article 25 CISG).
Lastly, the Court held that the delivery of wrong certificates of origin and of quality did not amount to a fundamental breach of contract since the [buyer] could obtain correct documents from other sources. Accordingly, the [buyer] could not refuse payment under article 58.
Go to Case Table of ContentsAPPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code numbers:
25B [Definition of fundamental breach: lack of conformity of goods; lack of conformity of documents]; 31D [Delivery of goods: aliud v. peius]; 35D [Conformity of goods to contract]; 49A [Buyer's right to avoid contract: grounds for avoidance]
Descriptors:
Excerpt from commentary by Peter Schlechtriem on Uniform Sales Law in the Decisions of the Bundesgerichtshof*
* Commentary on CISG issues considered by the BGH, presented in "50 Years of the Bundesgerichtshof [Federal Supreme Court of Germany]: A Celebration Anthology from the Academic Community". Click here for the full text of this commentary.
Avoidance. "The uniform sales laws have reduced the possibility of contract avoidance to two basic cases: The obligee can avoid the contract if the obligor's breach is a fundamental breach of contract. Furthermore, the obligee can avoid the contract for certain types of breaches when the obligor does not perform before the end of an additional period of time set by the obligee. The 'Nachfristmodell', taken from German and Swiss law - see Art. 107, 108 OR [Obligationenrecht (Swiss Law of Obligations)] - and therefore occasionally called 'le Nachfrist allemand' during the preparations of the Hague Convention on Sales, can under the CISG only be used to avoid the contract in cases of non-delivery by the seller and non-payment or refusal to take possession by the buyer. Differently than under the Hague Convention, in particular for non-conformity of the goods, the buyer cannot avoid the contract by setting a time period for the seller to remedy a defect.52 The reasons for this limitation on the right to avoid the contract, as well as for the corresponding limitation on the buyer's right to require delivery of substitute goods under Art. 46(2) CISG, have often been mentioned and are quite obvious: Avoidance of the contract, but also the buyer's demand for substitute goods with the necessary return shipment of the complained of goods, regularly entail storage and transport costs in addition to the associated risks for the goods. Even if one only sees a limited broadening of legal argument for certain liability rules through consideration of costs and benefits under the economic analysis of law, it is clear that it makes economic sense in such cases 53 that the buyer either reduce the price or utilize the non-conforming goods as well as possible and liquidate the resulting damages.
"The Bundesgerichtshof has respected this basic conception of restricted avoidability of the contract due to a lack of conformity of the goods and - differently than some foreign courts 54 -- has correctly set high demands to meet the avoidance threshold. In the well-known 'cobalt sulfate case,'55 after careful consideration of the partially differing authorities in this respect, the Court did not allow an irreparable defect alone to be sufficient for the presumption of a fundamental breach of contract.56 Furthermore, the Court emphasized, once again quite correctly in my opinion, that it is primarily the responsibility of the parties to clearly specify in the contract the importance of certain qualities of the goods so that the absence of such qualities would amount to a fundamental breach of contract by the seller.57 Therefore, it remains possible for the parties to give or demand 'guarantees' - or functionally equivalent - to make the existence of certain qualities or characteristics a 'condition,' in order to secure the possibility of avoiding the contract for non-conforming goods."
52. This seems only slightly different than Huber's view in Schlechtriem/Huber, supra note 12, at Art.
45, para. 25, Art. 46 para. 55, 68. See also, id. at Art. 49, para. 55, 56 (The obvious prerequisite for
avoidance of the contract (based on expiration of an additional time-period or "Nachfrist") is "that the
breach of contract (such as the delivery of defective goods) objectively corresponds in its seriousness to the
requirements set for a fundamental breach"); the setting of an additional period of time therefore only has
the limiting effect of Art. 47(2) CISG.
53. Of course, this does not apply for a local sale nor for a consumer sale. That is why the conception upon
which is based the EU directive on sales of consumer goods (Richtlinie 1999/44/EG des Europäischen
Parlaments und des Rates vom 25. Mai 1999 zu bestimmten Aspekten des Verbrauchsgüterkaufs und der
Garantien für Verbrauchsgüter, AblEG L 171/12, Directive of the Parliament and Council of the
European Union on the Sale of Consumer Goods and Associated Guaranties of 25 May 1999) and the
corresponding easing of the requirements for the buyer's right to require delivery of substitute goods, and
for rescission of the contract compared to the CISG, have a different policy basis.
54. On the delivery of non-conforming red wine, see Cour de Cassation of 23 January 1996, IPRax 1996,
126 [case presentation also at <http://cisgw3.law.pace.edu/cases/960123f1.html>] and on this case, Witz, D. 1996, 334 ff. sub II. A., and Witz/Wolter, RIW 1998, 278 ff., 280: The
Cour de Cassation did not worry itself with questions of detail, and with a simple substitution de motifs, it
saved the appellate court's judgment from reversal.
55. BGH of 3 April 1996, BGHZ 132, 298 f.
56. Id. at sub II. 2. c) dd).
57. Id. at sub II. 2. c) bb).
Aliud vs. peius. "[I]mportant for understanding warranty law under the CISG, but especially important for the (internal) German sales law, are the Bundesgerichtshof's remarks on peius [delivery of defective goods] and aliud [delivery of the wrong goods]:58 according to the Court, an aliud is the same as a defective delivery.59 Although the Bundesgerichtshof wants to leave the question open for the case of an especially blatant deviation of the goods from the qualities required by the contract, it is nevertheless clear that the equal treatment of aliud and peius has generally been accepted and viewed as an alleviation for the application of the law. Even for cases of blatant deviation, there is no need to qualify them as 'non-delivery' with the resulting possibility of contract avoidance after the expiration of a set additional period of time, the dispensation from giving notice, and the longer statute of limitations compared to § 477 of the German Civil Code (BGB) and Art. 3 of the Contract Act. The more extreme the deviation, the easier it will be to classify it as a fundamental breach of contract, since it will be that much less expected of the buyer that it attempt to use the unsuitable goods. A claim for delivery of substitute goods pursuant to Art. 46(2) CISG is then also available to him. Only in the cases brought as an example for § 378 of the German Commercial Code (HGB), where there is an obvious mix-up or a substitute offer because the seller cannot at all deliver or obtain the promised goods and therefore offers unordered goods, can one presume that no delivery has taken place.60"
58. [BGH of 3 April 1996, BGHZ 132, 298 f.] at sub II. 2. b).
59. The same in Austria: OGH [Austrian Supreme Court] of 29 June 1999, TranspR-IHR 1999, 48, 49 sub b) [case presentation also at <http://cisgw3.law.pace.edu/cases/990629a3.html>].
60. Still considered fundamental on § 378 HGB in this respect is: von Caemmerer, Falschlieferung, in Festschrift für Martin Wolff zum 80. Geburtstag. Beiträge zum Zivilrecht und internationalen Privatrecht, (von Caemmerer ed., 1952) 3, 8 f.
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: 2 European Current Law, Monthly Digest (1997) No. 87 [67] = European Current Law Yearbook (1997); [1998] European Current Law No. 233 [144]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=182&step=Abstract>
German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER) / Revue suisse de droit international et de droit européen (1997) 137-138
Italian: Diritto del Commercio Internazionale (1997) 759-760 No. 175
Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 299-300
CITATIONS TO TEXT OF DECISION
Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/135.htm>; Der Betrieb (DB) 1996, 1179-1180; Eildienst Bundesgerichtliche Entscheidunger (EBE/BGH) 1996, 180-184; Entscheidungen des Bundesgerichtshofs in Zivilsachen (BGHZ) 132, 290-305; Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 1996, 444-448; Monatsschrift für Deutsches Recht (MDR) 1996, 778-780, 693; Neue Juristische Wochenschrift (NJW) 1996, 2364-2367; Recht der Internationalen Wirtschaft (RIW) 1996, 594-597; Wertpapier-Mitteilungen (WM) 1996, 1594-1598; Zeitschrift für die Anwaltspraxis (ZAP) EN No. 479/96; Zeitschrift für Wirtschaftsrecht (ZIP) 1996, 1041-1046; Juristische Schulung (JuS) 1996, 1034; Wirtschaftsrechtliche Beratung (WiB) 1997, 205-207; Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1997, 342-345; Forum des Internationalen Rechts / The International Legal Forum 1 (1996) 136-139; Juristenzeitung (JZ) 1997, 35-38; Entscheidungssammlung zum Wirtschafts- und Bankrecht (WuB) I H 1.-1.97 [129-131]; [1997] Deutche Zeitschrift für Wirtschaftsrecht (DZWir) 66-70; BGHR CISG Art. 49(1)(a); Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=182&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: Ferrari, International Legal Forum (4/1998) 138-255 [231 n.843 (rejection of "aliud" concept)]; Honnold, Uniform Law for International Sales (1999) 212 [Art. 25 (standards for avoidance)], 280 [rejection of "alliud" concept], 328 [Art. 49]; T.S. [Simons] Forum des Internationalen Rechts / The International Legal Forum 1 (1996) 139-140; Mullis, Avoidance for Breach under the Vienna Convention: Critical Analysis of Some of the Early Cases (1998) nn.79-80; Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 243-245 nn.223, 227, 294 n.431, 351 n.600 [fundamental breach (gravity of consequences of breach): remedy-oriented approach], 258-259 n.267 [unfeasibility of cure does not necessarily constitute fundamental breach]; Schlechtriem, in: Uniform Sales Law in the Decisions of the Bundesgerichtshof (2001), at n.55; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 6-8 n.60; Graffi, Case Law on the Concept of "Fundamental Breach" in the Vienna Sales Convention, Revue de droit des affaires internationales / International Business Law Journal, No. 3 (2003) 338-349 at n.89; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.576, 706-707, 712; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 41; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 8 para. 29 Art. 25 paras. 1, 9, 16, 21, 21a Art. 35 paras. 9, 10, 34 Art. 46 paras. 24, 25, 26, 30 Art. 49 paras. 2, 7, 11, 15, 19; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 149, 159 et seq., 172 et seq.; Spaic, Analysis of Fundamental Breach under the CISG (December 2006) nn.306, 309, 311-315, 354, 367, 369, 371-374; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at pp. 247, 375, 383, 436; Peter Huber, CISG: The Structure of Remedies, 71 RabelsZ (2007) nn.7, 21, 33, 55, 57; Peter Huber, in: Huber & Mullis, "The CISG: A new textbook for students and practitioners", Sellier European Law Publishers (2007) 229
Finnish: Huber/Sundström, Defensor Legis (1997) 747 [755-756]
French: Spiegel, Receuil Dalloz (1997) 218-219; Zuppi, in: Sebastien Bettschart ed., Les ventes internationales (CDICAC 1998) Vol. 38, 36-38
German: Benicke, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1997, 326-331; Gaus, Wirtschaftsrechtliche Beratung (WiB) 1997, 207-208; Hohloch, Juristische Schulung (JuS) 1996, 1034-1035; Karollus , Juristen-Zeitung (JZ) 1996; Karollus, Juristen-Zeitung (JZ) (1997) 38-39; Koch, Recht der Internationalen Wirtschaft (RIW) 1996, 678-688; Gaus, Wirtschaftsrechtliche Beratung (WiB) 1997, 207-208; Nielsen, Entscheidungssammlung zum Wirtschafts- und Bankrecht (WuB) I H 1.-1.97 [131-132]; Magnus, Lindenmaier-Möhring, Nachschlagewerk des Bundesgerichtshof zum CISG (LM CISG) No. 3 (9/1996); Piltz, Außenwirtschaftliche Praxis (December 1997) 425-426; Piltz, Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 1996, 448 and Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 13 [16 n.38, 17 nn.52, 53]; Schlechtriem, Entscheidungen zum Wirtschaftsrecht (EWiR) 1996, 597-598; Sieg, [1996] Außenwirtschafltliche Praxis (AW-Prax) 390-392; T.S. [Simons] Forum des Internationalen Rechts / The International Legal Forum 1 (1996) 139-140; Westerman, Deutsche Zeitschrift für Wirtschaftsrecht (DZWir) 1997, 45-47; Wolf, [1998] Wertpapier-Mitteilungen (WM) No. 47 Special Suppl. 1998/2, 41 [43-44]
Go to Case Table of ContentsQueen Mary Case Translation Programme
Docket No. VII 51/95
Translation [*] by Dr. Peter Feuerstein [**]
Translation edited by Ruth M.Janal [***]
Facts of the case
The plaintiff [seller's assignee] requests from the defendant [buyer]
payment of the purchase price for 15,0000 kg cobalt sulfate 21%. The basis of
the claim constitutes four sales contracts dated 10 and 14 January 1992, which
the [seller] had made with the [buyer]. The [seller] had its place of business,
as does the [seller's assignee], in the Netherlands. The [buyer] deals with
chemical products; its place of business is Hamburg [Germany].
The two written purchase agreements of 10 January 1992, negotiated through a
mercantile broker and formulated by [seller], concerned 3,000 kg and 2,000 kg
of cobalt sulfate and contained the following details:
"Product: Cobalt Sulfate 21% Quality; ex M.
Payment: CAD [cash against documents] by cable transfer; Documents: Certificate of Analysis."
In the final remarks of the mercantile broker, the goods were described as
"cobalt sulfate, at least 20/21%; origin: England". Pertaining to the
delivery of the 2,000 kg, the description of the goods contained after the
percentage the addendum: "Feed Grade". The payment clause stated:
"Net cash against documents". Under "remarks", it was
stated: "Certificate of Origin and Certificate of Analysis have to be
provided by the [seller]". The two purchase contracts of 14 January 1992
for 5,000 kg cobalt sulfate each, were concluded via phone. The written version
of these contracts, drawn up by the [seller] on that very day, contained the
same description of the goods and payment conditions as the contracts of 10
January 1992. Under "documents", it was stated: "Certificates of
Analysis and Origin". All four contract documents contained the following
remark: "Without return of a signed copy by mail within 2x24 hours (after
you received originals) we consider this contract accepted". No response
to this remark was made by the [buyer].
On 29 January 1992, [seller] sent to the [buyer] at its request and for its
information the Certificate of Analysis of firm M, dated 2 December 1991,
concerning another contract. On 2 March 1992, [seller] informed the [buyer]
that the goods were ready for collection at a warehouse in Antwerp. The
[seller] then sent to the [buyer] two invoices for DM [Deutsche Mark] 172,000
and DM 348,250, a Certificate of Origin of the Chamber of Commerce of Antwerp,
wherein it was stated that the goods had their origin in the EEC, as well as a
Certificate of [chemical] Analysis of firm M. The [buyer] considered these
documents insufficient and complained about differences between the Certificate
of Analysis provided on 29 January 1992 and the Certificate of Analysis
provided on 2 March 1992. About the Certificate which was subsequently provided
to her, the [buyer] complained that it contained two, moreover, two different
values of zinc. After [seller] provided another Certificate of Analysis on 17
March 1992, the [buyer] declared, via fax of 19 March 1992, the avoidance of
all four contracts. The [buyer] explained that, due to the unresolved
discrepancies and after a further inquiry with the London based manufacturer M,
it had great doubts about the correctness of the Certificates of Analysis
presented. At the proposal of [seller], who had objected to the avoidance by
the [buyer], the [buyer] agreed to an examination of the goods by an expert, to
be commissioned by [buyer].
By letter dated 26 March 1992, firm M informed the [buyer] that the objected
different values of zinc in the Certificate of Analysis of 2 March 1992 were
due to a typo. After the [buyer] had obtained the opinion from the commissioned
expert, the [buyer] stated in a fax to [seller], dated 23 April 1992, that due
to the discrepancies found in the chemical values of the examined goods, the
[buyer] confirmed its avoidance of 19 March 1992. In the correspondence that
followed, [seller] insisted on the payment of the purchase price. The [buyer]
repeated its declaration of avoidance after an additional period of time,
granted by [buyer] to the [seller] to provide four separate Certificates of
Analysis, had elapsed without result. Expressly, the [buyer] now also based its
avoidance on the fact that the goods consisted of 2% of indissoluble parts and
that, therefore, the goods did not constitute customary trade quality. On 8
January 1993, the [buyer] declared once again the avoidance of the contracts,
now also for the reason that the goods were neither of English origin, as
stipulated, nor did they have their origin in the EEC, as stated in the
Certificate of Origin. In the course of the legal proceedings, it became
undisputed between the parties that the cobalt sulfate had been manufactured by
a South African firm for firm M. The District Court granted [seller]'s motion
for payment of the full purchase price of DM 520,250. The Court of Appeals
dismissed the appeal by the [buyer]. With the final appeal, the [buyer]
continues to pursue the dismissal of the claim.
Grounds for the decision
I. The Court of Appeals stated:
According to Art. 53 of the United Nations Convention on Contracts for the
International Sale of Goods (CISG) , which applied in the present dispute, the
[buyer] was obligated to pay the purchase price.
The Court held that the [buyer]'s declaration of avoidance based on Art. 49(1)(a)(b)
CISG does not prevail because there was no fundamental breach of contract in
the meaning of Art. 25 CISG. Even if one assumed that the delivery of English
goods had been stipulated and that cobalt sulfate was actually manufactured in
England, goods produced in South Africa would admittedly constitute an aliud.[*]
However, such an aliud is treated under the Convention as a delivery of
goods not in conformity with the contract, which in the present case does not
cancel the [buyer]'s contractual interest. The [buyer] neither submitted that
the goods were not usable in the normal course of business, nor that it could
not be expected for it to attempt to resell the goods. As far as the [buyer]
referred to export business with India and other countries in South East Asia
with which the [buyer] would have had "unforeseeable difficulties"
due to the (then existing) embargo for goods from South Africa, [buyer]'s
pleading was unsubstantiated. The [buyer] did not show that it would have been
more difficult, possible only at lower prices, or completely impossible to sell
the goods in other countries. The [buyer]'s allegation that [seller] deceived [buyer] about the origin of the goods also does not have any merit. It was not
apparent that the [seller] knew or at least considered that an English origin
of the goods was decisive for the [buyer]'s purchase. In particular, the
[buyer] did not sufficiently disprove the [seller]'s allegation that firm M
only distributes cobalt sulfate manufactured in South Africa and customarily
affixes on these goods an English ("UK") Certificate of Origin; for this
reason, the [buyer]'s orders were also to be understood in this sense.
The Court of Appeals stressed the above in view of the fact that the parties
did not conduct direct negotiations for the two purchase contracts of 10
January 1992, but acted through a broker. It is undisputed that the origin of
the goods was not expressly discussed in the course of the later negotiations
about the purchase contracts of 14 January 1992. The [seller]'s assertion about
the existence of a trade custom pertaining to the British ("UK")
Certificate of Origin being issued for cobalt sulfate from South Africa was
disputed by the [buyer]. Still, neither the [buyer]'s challenge nor the fact
that such a usage would have to be disapproved of as unfair and legally unbinding,
excludes the possibility that such an actual handling has spread and that the
[seller] understood the [buyer]'s offer accordingly.
As far as the condition of the goods is concerned, the parties are in
dispute over whether the [buyer] bought cobalt sulfate in technical quality or
fodder quality. At any rate, the [buyer] did not submit that it expressly
requested technical quality. Even if one assumed such a stipulation, this does
not mean that the delivery of fodder quality constitutes a fundamental breach
of contract entitling the [buyer] to avoid the contract. The [buyer] did not
state that such cobalt sulfate was more difficult for it to resell, that it
could only have resold such cobalt sulfate at a lower price, or that such an
attempt of disposal, perhaps with the help of the already employed broker,
could not have been expected from [buyer] at all.
The Court of Appeals further held that the delivery of incorrect documents
by the [seller] did not give the [buyer] the right to avoid the contract. The
Court left open whether the case concerned a typical documentary transaction
and whether the delivery of the Certificate of Analysis and the Certificate of
Origin was a main obligation of the [seller]. At least with the expert's
opinion commissioned by the [buyer], the [buyer] received a correct Certificate of
Analysis. Likewise, the expected success of the transaction was not defeated by
the delivery of the incorrect Certificate of Origin; the [buyer] was able to
obtain a correct Certificate of Origin without difficulties from the local
chamber of commerce.
The Court of Appeals also found that the [buyer]'s loss of trust caused by
the delivery of inaccurate documents did not constitute a ground for avoidance
of contract. The discrepancies between the respective Certificates of Analysis
were in part excused, and in part they were not material. Apart from that, the
Court held that Art. 49 CISG deals extensively and conclusively with the
avoidance of contract as the "ultima ratio". It does not
provide for avoidance of contract for a fundamental loss of trust, based upon
the principles of loyalty and good faith. The question whether the [buyer] can
request release from the obligation to pay the purchase price under the aspect
of tort according to German or Dutch domestic law and whether such a claim can
come into consideration besides the CISG, does not have to be discussed, as the
[buyer] did not plead a deception by the [seller]. Furthermore, the payment is
also due, as the [buyer] does not have a right of retention. The [buyer] was
obligated to pay at the presentation of the documents, and it obtained them.
The [buyer] did not request a new (correct) Certificate of Origin and Warehouse
Receipt. Furthermore, the [buyer] cannot claim a right of retention under a
different aspect.
II. These findings withstand the test of legal review in
all major points.
1. The Court of
Appeals was correct to apply the CISG. The parties to the sales contracts have
their respective place of business in different States, which both are
signatories to the CISG (Art. 1(1)(a) CISG; cf. Schlechtriem/Schlechtriem,
2nd ed. appendix 1).
2. a)
The Court of Appeals also correctly held – and was insofar unchallenged by the
final appeal – that only Art. 49 CISG can constitute the legal basis for the [buyer]'s avoidance of contract.
An application of Art. 72 CISG is not possible, because the [seller] complied
with its contractual obligation to store the goods in a warehouse in Antwerp
and to notify the [buyer] that it could pick up the goods, while at the same
time sending the documents. With this, the [seller] performed its delivery
obligation, even though this performance was defective. Thus, there is no room
to assume only an imminent future breach of contract, which is required for the
preventive avoidance of contract under Art. 72.
b) Nevertheless, the
[buyer] in its appeal expresses the opinion that the seller can only request
payment of the purchase price if it fulfills its obligation to deliver
goods that conform to the contract (Art. 30 CISG). Buyer alleges that as long
as the seller does not submit and, if necessary, prove such delivery of
conforming goods, the breach constitutes a case of non-delivery, entitling the
buyer to avoid the contract under Art. 49(1)(b) CISG. Therefore, [buyer]
asserts that it is irrelevant whether the [seller]'s breach of contract was
fundamental in the sense of Art. 25, 49(1)(a) CISG.
[Buyer]'s position is incorrect. Contrary to German domestic
law, the CISG does not differentiate between delivery of different goods and
delivery of goods that do not conform to the contract. Under the CISG, an aliud
delivery does therefore, at least generally, not constitute a non-delivery, but
constitutes a delivery of non-conforming goods. The CISG is different from
German domestic law, whose provisions and special principles are, as a matter
of principle, inapplicable for the interpretation of the CISG (Art. 7 CISG).
The Court does not need to resolve whether, in the event of a blatant divergence
from the contractual condition, a non-delivery in the meaning of Art. 49(1)(b)
CISG can arise (see the references at Schlechtriem/Schwenzer, Art. 35
CISG, n. 10, fn. 32, and at Soergel/Lüderitz, 12th ed., UN-Kaufabkommen, Art.
35, n. 5 fn. 5). Such a violation of contract did not occur in the present
case. The [buyer] bought cobalt sulfate 21%; this has been delivered by the
[seller]. According to the [buyer]'s submissions in the final appeal
proceedings, the Court must assume that the [buyer] did not order the delivered
fodder quality, but technical quality; i.e., goods without the flow
auxiliaries. This divergence is certainly not severe enough to regard the
delivery not only as non-conforming, but as not having been made at all (cf.
Herber/Czerwenka, Internationales Kaufrecht, Art. 49, n. 8;
Schlechtriem/Schwenzer, op. cit., n. 9 and 10; Art 49, n. 19; Soergel/Lüderitz,
op. cit., Art 35, n. 5; Staudinger/Magnus, BGB,[*] 13th edition. Art.
35 CISG, n. 7 seq., Hothause, RIW [*] 1990 (101, 106);
Kappus, NJW [*] 1994 (984)).
c) aa) As a legal basis for the
[buyer]'s avoidance of the contract, only the provision of Art. 49(1)(a) CISG
remains.
This provision states that the buyer may declare the contract
avoided if the failure by the seller to perform any of its obligations under
the contract amount to a fundamental breach. A breach is fundamental according
to the definition of Art 25 CISG, if it results in such a detriment to the
other party, as to substantially deprive it of what it is entitled to expect
under the contract, unless the party in breach did not foresee and a reasonable
person of the same kind in the same circumstances would not have foreseen such
a result. Basically, contractual obligations of every kind are to be considered
for the determination of a substantial contractual interest, irrespective of
whether they constitute a main or ancillary obligation or concern quality,
quantity, time of delivery or other manners of performance. The agreement of
the parties is of first and foremost relevance (Art. 35(1) CISG). Except where
the parties have agreed otherwise, the goods do not conform with the contract
unless they are fit for the purposes for which goods of the description would
ordinarily be used; unless they possess the qualities of goods which the seller
has held out to the buyer as a model or sample; and unless the goods are packed
in the usual and necessary manner (Art. 35(2) CISG). If the non-conformity
results from a divergence from the contractual quality or another deficiency of
the goods, it needs to be ascertained whether a different method of processing
or sale of the goods was possible and reasonable in the normal course of
business, even if it had to be combined with a price reduction (cf. Herber/Czerwenka,
op. cit., Art. 25 CISG, n. 7; Soergel/Lüderitz, op. cit., Art. 25, n. 2 and
Art. 49, n. 3; Staudinger/Magnus, op. cit., Art. 25 CISG, n. 12; Kappus, op.
cit., p. 984 under II).
bb)
For the final appeal proceedings, it has to be assumed that the goods delivered
by [seller] did not conform with
the contractual agreement pertaining to their origin and
condition. However, as the Court of Appeals correctly stated, the
[buyer] – who is insofar burdened with the obligation to submit
and prove the facts – did not substantially submit that it was substantially
deprived of what it was entitled to expect under the contract as a result of
the [seller]'s breaches.
cc)
The [buyer] did not make use of the – useful (see Kappus, op. cit.,
p. 985 under II; Holthausen, op. cit,
p.102) – opportunity to expressly state in the contracts
which obligations it considered essential. An implicit agreement to this
extent cannot be concluded from the circumstances of the contracts.
dd)
In the absence of express contractual stipulations, the Court needs to
determine whether the seller’s breach of
contract substantially deprives the buyer of what it was
entitled to expect under the contract. In doing so, regard is to be had to the
CISG's tendency to limit avoidance of contract in favor of other possible
remedies, in particular a reduction of the purchase price or a claim for
damages (Art. 50, 54(1)(b) CISG). As the Court of Appeals correctly stressed,
avoidance of contract is only supposed to be the [buyer]'s last resort to react
to a breach of contract by the other party which is so grave that the [buyer]'s
interest in the performance of the contract essentially ceases to exist (cf.
Kappus, op. cit.; similar Herber/Cerwenka, op. cit., Art. 49 CISG, margin
no. 1 and 2; Schlechtriem/Huber, op. cit., Art. 49 CISG, n. 2). Only if the
buyer has substantiated and, if necessary, proven these prerequisites, does the
question arise whether the seller foresaw or could have reasonably foreseen
this result. This has to be assumed according to Art. 25, last part of the
sentence, CISG.
The [buyer]'s appeal holds that it is solely decisive for the
differentiation between a fundamental and a non-fundamental breach whether the
defect can be remedied by the seller. The Court does not follow this position.
The present case does not warrant a decision on whether the possibility of a
subsequent remedy of the goods excludes the assumption of a fundamental breach,
either completely or for a period of time (cf.
Schlechtriem/Schlechtriem, op. cit., Art. 25 CISG, n.12; Schlechtriem/Huber,
op. cit., Art. 49, nn. 9, 12; Staudinger/Magnus, op. cit., Art 25 CISG, n. 12).
Even if, as in the dispute at hand, a subsequent remedy of the non-conformity
is impossible, it does not necessarily follow that the [buyer]'s performance
interest essentially ceases to exist (quite independent of the kind and extent
of the non-conformity). "Fundamental" in the meaning of Arts. 49 and
25 CISG requires a considerable breach of contract – both when interpreting the
wording, and when looking at the purpose of the CISG's provisions regarding the
buyer's legal remedies. Such gravity can be derived from the contract itself,
from the relevant circumstances (Art. 8 CISG), or from the reasons listed in
Art. 35(2) CISG. If a considerable breach does not follow from these criteria,
then even a defect of the goods which cannot be remedied does not entitled the
buyer to avoid the contract under Art. 49(1)(a) CISG.
It is mainly up to the trial judge to determine whether a breach of contract
is deemed fundamental according to the above standard. The circumstances of the
case are always decisive (cf. Soergel/Lüderitz, op. cit., Art. 25, n. 2;
Staudinger/Magnus, op. cit, Art. 25, n. 13). In particular, it has to be
considered whether it can be expected for the buyer to put the goods to another
reasonable use. The Court of Appeals has followed these principles. Thus, its
finding that in the present case there is no fundamental breach cannot be rejected
as an error of law.
aaa)
Concerning the origin of the goods: The [buyer]'s submission that it exports
and sells "primarily" to India
and South East Asia and that it would have had
"unforeseeable" difficulties there due to the South Africa embargo,
is not sufficient to demonstrate that the possibility to export the goods to
one of these countries constituted an essential part of the contract for the [buyer].
The [buyer] neither named potential customers in one of these countries nor
specified its previous export business, nor did the [buyer] submit that a
disposal in Germany or an export to another country was not possible or only
possible with unreasonable difficulties.
bbb)
Concerning the condition of the goods, the above said also applies. A remedy of
the goods (removal of
the auxiliary flow) is not possible. Not even the [buyer]
submits that a certain quality was expressly agreed upon (Art. 35(1) CISG). But
the [buyer] pleaded and offered corresponding proof that, failing the specification
of a certain condition, technical
quality was agreed upon (Art. 35(2)(a) CISG). However, under
the present circumstances it cannot be concluded that the – allegedly
non-conforming – delivery of cobalt sulfate with auxiliary flow (fodder
quality) constitutes a fundamental breach in the meaning of Art. 49(1)(a) CISG.
A major indication to the contrary is the fact that the [broker]'s final remark
on the contract of 10 January 1992 (concerning the delivery of 2,000 kg cobalt
sulfate 21%) regarding the description of goods contains the addendum
"feed grade". The [buyer] did not object to this specification.
d) Furthermore, the
[buyer] pleads that it was also entitled to avoid the contract because the
seller had delivered
false documents and had let elapse the fixed additional time
to deliver four original Certificates of Analysis and four Certificates of
Origin. The [buyer] pleads that the [seller] also failed to perform its
contractual obligations in this regard, and that consequently the prerequisites
of an avoidance of contract were present according to Art. 49(1)(b) CISG.
aa)
It is correct that the delivery of contractually stipulated documents can be an
essential contractual obligation,
which, if breached, may entitle the buyer to declare the
contract avoided according to Art. 49(1) CISG (cf. Schlechtriem/Huber,
Art. 49 CISG, nn. 16, 25 seq.; Staudinger/Magnus, Art. 49 CISG, n. 9 and 33).
However, it is not necessary to discuss in detail whether the present contracts
constituted true documentary transaction with regard to the clause "cash
against documents", resp. "CAD by cable transfer". This is
because the sales contracts of 10 January 1992 mentioned only the Certificate
of Analysis as a document and the contracts of 14 January 1992 named solely the
Certificate of Origin; neither mentioned the Certificate of Deposit, which the
[buyer] needed in order to receive the goods at the place of deposit. The
[buyer] did not plead in the trial phase that the seller withheld the
Certificate of Deposit. But even if all four sales contracts were to be
considered as typical documentary transactions there would be, contrary to
[buyer]'s assertion, no case of non-performance. The same principles apply to the documents
which apply to the goods themselves: If the documents – though faulty – are
handed over to the buyer, they are "delivered" with the consequence
that Art. 49(1)(b) CISG does not apply. It is then relevant whether the buyer,
through the defective documents, is substantially deprived of what it was
entitled to expect under the contract. For this, one cannot consider solely the
documents alone and whether the goods could be traded or not with the delivered
documents. If the buyer can remedy the defect itself without difficulty by
obtaining a correct document, it is able to sell the goods or the goods to be
manufactured from them without difficulty, unless the goods themselves have
grave defects. In such a case it cannot be said that the essential interest in
the contract ceases to exist. It is also conceivable that the origin of the
goods is irrelevant for the further disposal of the goods (sale or
manufacturing). If that is the case, the faulty documents all the more so do
not lead to a substantial deprivation of the contractual interest.
bb)
This is how the matter lies in the dispute at hand. The [buyer] is correct when
it points out that the Certificate
of Origin from the Antwerp Chamber of Commerce that was
delivered by the [seller] was incorrect and that a use of this
certificate in the course of the on-sale could not be
expected from [buyer]. The term "origin" is understood – both according
to the normal usage as well as the relevant provisions of the EEC – to refer to
the place of production or the place of the (essential) manufacturing. The
[seller]'s objection that one has to rely mainly on the correct import, and
that the Certificate of Origin "EEC" was therefore at the time of its
issuance correct, is consequently not convincing. However, if the [buyer]
itself was able to obtain a correct Certificate of Origin, as the [seller]
submitted without the [buyer]'s objection, then the [buyer]'s substantial
contractual interest was preserved as far as such a certificate was needed for
the resale of the goods. The same principles apply to the Certificate of Origin
as to the goods themselves. The [buyer] did not plead that it could not
utilize the cobalt sulfate with a correct Certificate of Origin "South
Africa".
cc)
As far as the Certificates of Analysis to be presented by the [seller] are
concerned, it has to be concluded that
none of the four documents presented was in accordance with
the contractual requirements. However, this fact also does not lead to the [buyer]
being substantially deprived of what it was entitled to expect under the
contract. At the [seller]'s proposal, the parties agreed to have the delivered
cobalt sulfate examined by an expert to be chosen by the [buyer]. The Court of
Appeals held that the [buyer] received a correct Certificate of Analysis with
the expert report and that therefore one cannot speak of a cessation of its
contractual interest. This Court does not object to those findings. The fact
that the [seller] did not hand over four Certificates of Analysis for the
deliveries, which undisputedly stemmed from one production, provides even less
justification for an avoidance of contract. At the [buyer]'s order, the expert
viewed all the goods in store, took samples and examined these samples.
Therefore, its expert opinion included the deliveries pertaining to all four
contracts for the sale of goods. Even if the [buyer] had intended to dispose of
the four lots separately and would have needed a Certificate of Analysis for
each of them, [buyer] could have produced additional certificates itself by making
photocopies.
e) It is questionable,
whether – as the [buyer] asserts – the fraudulent foisting of non-conforming
goods (here: South
African origin) always constitutes a fundamental breach of
contract under Arts. 25, 49 CISG. The question does not have to be decided in
the present case, as the [buyer] did not show any fraudulent behavior by the
seller. Such behavior would require that the seller consciously took advantage
of the [buyer]'s alleged ignorance of the South African origin of the goods.
The [buyer] pleaded and rendered proof that neither the [buyer], nor the broker knew
that the cobalt sulfate delivered by the [seller]'s supplier, firm M, is
produced exclusively in South Africa, and that this was also not general
knowledge. Furthermore, the [buyer] holds that the [seller]'s assertion that
firm M only delivers cobalt sulfate stemming from South Africa is incorrect.
The [buyer]'s submission has to be interpreted – following its general context –
in the way that the supplier also deals with English goods. This assumed, there
was still no fraudulent behavior on the part of the seller. The [buyer] neither
submitted nor provided any proof that the [seller] had ordered South African
goods from firm M or even knew that the delivery was going to be made from
there. On the other hand, if one follows the [seller]'s argument that firm M
exclusively distributes cobalt sulfate produced in South Africa and affixes an
English certificate of origin, then the assumption of fraudulent behavior fails
for lack of the subjective requirements. If this was the case, there would be a
misconception about the origin of the goods on the part of the [buyer], but not
a conscious exploitation of this misconception on the part of the [seller]. The
[seller] submitted – undisputed by the [buyer] – that the [buyer] was aware of
these practices. In doing so, the [seller] plausibly explained the
incorrectness of the origin of the goods, which consisted either already in the
contractual agreement about goods stemming from England, or at the latest in
the delivery of a false Certificate of Origin. It would have been the task of
the [buyer] to contradict this explanation (Baumgärtel/Laumen, Handbuch der
Beweislast im Privatrecht, Bd. 1, 2nd edition, § 123 BGB, n. 13).
f) Thus the [buyer]
did not substantially submit a tortious act by the [seller]. Contrary to the
[buyer]'s opinion, the
Court of Appeals consequently did not have to examine
whether the [buyer] was entitled to refuse payment of the purchase price under
the aspect of damages from tort under German or Dutch domestic law.
3. Also without merit is the appeal's objection that [buyer] was
at least entitled to exercise a right of retention according to Art. 58(1)
CISG. According to this provision, the buyer is only bound to pay the purchase
price when the seller places the goods or the documents controlling their
disposition at the buyer's disposal. Documents in this sense are mainly the
so-called true transfer documents, besides this, also similar documents
granting the buyer a right of disposition to the goods and excluding the seller
from same (cf. Schlechtriem/Haager, op. cit., Art. 58, n. 10). Among
these are in particular the Warehouse Receipt, but not the Certificate of
Origin or of Quality: their tender is normally neither necessary nor sufficient
to found the maturity of the purchase price (cf. Staudinger/Magnus, op.
cit., Art. 58, n. 21). The [buyer] never pleaded in the course of the trial
phase that the [seller] was not able and willing to turn over the Warehouse
Receipt against concurrent payment of the purchase price. The [buyer]'s
assertion that the goods were no longer available was apparently made without
any actual basis; the [buyer], and also the hired expert, could have
ascertained the existence of the goods by inspecting them at any time. Whether
the [buyer] would have been entitled to retain the payment of the purchase
price because of the initially incomplete documents or the false EEC
Certificate of Origin, even though the payment clause "cash against
documents," respectively CAD was agreed, does not have to be decided. At
any rate, such a right of retention would have ceased to exist prior to the end
of the trial phase. The [buyer] received the correct Certificate of Analysis
with the expert's report. The [buyer] itself would have been able to obtain
the correct Certificate of Origin at the latest after the issue of the origin
of the goods was resolved.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff's assignor of Netherlands 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: aliud [supplying
totally different goods = no delivery] vs. peius [supplying non-conforming
goods = delivery] is a concept that has had a certain significance in internal
German sales law, as partially explained in the Court's opinion; BGB = Bürgerliches
Gesetzbuch [German Civil Code]; NJW = Neue Juristische Wochenschrift
[German law journal]; RIW = Recht der Internationalen Wirtschaft [German
law journal].
** Peter Feuerstein is an International Legal Consultant. He conducted his
post graduate research at Cambridge University, England, where he studied at Clare College in preparation of his Doctoral Dissertation. He received his
Dr. jur. from Philipps-Univeristy of Marburg, Hessia, Germany, in 1977.
*** Ruth M. Janal, LL.M. (UNSW) is a Phd candidate at Albert-Ludwig-Universität Freiburg.
Case text (English translation)
German Federal Supreme Court 3 April 1996
Pace Law School Institute of International Commercial Law - Last updated November 15, 2007