Automobile case Oberlandesgericht Naumburg 27 April 1999 Translation [*] by Jarno Vanto [**] Translation edited by Ruth M.

Janal [***] GROUNDS FOR THE DECISION The claim is admissible in terms of its form and the time it was submitted. The [seller]'s appeal was not successful. The [seller] is not entitled to damages according to Art. 75 in connection with Arts. 64(1)(b), 63 CISG. The CISG is applicable to the dispute. According to Article 1(1)(a) of the CISG, the Convention is applicable when the parties have their places of business in [different] Contracting States. Both Germany and Denmark are Contracting States. Therefore the CISG takes precedence over the German Civil Code. The [seller] cannot recover the difference of Dkr [Danish krona] 16,800 between the contract price and the price it reached in its substitute transaction, because the [buyer] rightfully declared the contract avoided under Art. 49(1)(b) CISG. 1. In [buyer]'s written communication of 26 January 1997, the [buyer] had issued an offer to the [seller] (Art. 14(1) CISG). The time of delivery was set at "no later than 15 March 1997". On 29 January 1997, the [seller] accepted this offer (Art. 18(1), sentence one, CISG) even though with regard to the time of the delivery the [seller] had given a different delivery date. The time of delivery was named by the [seller] as "April, time of delivery remains reserved". An acceptance that contains alterations is generally regarded as a counter-offer that constitutes a rejection of the offer (Art. 19(1) CISG). However, this reply did not materially alter the terms of the offer, especially since it did not regard the goods sold [" (…) da die Abweichung die Bedingungen des Angebots aber nicht wesentlich ändert, insbesondere der Gegenstand des Kaufvertrages dadurch nicht betroffen wird (…)]. It would therefore have been up to the [buyer] to object to the reply (Art. 19(2) CISG). Such an objection has undisputedly not taken place here. The alteration has thus became part of the contract. On the other hand, the alteration does not bring forward a fixed date for delivery and because the stipulated delivery period was qualified as "reserved", the date is not determinable from the contract (Art. 33 (a) CISG). Thus the delivery was to be effected within a reasonable time after the conclusion of the contract (Art. 33(c) CISG). The contract was concluded with the receipt of [seller]'s acceptance on 29 January 1997. While the [buyer]'s request for delivery no later than 15 March 1997 did not become part of the contract, it has to be considered in determining the reasonable time for performance under Art. 33(c) CISG. Because it was clearly important to the [buyer] that the delivery take place within this time frame (29 January 1997 - 15 March 1997), the [seller] would have had to deliver by that date in order to have delivered within a reasonable time.

It is irrelevant whether delivery delays of two to four weeks are common in the international sale of vehicles. When determining a reasonable time for delivery, it is of the essence to consider the statements of the parties and the concrete contractual circumstances. A delivery by 15 May or 3 June would no longer have been reasonable. 2. The rights of the buyer are determined on the basis of Art. 45 et seq. of the CISG. The buyer may declare the contract avoided in case of a non-delivery when the seller does not deliver the goods within the additional time frame set by the buyer (Art. 49(1)(b) CISG). While Article 47(1) only states that the buyer may fix an additional period of time of reasonable length for the performance by the seller, the setting of the time frame is a prerequisite for avoiding the contract. (Staudinger / Magnus BGB, 13. Bearbeitung 1994 - Art. 47 CISG, margin note 2). According to the hearing of evidence, the [buyer], represented by witness R., on 16 March 1997 and on 21 March 1997 orally fixed an additional period of time for performance by the [seller] until 24 March 1997 by the latest. The testimony of the witness is credible. It does not speak against the witnesses' credibility that he is related to the director of [buyer]'s firm and that he may have an economic interest in the case as an employee. The witness unambiguously confirmed that he called the [seller]'s managing director on the dates named and requested delivery within the period given. As to the fact that 16 March 1997 was a Sunday, he convincingly explained how he managed to reach the [seller]'s manager on the phone. The Court does not need to decide whether the additional period of time set by the [buyer] until 24 March 1997 was too short, as in that instance a reasonable period of time would have started to run. Such a reasonable period of time would have elapsed at the latest by 11 April 1997, the day on which the [buyer] sent a further communication to the [seller]. The hearing of evidence confirmed that the [buyer] sent this further written communication on 11 April 1997. While Witness R could not provide information as to the concrete content of the communication and whether it had been sent on 11 April 1997, Witness K credibly testified that the letter was sent to the [seller] on that very day. She convincingly explained why she remembered facts that happened over two years ago. She further testified that according to [buyer]'s post outbox records the said documents had in fact been sent on that day. There is no reason to doubt the credibility of Witness K. The fact that she is employed by the [buyer] casts no shadow on its credibility. In its written communication of 11 April 1997, the [buyer] declared the contract avoided (Art. 49(1) CISG). It is irrelevant whether the [seller] received this letter. Contrary to § 130 of the German Civil Code, the buyer only needs to prove the sending, not the arrival of a communication under Art. 27 CISG. The sender may rely on the original content of its communication as long as it sent the notice by means appropriate in the circumstances, even if it reaches the addressee too late, altered or not at all (Staudinger a.a.O. Art. 27 CISG, margin note 20). Because the [buyer] validly declared the contract avoided, the [seller] is not entitled to reimbursement of its losses. A claim for damages under Art. 74 et seq. CISG requires a breach of contract by the other party (v. Caemmerer / Schlechtriem, 2d ed., Art. 74, margin note 26). This, in any case, has not been committed by the [buyer], as it rightfully declared the contract avoided. The appeal thus was denied.

The division of expenses is determined on the basis of § 97 of the German Code of Civil Procedure (ZPO). The interim enforceability of the judgment is based on the Code of Civil Procedure.

Mixing Machines case

Supreme Court ( Legfelsõ bb Biróság) of Hungary 2000 [no exact date provided] [Legf. Bir. Gfl.30.299/2000] Translation [*] by Tamás Szabados [**] Edited by Andrea Vincze [***] In its judgment, the Court of First Instance obliged the Defendant [Buyer] to pay to the Plaintiff [Seller], within fifteen days, Deutsche Mark [DM] 171,926 with 6% interest for the period between 1 November 1995 and the actual payment, as well as the costs of the proceedings. According to the facts of the case, after the [Seller]'s offer was made on 15 July 1994, the modified offer of 1 August 1995 was accepted by the [Buyer]. Consequently, a delivery contract in foreign commerce was concluded between the parties. The parties did not determine the exact time of delivery, but the offer of 15 July 1994 indicates a six-month delivery period calculated from clarification of technical and price issues. The price in the [Seller]'s offer of 1 August 1995, which was accepted by the [Buyer] without a formal confirmation, was DM 804,828 with a deadline for payment determined in the invoice. On 24 February 1995, the [Seller] delivered the ordered machine for the [Buyer] who took it over but did not pay DM 124,707 from the purchase price. Moreover, neither was DM 11,692.98 as the price of the mixing machine paid off. Additionally, the [Seller] obtained by assignment a receivable of another company aounting to DM 47,218.73 against the [Buyer]. The total amount of the latter is DM 171,926. The Court of First Instance rejected the [Buyer]'s arguments, according to which a delay on the part of the [Seller] resulted in significant damage because of the devaluation of the Hungarian forint [HuF] in March 1995. The [Buyer] concluded the contract with the [Seller] on behalf of a third party, and it is not established that the [Buyer] did not receive the consideration specified in the invoice from its principal. Furthermore, a claim for damages cannot be enforced also because in February 1994 when the machines were taken over, the [Buyer] did not did not make a statement for reservation of its rights. The [Buyer] appealed against the judgment asking for its partial alteration and rejection of the [Seller] claim with respect to the purchase price of DM 124,707. The [Buyer] alleged that, compared to the offer of 15 July 1994, the [Seller] performed its obligation with delay, because having accepted the six-month deadline, the performance on 24 February 1995 was late. That is, the [Seller]'s performance did not conform to the contract. Therefore, the change of the exchange rate in March 1995 affected the [Buyer]

The parties agreed on the price according to the order confirmation of 1 August 1994.unfavorably. in the instant case the UN Convention on Contracts for the International Sale of Goods of 1980 (CISG) promulgated in Hungary by Law Decree 20 of 1987. therefore. or in any other case. The parties determined the purchase price in DM." the end of 1995 in the order confirmation of 1 August 1994 which was accepted by the [Buyer] through implied conduct (Article 18 CISG). The [Seller] performed its contractual obligation on 22 February 1995. Based on the available documents. Pursuant to Article 74 CISG. should have been proved by the [Buyer] [Section 164(1) Civil Procedure Act]. when the [Buyer] took over the machines without any objection or reservation of any right. the [Seller] did not have to expect that the DM exchange rate might develop unfavorably for the [Buyer]. In contrast with the [Buyer]'s view. The fact that the [Buyer] did not refer to delay on delivery (see delivery minutes of 22 February 1995) and that it did not demand performance in writing in January 1995. the [Buyer] could not claim damages deriving from the latter even if late performance is . Within the meaning of Article 33 CISG. it can be established that the performance of the contract was undertaken by the [Seller] until "approx.e. In its cross-appeal. such an indication can be considered neither as a fixed date nor a fixed period of time from which the seller could not depart in a way to be still able to perform within a reasonable time after such date of period of time. six months can by no means be calculated from 15 July 1994. at any time within that period unless circumstances indicate that the buyer is to choose a date. that is. Pursuant to Article 33 CISG. The Court of First Instance ruled correctly that. non-conforming and late performance by [Seller]. the seller's law is applicable. shows that the [Seller]'s performance on 22 February 1995 was considered by the [Buyer] as having been carried out within a reasonable time and conforming to the contract. in the light of the facts and matters of which he then knew or ought to have known. i. thus the approx. as a possible consequence of the breach of contract.. on that date. HOLDING The [Buyer]'s appeal is unfounded. since the purchase price provided was insufficient to pay off the purchase price agreed upon with the [Seller]. within a reasonable time after the conclusion of the contract. based on Section 25 of the Private International Law Act (Law Decree 13 of 1979). Unless otherwise agreed/provided for. the [Seller] asked for the approval of the judgment of the First Instance. commencement of the approximately six-month period indicated in the offer made on 15 July 1994 depended on the date of the clarifying of all techical and price issues. if a date is fixed by or determinable from the contract. the seller must deliver the goods. damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract. based on the order confirmation of 1 August 1994. The default of the [Seller]. if a period of time is fixed by or determinable from the contract.

the unchallenged part of the judgment of the Court of First Instance remains unaffected. the 12th Commercial Chamber of the District Court (Landgericht) München I. Presiding Judge Dr. [Seller]'s claim is dismissed in all other respects. Furniture case District Court (Landgericht) München 6 April 2000 [12 HKO 4174/99] Translation [*] by Stefan Kuhm [**] Translation edited by Ruth M. and its challenged part was approved by the Court of Second Instance based on section 253(2) of the Civil Procedure Act.proved. rules as follows with regard to the Court's hearing of 3 February 2000: 1. . Consequently.70 plus accrued interest of 5% since 27 February 1998. Claims by the [Buyer] are preliminarily enforceable without provision of a security deposit. 3.707 from the purchase price against the [Seller]. the [Buyer] was not entitled to retain DM 124.750 as security deposit. [buyer] as Defendant. unless [buyer] provides for a security deposit in the same amount before she commences to enforce its claims under this judgment. In addition. as shown in detail above. 2. [Seller] may prevent the commencement of enforcement proceedings by [buyer] against provision of DM 900 as security deposit. With regard to the merits above. the [Buyer] also failed to show the exact amount of the alleged damage in detail. The costs of these legal proceedings shall be borne 2/5 by [seller] and 3/5 by [buyer].729. the [Buyer] must settle this with its principal provided that the conditions for such settlement are fulfilled. The [buyer] is directed to pay [seller] the principal amount of DM [Deutsche Mark] 15. If the [Buyer] suffered damages due to fluctuation of the exchange rate. Claims by the [Seller] are preliminarily enforceable against the provision of DM 18. Janal [***] JUDGMENT In consideration of the legal dispute arisen out of a claim for payment between the [seller] as Plaintiff v. Bachmann and Commercial Judges Dr. Bauer and Saur. 4. The [Buyer] did not dispute that the [Seller] had issued its invoices on the dates indicated in the lawsuit and that those had been taken over by the [Buyer].

32 Par. [Seller's pleading] After [seller] has already reduced the amount claimed for in an amount of DM 2. [seller]'s claim has been reduced to DM 15. [References made by the Court] As to all other respects. within this legal action. Italian law is applicable in relation to this set-off (Art. The parties are in dispute as to the basis and amount of [seller]'s claim for payment of the purchase price. 1. 28 Par.572. REASONING OF THE COURT [Seller]'s legal action is admissible and mainly justified. 1 No.48. [Seller] has not objected to the facts . The provisions set out in the EuGVÜ [*] have only enshrined the principle of necessary connection with regard to a defendant's counterclaim. 1243 Par. the Court refers to the parties' submissions. 1 Cc [*] are complied with. [Buyer's pleading and submission] [Buyer] asks the Court to dismiss [seller]'s action.000. Therefore. it asks the Court to direct [buyer] to pay [seller] the principal amount of DM 24. 4 EGBGB [*]) because [seller]'s claim for payment of the purchase price is also governed by Italian law (Art.30 since 19 December 1997 and on DM 21. [Buyer] is entitled to claim damages in an overall amount ofDM 8.729. This fact does not lead to the lack of jurisdiction and competence of the Court to hear this action.842.70 due to [buyer]'s declared set-off with its claimed damages. hence the Court has the power to decide upon the counterclaim too.900. [Seller] claims payment of the purchase price for delivered furniture as further specified in two invoices. 2 EGBGB [*]).671. particulars and their schedules. [buyer] sets-off against [seller]'s claim several claims for damages under separate sales contracts concerning the delivery of furniture. The setoff declared by [buyer] is not directly regulated pursuant to any provision as to the question whether a German court or any foreign court may have jurisdiction to hear these proceedings.FACTS OF THE CASE [Summary of undisputed facts] [Seller] delivered to [buyer] furniture on several occasions between 1995 and 1998.18 and accrued interest of 12% on DM 2. All pre-requisites under Art. Additionally.88 since 23 December 1997. [Jurisdiction of the Court over buyer's set-off claims] It is irrelevant that the declared set-off by [buyer] does not stem from the same sales contract and is not based on the equivalent circumstances as [seller]'s claim within these proceedings.

The compensation for the damages [buyer] suffered encompasses the difference between the purchase price under the sales contract concluded with the [seller] and the purchase price that [buyer] had to pay under the second sales contract for replacement of the furniture. [seller] was not entitled to reschedule the delivery of the furniture. [Seller] was not empowered to unilaterally alter such a trading practice between the parties by declaring the delivery of the furniture dependent on the successful crediting of the cheque to its account. Thereby. because [seller] did not deliver furniture in a material mix and combination in compliance with the terms set out in their sales contract. the [buyer] was entitled to declare the avoidance of the sales contract here in question (see Arts. 49 CISG). there were not any additional caveats as to the [buyer]'s creditworthiness. 71 CISG). [buyer] had always discharged its payment liability in advance by providing the respective carrier of the goods with a cheque. 75 CISG). 33a. because [seller] did not deliver the furniture at the date specified in the sales contract and such a nonperformance is deemed a fundamental breach of contract (Art. there were no indications brought forward that [buyer] would not fulfil its duty to pay the purchase price (Art. 49(1)(a). [buyer] proceeded to perform its duty to pay the purchase price pursuant to Art. As a result. [Parties' agreement as to a reduction of the purchase price] Thereafter. [seller] usually delivered the sold furniture prior to the crediting of that cheque. 74. It was the customary practice of the parties that. the parties agreed to a reduction of the purchase price. [Claim for damages due to buyer's loss through buyer's replacement transaction] Since [buyer] bought furniture in replacement of the originally sold goods after [buyer]'s declaration of avoidance of the sales contract. 71(3) second clause. The [seller] was not entitled to suspend the delivery of the sold furniture (Art. Although [buyer] actually had its cheque stopped. There was no indication whatsoever that the [buyer] lacked financial standing. on the one side. 71(1)(b) CISG). in that it had a cheque delivered to [seller] drawn upon an amount reflecting the reduced purchase price. [Specification of buyer's counterclaim as set-off] [Buyer] has a counterclaim for damages against the [seller].underlying the counterclaim by bringing forward as necessary [seller]'s own submission of facts. which might have justified such an extraordinary alteration of their trading practice. [buyer] was not even in default with regard to its payment duty. was not entitled to postpone the delivery of the sold furniture unilaterally until that cheque was credited to its bank account. 71(1) CISG). Further. it is paramount that [buyer] was not in arrears to pay the . however. [Seller]. Particularly. For this reason. On the other side. [Seller] only raised legal objections. [buyer] has the right to claim damages. Therefore. After the parties had entered into their sales contract. [seller] did not meet its duty to deliver fully compliant goods (Art. [Reason for buyer's right to suspend payment] [Buyer] had the right to stop payment of its cheque and to temporarily refuse the payment of the purchase price (Art. 35(1) CISG).

962.400 although it would have only made a profit of DM 4. i. It has not been disputed by the parties that the wardrobe had been already been previously collected from the [buyer]'s customer by a forwarding agent acting on behalf of [seller]. [Buyer's claim for costs of repair] Under Art. so that [buyer] did not suffer any loss of profit.200.purchase price under the sales contract here in question (Art.200 if the sales contract in question had been satisfactorily performed by [seller]. This difference in the price level was mainly caused by the higher acquisition and production costs to get the equivalent furniture in replacement of the goods originally purchased from the [seller]. [buyer] would attain a profit of DM 8.. Thereby. i. there was a defect of fabrication or material which went fundamentally beyond the defect initially reprimanded by [buyer]'s customer. 49(1) CISG). If [seller] paid damages as claimed for in an amount of DM 10. since this is one of the admissible positions of . a matter of fact to which [seller] has not objected during the proceeding.378 with the aforementioned customer. For this reason. In its note of 27 June 1997.700 including the additionally received purchase price under its re-sale contract of DM 10.762 in damages. one has to appreciate that the [buyer]'s claim for damages is inflated in an amount of DM 4. Thereafter. The Court concludes from that note the fact that [buyer] and [seller] entered into a corresponding agreement about a subsequent repair of that wardrobe. 45(1)(b) CISG.300.e.. [Buyer] notified [seller] in [buyer]'s letter of 27 June 1997 that [buyer] was not able to repair this wardrobe on its own. In consideration of this difference. 75 CISG). In this case. The damages that occurred merely comprise the price of the substitute furniture which was more expensive than under the parties' original sales contract. [buyer] would receive an aggregate amount of DM 21. [Buyer's notice of lack of compliance of the goods] [Buyer] gave notice of the lack of compliance of the delivered goods within reasonable time (Art. [Failure to establish claim for damages due to loss of profit] Nevertheless. This amount might then be opposed to production costs of DM 13. [Buyer] gave timely notice to [seller] about the lack of conformity. a handwritten note was added restating the notification of the successful repair of this piece of furniture by a repairer acting on [buyer]'s order and behalf. [Buyer]'s customer paid the whole purchase price agreed to. [Buyer's right to set off with another counterclaim for damages] [Buyer] is authorized to set-off another outstanding claim against the [seller]'s claim in an amount of DM 595. This pecuniary difference amounts to DM 6. [Buyer] was particularly obliged to seek such a replacement in order to meet [buyer]'s delivery duties under re-sale contracts with [buyer]'s customer. [buyer] is at least entitled to claim compensation for [buyer]'s expenses to have that wardrobe repaired. This amount is based on the direct delivery of a defective wardrobe to [buyer]'s customer.e. this material or production failure cannot be deemed a pure consequence of the aforementioned protrusion. the firm Katharina Rausch Interior Decoration. [buyer] cannot claim compensation for loss of profit because it did not incur such a loss. protrusion of an edge of the respective furniture.

which [buyer] did not object to. 150 Par. the subsequent recovery of their sales contract might then have led to much higher costs for [seller] than the reparation of the wardrobe at the place of delivery. However. [Buyer] bore the duty to refuse [seller]'s new offer after [seller] had not confirmed the prior date for the delivery of the goods which [buyer] requested. [No claim for loss of profits with regard to another re-sale contract] The [buyer] may not recover damages from the sales contract regarding the goods to be delivered to [buyer]'s customer XXX & Partner.before the confirmation of order was sent to the [buyer]. The delivery date named in the [buyer]'s order. [Seller] has denied neither the existence nor the amount of [buyer]'s claim. However. [buyer] could have declared the avoidance of the sales contract or demanded repair of the defect by the [seller]." in comparison to [buyer]'s debiting note. [Seller] thus made a new offer [counter-offer] as to the terms of entering into a sales contract (see Sec. However. named 20 September 1997 as the date of dispatch and therefore materially differed from the [buyer]'s offer. In particular. No. [Buyer] claims compensation for loss of profit.claimed damages. 2 BGB [*]). [Buyer] suffered a loss of profit because its customer cancelled a contract with the [buyer]. but solely argues that [seller] had credited [buyer]'s account with the respective amount and assigned the sum. but damages for nonperformance. however. This is a loss caused by culpable delay.485. that is not "ancillary damage". In fact. the [buyer] concurrently and implicitly accepted the [seller]'s offer. By holding on to the order and continuously requesting the [seller] to effect an expeditious delivery.according to trade usage and the parties' practices -. [buyer] also cannot claim damages. [buyer] was only in the position to claim compensation for such a loss incurred after [buyer] had declared the avoidance of its sales contract with . the contract was formed with the content of [seller]'s confirmation of order. [No claims for damages due to lack of declaration of avoidance of contract] With regard to the order for [buyer]'s customer Interior Decoration Store XXX. The contract was not formed -. namely the end of the 27th calendar week. Hence. The confirmation of order. For this reason. in particular. which could have been more of a hardship for the [seller]. Since the [buyer] held on to [seller]'s delivery obligation. [Buyer's right to set off with buyer's claim under a debiting note] [Buyer] has additionally the right to set-off a claim of DM 1. but solely asked [seller] for a confirmation of 3 July 1997 as the agreed date of taking delivery of the goods.48 under [buyer]'s debiting note of 5 July 1995 against [seller]'s claim for payment of the purchase price. Any prior confirmations of the delivery time stipulated by the [buyer]'s offer are consequently not to be considered binding. [buyer] did not have the right to ask for such a confirmation. was not agreed between the [buyer] and the [seller]. [Seller] would all the more have been obliged to give such details and facts. the [seller] failed to submit facts to prove this assertion. because [seller] submitted crediting note states differing amounts and "Com. [buyer] accepted in particular to enter into a sales contract based on distinguished terms concerning the date for delivery of the goods. as no contract had as yet been concluded. [seller] has not submitted any receipt for such a transfer of this amount of money. [seller] was not under any duty to effect delivery of the goods before 20 September 1997.

[buyer] has lost its right to declare the sales contract avoided (Art. [buyer] cannot claim compensation for any suffered loss of profits. independently from a declaration of avoidance of the sales contract (Art. 45(1)(b) CISG). i. the actual delivery took place in June 1995 and thus any rights under this sales contracted have been forfeited. 1 and 2 EGBGB [*]). the period is one year when a right is deemed forfeited.[seller]. i. [buyer] seeks (i) for restitution of their sales contract. [buyer] did not declare it within a reasonable period of time after the actual delivery of the goods. Art.. Art. 74 CISG only contains a definition of what can be demanded in cases in which the basis for a damages claim is provided.. This is again a claim for damages due to [seller]'s nonperformance of its duties. [Buyer failed to declare avoidance of contract within a reasonable time] Even if the declaration of a set-off against claims for damages may be interpreted as an implicit declaration of the avoidance of the underlying sales contract. The establishment of such an action required [buyer]'s declaration of avoidance of the sales contract as mentioned above. [buyer]'s claim is not concerned with the restitution of the sales contract (Art. all provisions of the CISG dealing with the pre-requisites for a declaration of the avoidance of a sales contract thereunder would be superfluous (Art. 45. However. For this reason. 28 Par. 75 and 76 CISG which also require the avoidance of contract for the compensation of damages for non-performance. Then. Such a claim has been forfeited and is time-barred. the declaration of avoidance. In opposition. In this case. Note 41a). [Buyer]'s claim does not qualify as a claim coming into existence after the actual exercise of the unilateral right to alter the legal relationship between a buyer and the seller. [buyer] has not made such a necessary declaration. But.. Insofar as such a declaration has been implicitly made . 49(2)(a) CISG). According to Art. Italian law is the governing law as to this legal issue (Art. one may claim compensation for any loss of profits incurred through the delivery of non-complying goods. redemption of the already paid purchase price. This period commences at the physical and actual delivery and hand-over of the respective goods. 45(1)(b) CISG. and (ii) for compensation of [buyer]'s loss of profits. [buyer] has yet not declared the avoidance of that sales contract. i.e. time-barred. [Buyer] is not entitled to claim restitution of the already paid purchase price as well as compensation for an incurred loss of profit in respect of a non-performed re-sale of the acquired goods solely based on Art. The CISG does not contain any provisions dealing with prescription or a statute of limitations. 81(2) CISG). 49(1) CISG). 1495(2) Cc [*].e. Otherwise. [Buyer] was obliged to first declare the avoidance of the sales contract (see Schlechtriem/Kober [*]. Such a claim is not a "warranty claim". [Failure to establish an additional counterclaim for damages due to not timely declaration of avoidance] [Buyer] does also not have the right to claim damages with regard to [buyer]'s submission that [seller] did not take delivery of a chair being in its possession for subsequent removal of defects. Henceforth. [Time-barred forfeiture of buyer's warranty claim in respect of another re-sale contract] In contemplation of the delivery of a dining table to the [buyer]'s customer XXX & XXX GmbH [*].e. The same applies to Arts.

Furthermore . [Rate of interest owed by the buyer] The rate of interest on the sum in arrears comes to 5% p. if it did not act in accordance with his liabilities thereunder.572. 1284 Cc [*]). Only if that were the case.70. however. [buyer] made it quite obvious that it was not willing to pay the purchase price anymore. 71 CISG). would [buyer] have been entitled to declare the avoidance of this sales contract. Dr. [Ancillary decisions held by the Court] The Court's decision on the costs for these legal proceedings is based on Secs. And most importantly. Bauer. 78 CISG. 74 CISG. 709 and Sec. The [seller] did not submit any facts demonstrating such a loss. Consequently. this overdraft would have had to be repaid with all incoming cash flow under his trade receivables. [buyer] cannot make a case for [buyer]'s claimed damages on that ground. Art. On that day. [Seller] could only claim for payment of an overdraft interest rate if it had established to conduct its business while permanently using an overdraft facility. It is only in such a case that a loss in the meaning of Art. 1. For this reason. Saur . Nevertheless. [Succession of seller's legal action in contemplation of buyer's counterclaims] In consideration of all aforementioned [buyer]'s counterclaims. (Art. [Buyer] has been in arrears with regard to this claim since 27 February 1998 (Art.18. might one establish a claim for compensation of damages beyond the statutory default interest rate pursuant to Art. [seller] could assume from that moment that [buyer] might lose any advantages under their sales contract. 49(1)(b) and Art. Dr. this overdraft had to extend its claim within these proceedings while [buyer] was in default. Only after the lapse of that additional period of grace. [buyer] was at that time entitled to suspend its payment by cheque (Art. which exceeds the legal damage for delay. The sole non-delivery of a chair is not a fundamental breach of contract (Art. 263 Par. 74 CISG.through [buyer]'s declaration of a set off.a. [buyer] would have been obliged to fix an additional and final period of grace (Art.the credit has to be repaid by all of the payments received by the [seller] unless such payments must be used immediately for the interest owed on the credit. Bachmann.729. [Buyer] reprimanded [seller] for the last time to have this repaired chair recovered in [buyer]'s letter of 27 June 1996. exists. unless those cash flows were appropriated to redeem any accrued interest. As explained above. 708 No. [seller]'s legal action succeeded and was founded in an amount of DM 15. The decision on the preliminary enforcement ensues from Sec. demonstrated any facts as to the aforementioned ingredients to establish such a claim beyond the statutory default interest rate. 3 ZPO [*]. 47(1) CISG). [Seller] has not. A claim for compensation of interest for drawn credit would require that the [seller] conduct its business with an ongoing bank credit which exceeds the sum claimed during the time the payment was in arrears. [buyer] stopped payment on [buyer]'s cheque drawn in favor of the [seller] to pay the purchase price in an amount of DM 24. Further. Therewith. [buyer] was not in default at the moment when it received [seller]'s invoices. 59 CISG). 11 ZPO [*]. 25 CISG). 92 Par.and this is decisive .

Italy.. [seller]. (hereinafter: Vieffe). Pagan.10% of cotton Ne 12/1 for £IT 5. Adriafil Commercial S. 69.l.5.510 / kg. The same day.000 kg +/. Clerk of the Court: Ramelet. payment to be made by letter of credit due sixty days after the date of customs clearance. Corboz. Walter. Lawyer in Geneva. [buyer]. 94-52/ CY-EG concerning the sale of: . Vieffe sent to [seller] a new proposal. In a matter of: International sale of goods A. Substitute Judge.10% of cotton Ne 16/1 for £IT 5. located at Milan.460 / kg. a company under Italian law.5.105/2000] Translation [*] by Alban Renaud [**] Translation edited by Claude Witz and Julia Eisengräber [***] COURT COMPOSITION: M.l. On 14 April 1994.5. represented by Me Le Houelleur. . of Geneva.10% of cotton Ne 30/1 for £IT 5. of Rimini. . Defendant and Appellant. goods to which the quality and place of delivery had been specified. Lawyer in Geneva.10% of cotton Ne 8/1 for £IT 5.000 kg +/. Vieffe S.r. On 2 March 1994. Italy. The contract stipulated that the loading of the goods must take place in a harbor in Egypt during the month of May 1994.. [seller] and [buyer] signed Contract No. Judge.r.000 kg +/. PARTIES and COUNSEL: FCF S. Italy. Claimant and Appellee.460 / kg [£IT = Italian Lira].5. Switzerland. [seller] and [buyer] signed Contract No. concerning the purchase by [buyer] of twenty tons of cotton thread with delivery at the end of August. 94-36/CY-EG concerning the sale of: . payment due sixty days after customs clearance.A. President. sent.460 / kg.M. . to [seller]. represented by Me Michel Amaudruz. The goods were to be delivered between 25 May and 5 June 1994.Egyptian Cotton Case preme Court of Switzerland (Bundesgericht) 1st Civil Court Division 15 September 2000 [4C. Order No. [Background facts] a) Intervening for the [buyer]. on 15 February 1994. 28 concerning the purchase by [buyer] of four times five tonnes of cotton. a proposal of Order No. v. a Swiss company for which Vieffe was an agent.000 kg +/. an Italian company with its registered office in Rimini.

after the delay taken by the [seller]. the damages for which it would be asking reparation would have been more significant. [buyer] invited [seller] to perform the contract as soon as possible.000 and asked for compensation by [seller]. On 30 June 1994. On 2 May. Receiving no answer to this letter. b) On 27 April 1994.745 kg and 6.500 kg +/. 5. After having explained that this had the consequence of limiting [buyer's] ability to fulfil its own contractual obligations.357 kg and 5.10% of cotton Ne 20/1 for £IT 5.790 / kg for the cotton Ne 8/1. and unloaded at . .000 kg +/.5. [buyer] informed [seller] on 27 June 1994 that. quantities of 6.085 kg of cotton Ne 8/1 were loaded at Alexandria by [seller].500 kg +/. the total quantity of the goods contained in the two contracts.10% of cotton Ne 12/1 for £IT 5. [Buyer] noted that if it had waited for an answer from [seller] before purchasing substitute goods from other suppliers.450 / kg. [buyer] was surprised to be informed that. [seller] sent to [buyer] a second message asking [buyer] to accept and confirm the increase of prices decided by the contract of 2 March by 6%. both the agreement of 2 March and that of 14 April 1994 would not be respected. The total goods included in the order were according to these two contracts. [buyer] wrote to [seller] that it had taken note that [seller] was ready to deliver during the month of July. The loading was planned for the month of August 1994..10% of cotton Ne 30/1 for £IT 6. However. On 23 July 1994.5% and 9% and that [buyer] was obliged to pay an increase of 8% in the price of sale. [buyer] stated that it could not accept the delivery of cotton contained in the contract of 2 March 1994 for the reasons explained in [buyer's] letter of 27 June 1994. . raw".000. . [buyer] valued its damages at £IT 100. 12/1 and 16/1 and £IT 5. Insistent especially upon the damage caused to its reputation. but an incentive for the [seller] to execute its obligations. [Buyer] accepted the increase of 6%. .450 / kg. and that [buyer] was happy with this result as far as the contract of 14 April 1994 was concerned.D.450 / kg. Vieffe informed [buyer] that the "thread" contained in the contract of 2 March 1994 could be delivered during the month of July 1994 against payment by letter of credit due in sixty days.850 / kg.2. [Buyer's] written document of 27 June 1994 was not a letter of cancellation from the [buyer].57 non parafiné. payment due in sixty days.697 kg of cotton Ne 16/1 and also 6. c) On 3 June 1994.2. "cotton GIZA 75 on cone with Q. which represented £IT 5.450 / kg.10% of cotton Ne 16/1 for £IT 5.840 / kg for the cotton Ne 30/1.R. concerning the goods of the contract of 2 March 1994.000 kg +/.5.5. On 8 July 1994. [seller] sent an acknowledgement by fax to [buyer] advising that the Egyptian authorities had imposed on the weaving mill of the country an increase in the price of cotton between 8.000 kg +/. [Buyer] also asked to be informed exactly which goods would be delivered and reserved the possibility of legal action in case of nonperformance.10% of cotton Ne 8/1 for £IT 5. [buyer] was forced to purchase substitute goods from other suppliers at a more expensive price.

137.800. first.803 kg that was missing was therefore £IT 81.148 / kg.126).492 / kg in comparison with the increased price of this contract of £IT 6.000. claiming the payment of Sf [Swiss francs] 238.000 (4.527. On 5 December.720 plus interest at the rate of 5% from 5 December 1994. The increase of the cost represented £IT 7.800 / kg. In the purchase made on 7 July 1994. were ordered on 7 July and 30 August. 35.000.Genoa on 7 August 1994.803 kg less of what was decided in the contracts. partly quashing the judgment of the Court of First Instance [District Court of Geneva] on 20 May 1999. making a profit of £IT 17. 4. the parties had not established contact in relation to the delivery of cotton. [buyer] ordered elsewhere 47.651. [buyer] notified [seller] that it would commence a lawsuit.803 kg x £IT 17. it brought an action against [seller]. and. that the loss claimed was neither justified nor proven. which related to the contract of 2 March.142. [Buyer] resold 31. there was a difference of £IT 700 per kg in comparison with the price fixed after the increase of 6% at £IT 5.500 / kg. for £IT 52.000.000 and commercial damage of £IT10. The loss caused by the 4. [Buyer] claimed against the [seller] that [seller] had breached its contractual obligations by not delivering the cotton included in the contracts of 2 March and 14 April 1994. and second. By judgment on 18 February 2000. These goods corresponded little to the goods described in the contract of 14 April 1994.197 kg x £IT 700). and ordered the withdrawal.983.000 kg. [buyer] claimed from [seller].000. The [seller] replied that the [buyer] had unilaterally cancelled the contracts and.243 kg of cotton of several categories to replace the undelivered cotton ordered from [seller]. for 25.197 kg of the same quality cotton ordered in the earlier contracts concluded with [seller]. which related to the contract of 14 April 1994.840. it ordered [seller] to pay to [buyer] Sf 95.60 (£IT 294.000 / kg. additionally. thus. After 7 August. on 5 April 1995. the payment of the sum of £IT 334. [Buyer] was able to acquire 35. d) Between 31 May 1994 and 30 August 1994.000 in comparison with the purchase of 20 tons of cotton stipulated in the previous contract (20. caused [buyer] a loss of profit of £IT 104.898. [First Instance and Appellate Court proceedings] Founded on the fact that no quantity of cotton had been delivered. on 21 October 1994. . ruled on an appeal made by the [seller]. In the purchase concluded on 30 August 1994.000). of 10.000 kg x £IT 1.126 in the price. forced the [buyer] to purchase replacement goods with an increase of £IT 127. and to indemnify [buyer's] clients.197 kg of cotton at an average price of £IT 6. there was a difference of £IT 1. conduct which. the Appellate Court of the Canton of Geneva.000 kg of cotton at an average price of £IT 7. [buyer] paid an extra £IT 29.197 kg of replacement cotton of the same quality.900 (10.640 / kg. Therefore. B.925.492).

e. 12/1.221.900. subsequently. the Federal Supreme Court must exercise its reasoning on the basis of facts contained in the judgment under appeal. [Seller] did not succeed in establishing an offer to [buyer] for the cotton that arrived at Genoa.000. the damage represented £IT7. [buyer] had noted without protest that the goods would be deliverable during the month of August 1994. thus. The damage justified was therefore £IT 118. these goods corresponded only partly to the subject matter of the contract.627.1). it was £IT 81. or where there are some manifest oversights (art. noted that [buyer] had a right to claim damages for replacement purchases of substitute goods that [buyer] had made since the month of July 1994. [Seller] pleads to the Federal Supreme Court to quash the cantonal Appellate Court judgment and. The cantonal Appellate Court concluded that that the [seller] had given up fulfilling its obligations and that it could not complain of the fact that [buyer] considered the contract as not being performed. the Appellate Court held that the [buyer] did not render proof that it had indemnified some subcontractors. Considering in law: 1.000. which required the delivery of cotton Ne 8/1. or where it is necessary to supplement the facts noticed by the cantonal Appellate Court because it did not take . C. 16/1. validly avoided the contract by the letter of 8 July 1994.900. The [buyer] pleads that the [seller's] demand be rejected and seeks the confirmation of the decision challenged. Many tons of cotton Ne 16/1 and 8/1 had been unloaded in Genoa on 7 August 1994 for [seller]. nonetheless. the [seller] requests an application for remand of the proceedings to the cantonal Appellate Court to decide the matter in accordance with the solution given by the Federal Supreme Court. on 8 July 1994. who had never received the goods ordered by the contract of 2 March 1994 in the period of time fixed by article 33(b) CISG. concluded in Vienna on 11 April 1980 (CVIM [*].900 and £IT 29. 20/1 and 30/1.650. i. [Pleadings on appeal to the Federal Supreme Court] At the same time as raising an appeal in public law.137. a total of £IT 36.840. Concerning the contract of 14 April 1994. except in instances where some Federal rules concerning proof have been broken. 74 and 75 CISG. The Appellate Court referring to articles 45(1).. nor did it ask the [buyer] to take delivery. to deny the [buyer's] claim. Sf 95.720 at the exchange rate of the day of filing the [buyer's] claim. the cantonal Appellate Court considered that. or proof of loss of any clients. RS 0. Additionally. [Jurisdictional issues] Considering a recourse to appeal.977. the cantonal Appellate Court declared applicable the United Nations Convention on Contracts for the International Sale of Goods. Nonetheless. The cantonal Appellate Court recognized that the [buyer]. which has been rejected by judgment of that day due to its inadmissibility. [seller] lodged an appeal to the Federal Supreme Court. 63 al. Concerning the loss of profit.In substance. 2 OJ [*]).211.

Neumayer/Ming. 33 CISG). In others words. p. 3 ad art. for the contract of 2 March 1994. 43(1) OJ [*]. 11 CISG). 2 CISG). op. Article 11 CISG establishes freedom from requirement as to form of contracts for the international sale of goods. b) [Formal requirements (Art. therefore. 398). n. the two contracts for the sale of goods with a commercial purpose were concluded between two companies having their headquarters in Contracting States. The application of CISG is exhaustive. therefore. In the case that the [seller] presents facts. 1(1)(a) CISG. 2. . Fixing date of delivery (Art. n. the additional application of national law is excluded (Stoffel. including the consequences of non-performance. 4 ad art.. These dates were 25 May 1994 and 5 June 1994. Switzerland. the Appellate Court declared. adopted the CISG on 1 January 1988. le droit applicable aux contrats de vente internationale de marchandise in: Publication Cedidac No. where the [seller] is located. it must be considered that the offer made on 15 February 1994 had been accepted. it governs the entire contract. Avoidance] The [seller] criticizes the cantonal Appellate Court as having misapplied articles 47 and 49 CISG by considering that the [buyer]. nonetheless.notice of some fundamental proven facts (art. Fixing date of delivery. on 8 July 1994. the date 5 June 1994 represented the last day on which goods should have been delivered (Neumar/Ming. the Federal Supreme Court is precluded from using such facts. the breach of such rules can also make possible a recourse to appeal (art. In principle. Vienna Convention on International Sale of Goods: Commentary. ATF [*] 126 III 59 consid. had validly cancelled [avoided] the contract of 2 March 1994. according to article 33(b) CISG. for correct reasons. 20. CISG contains some rules directly applicable. which are quite different from the facts contained in the decision under appeal without. 64 OJ. 55(1)(c) OJ). [Seller] can neither present attacks against some established facts nor can he use facts or instruments of proof that are new (art. that this Convention was applicable to the present dispute (cf. meaning the formation of the contract and rights and obligations of parties. In this case. Formal requirements. 36). Les contracts de vente international de merchandises. as here in ten pages. [Applicability of CISG. Because this agreement did not modify the offer concerning the delivery of the goods. in conformity with art. the moment of the delivery by an interval of time determinable by two fixed dates. where the [buyer] has its headquarters. has been a Contracting State to the Convention since 1 March 1991. a period during which the goods should have been delivered. satisfying any of the exceptions quoted above. to fix. with the results that parties are allowed. 1(1)(a) CISG)] Italy. a) [Applicability of the CISG (Art. 2a and other decisions). cit. 33 CISG)] It results from the fact that the offer made on 15 February 1994 by Vieffe in the name of the [buyer] has been solidified on 2 March 1994 by the conclusion of a contract of sale. ATF [*] 124 III 382 consid. 7b p.

without having fixed for the [seller] the additional period to deliver goods as provided by the article 49(1)(b) CISG. the goods. the damaged party being interested no longer in the performance of the contract. cit. cit. Moreover. the buyer may declare the contract avoided if the failure by the seller to perform any of its obligations amounts to a fundamental breach of the contract (para. only the consequences of the breach to the damaged party are determinative. This means that a principal obligation must have been breached in such a way that the economic goal of the contract cannot be achieved.. Therefore. The breach must concern the essential content of the contract. 2 ad art. op. According to that view. the additional delay of reasonable time that the buyer must give to the seller according to article 47 CISG was no longer applicable. It must be determined if. was within its rights to avoid (résolution) the contract of 2 March 1994 by reason of the lack of delivery of goods by [seller]. cit. 25 CISG). 81 CISG). and it is not useful for the [seller]. the seller does not deliver the goods within an additional period of time that has been fixed by the buyer or if the seller declares that he will not deliver within the period so fixed (para. by reference to the offer of the same day on the basis of which it had been concluded. it must be accepted that it was decided that the delivery should occur by the end of August 1994 (cf. op. 49 CISG)] According to article 49(1) CISG. 3 ad art. In fact. and it must lead to serious consequences to the economic goal pursued by the parties. 1 ad art. it does not matter whether or not the default is objectively reparable (Neumayer/Ming. (b)).. 25 CISG). 33(a) CISG). aa) [Fundamental breach of contract (Art. without the necessity that the latter suffers some monetary damage (Neumayer/Ming. in case of doubt. n.. art. . on 8 July 1994. or when. 4 and 7 ad art.. on 8 July 1994. cit. it must be considered that conditions of such breach are not fulfilled (Neumayer/Ming. (a)). It is not an avoidance in the juridical way of the words with effects ex tunc. the time within which the cotton had to be delivered according to the contract had already passed by more than one month. op. in the case of non-delivery. because. The motivation of the creditor must be identifiable by the debtor. there was no breach of the previous article. c) [Buyer's right to avoid the contract (Art. The importance of the breach is not determinative. n. n. 25 CISG)] The concept of fundamental breach as defined in article 25 CISG must be interpreted in a restrictive way and. but a résiliation which releases both parties from their contractual obligations yet to be executed and which executes itself ex nunc (Neumayer/Ming.Concerning the contract signed on 14 April 1994. so the debtor could have known or it would be possible to know that the creditor considered the performance of the breached contractual clause so essential that he would have refused the contract if he had known of such future breach (Neumayer/Ming. the [buyer]. Absolute loss of all objective interests of the creditor is not required. op. the breach of an ancillary obligation can only constitute a fundamental breach if it has some repercussions on the performance of the principal obligations in a such way that the interest of the creditor in the performance of the contract is lost. op. n. or the payment of the price concerned. 25 CISG).

Moreover. The contract determines if there existed a risk of a substantial detriment to the reasons and interests of the affected party. the [buyer] declared that the delay in the delivery prevented [buyer] from performing its own obligations. n. on the day in question. op. the [seller] could not have ignored that the buyer regarded the delay in the delivery as of prime consideration.. who. 25 CISG). at the moment of the failure to deliver on the correct date. especially in cases concerning seasonal goods. 25 CISG). cit. 25 CISG). bb) In the present case.n. A delay in the delivery of goods constitutes a fundamental breach of contract if the parties decided that the delivery must be made at a specific date. constituted a fixed date that was determinative for the buyer. [the seller] the party in breach was able to foresee the consequences of its conduct.. at the moment of the non-observation of the additional delay expiring on 5 June. In these circumstances. especially as the [buyer] stated precisely on 27 June that. This situation had the result for the [buyer] of erasing all interest it had in the contract of 2 March 1994. 5 June 1994. Concerning the commercial sale of the untreated material. The circumstances determine if it must be without other and also for the delivery at a certain date of goods for which the price in the market varies everyday. the damage must be foreseeable by the breaching party or by any other reasonable person of the same kind in the same circumstances at the time the breach of contract is committed.. in order to discharge [buyer's] obligations to third parties.. op. In that case. cit. n. the avoidance of the contract depends on the fixing of a supplementary period of a short time in accordance with article 49(1)(b) CISG. give an . should have received the material in order to be able to transform it and send it to its clients. cit. at the place and at the time of the conclusion of the contract. the determining interest of each of the parties must be identifiable by the other (Neumayer/Ming. 8 ad art. op. the buyer receives the right to immediately avoid the sale without giving a notice for a supplementary period (Neumayer/Ming. the period decided for the delivery was relied on as the essential content of the contract. Finally. before declaring avoidance of the contract of 2 March 1994. To judge that point. 49 CISG). It was not necessary that [buyer]. and that date was determinative from the point of view of the interest of the buyer in the performance of the contract and that the seller knew it. on 8 July 1994. the realization of the [buyer]'s economic goal in the contract was halted and the [buyer] was obliged to buy the goods from other suppliers on less advantageous conditions. 5 ad art. as indicated by the precise period of time decided for the delivery. 6 ad art.cit. in its letter of 3 June 1994. n. Finally. Against a considerable delay which constitutes a fundamental breach of the contract according to article 25 CISG. In the presence of minor fluctuation in prices. 3 ad art. it must be considered that the final term decided for the cotton delivery. which had encouraged that party to conclude the contract (Neumayer/Ming. the failure of the [seller] to deliver amounted to a fundamental breach of the contract. [buyer] had to ask other suppliers to deliver substitute goods. This is the case when it concerns an agreement with a reseller and the price goes down suddenly and considerably.

47). op.. The common adoption by parties of such conduct before the goods arrived in Genoa leads one to think there was a will to cancel the contract of 14 April 1994. or an obstacle that the .additional period to [seller] for delivery of the ordered goods. n. be held as an implicit declaration of avoidance of the contract (Neumayer/Ming. as will be seen below. Therefore. the CISG does not provide any obligation concerning the form of the avoidance of sale contracts (Neumayer/Ming. in respect to quality. In other words. 11 CISG). Notice of avoidance (Art. It may be that this is because of the fact that this cotton corresponded only very little. The determinative facts do not reveal the existence of circumstances that may constitute an unforeseeable or unavoidable impediment. 4. [Notice affixing additional final period for performance (Art. under article 49(1)(b) CISG. the date on which the goods loaded in Alexandria at the end of July 1994 were unloaded in Genoa. Indeed. depending on the circumstances. In a way that links the Federal Supreme Court (article 63(2) OJ [*]). 26 CISG)] The [seller] also makes an argument concerning the contract of 14 April 1994. cit. cit. The argument of the [seller] is irrelevant. But that does not matter. 79 CISG)] The [seller] argues that there was an impossibility of performance according article 79(1) and (2) CISG. some juridical effect must be given to the inaction of the parties after the 7 August 1994. 1 in fine ad art. This argument is founded on a presentation of facts that are different from the facts adopted by the cantonal Appellate Court. 3. it is accepted that a conclusive conduct constituted by a rejection of the goods that do not conform to the contract and a refusal to pay may. n. According to the freedom of form granted by CISG. op. neither of the parties to the contract cared about those goods. 1 ad art. to the goods expected according to the contract of 14 April 1994. This common inactivity of parties must be analyzed as the reciprocal manifestation of a tacit will to renounce the performance of the contract. 26 CISG). it would not be possible to have a valid avoidance of this contract. the [seller] could not complain that it was not formally informed to execute its obligations. Accordingly. There is no breach of articles 47 and 49 CISG. This argument is based on the fact that [seller] had not been properly notified of the fixing of the additional period for it to perform. [Impediment excusing a party from damages (Art. after 7 August. in breach of articles 47 and 49 CISG. If this argument were accepted. the Appellate Court stated that the parties did not have any contact concerning the goods ordered on 14 April 1994 after 7 August 1994.

is admissible (ATF 122 III 219 consid. The competent tribunal should not found its solution on the domestic law. 117 II 387 consid. the other party must prove any facts that exclude the invoked claim (Neumayer/Ming. and the reason for this is the meaning of the wording used in the provisions of the CISG. CISG contributes to the repartition of the burden of proof. article 8 of the Civil Code does not prescribe. the Appellate Court violated article 8 of the Civil Code of Switzerland concerning the burden of proof by considering that the claimant [buyer] had proven its damages concerning the replacement goods. a) [Burden of proof of damages] The [seller] argues that. 4 CISG). only the element coming from the arbitrary appreciation of proof. op. In cause. the [seller] contests that the products billed by the [buyer] in relation to replacement purchases. 13 ad art. That is why.. The [seller's] criticism is unfounded. 2a). cit. article 8 of the Civil Code forbids a judge from considering as an established fact that which is pertinent to the use by one party to found its right. According to that jurisprudence. op. the question of the application of article 8 of the Civil Code does not exist anymore. 79 CISG). were of same quality as the cotton ordered. The argument is therefore not admissible. The [seller] attacks the way in which the cantonal Appellate Court appreciated the proof rendered. how the judge must appreciate proof and on which elements he may found his decision. As CISG does not contain rules directing the judge how to reach its own opinion. 2 et 4 ad art. he should keep in mind the content of the material law applicable. in general. The result is that the party who invokes a right bears the burden of proof to its establishment of that right and. on the other hand. n. has no starting of proof (ATF [*] 114 II 289 consid. is the CISG. 5. the lex causae. 117. Neumayer/Ming. . when the appreciation of proof convinces the judge of the reality of a fact. [Principle and amount of damages] The [seller] invokes breaches of many rules to contest the principle and the amount of the damages held by the cantonal Appellate Court. When the judge examines this question. there is no obstacle. contested by the opposite party. 4c p. That legal rule is not applicable even though CISG does not contain direct rules on the burden of proof and all procedural questions are outside its scope of application.. in the example of the CISG. On the other hand. Indeed. There is the establishment of a relationship between a rule and its exception. where this fact. which. n. 119 II 114 consid. in this case. especially. 3c. Indeed. which does not allow the use of the jurisprudence of article 8 of the Swiss Civil Code. in an indirect way. to invoke imperatively a recourse to public law.[seller] could not reasonably have overcome (cf. 2e). cit. we can use the maxim "actori incumbit probation".

removed from the examination of the Federal Supreme Court in the instance of appeal (ATF [*] 123 III 241 consid. with an increase of 6% and 10%.3a. If the claim for damages is related to principles applied to determine the damages. the claim is nonetheless unfounded. On the other hand. 3b et les références). and the prices of the replacement supplier for the same goods. conforming to article 75 CISG. the damage is calculated in conformity with article 74 CISG or at the market price (article 76 CISG) (cf. the [seller] argues that replacement purchases made by the [buyer] could not have qualified as replacement purchases for the reason that a reasonable time should have passed after the avoidance of the contract before the purchase replacement goods. Therefore there is no reason why the [buyer] could not have bought substitute goods without delay. 75 CISG. ATF 120 II 296 consid. cit. it is only for the reason that [buyer] can obtain an advantageous price and contribute to the reduction of the loss resulting from the breach. 3b). 74. except in the case in which the seller could prove that the [buyer] was able to find other goods at a more favorable price. 2 ad art. In that way. Also. op. replacement goods (Arts. by the difference between the price concluded by parties. damages should be determined. 75 CVIM [*]). it is a question of law to decide whether or not the judge missed the necessity of juridical damage or misunderstood the sense of that notion to have founded its decision on erroneous grounds or without criteria pertinent to the calculation of the damages (cf. Article 75 CISG deals with the calculation of the damages. when the [seller] claims that the [buyer] refused the goods which arrived in Genoa on 7 August 1994. Assuming that there was loss suffered. 122 III 61 consid. If the substitute transaction does not correspond to these conditions. in accordance with article 77 CISG. 75 and 76 CISG)] Invoking art. 2c/bb. Neumayer/Ming. [seller] moves away from the facts recognized by the cantonal Appellate Court. n. only this difference can be claimed by the [buyer].b) [Measurement of damages. The cantonal Appellate Court has indeed taken into account the difference of price existing between the cotton ordered from the [seller] and the cotton actually delivered. if that article provides that the buyer purchases replacement goods within a reasonable time. 122 III 219 consid. As the [seller] does not indicate the reasonable measures that the . c) [Mitigation of damages (Art. The Appellate Court found that parties were not interested in what would happen to the goods that arrived in that port. the amount of damages is a question of fact. which must be effected in a concrete manner in the case of avoidance of the contract. 77 CISG)] The [seller] claims that if the Federal Supreme Court should arrive at the conclusion that purchases made on 7 July 1994 constituted replacement purchases under article 75 CISG..

Italy.. The [seller] alleges that the Appellate Court founded its decision on contested elements for which facts have not been proven. For these reasons. 1 OJ).E. Fees will be at the expense of the [seller] (art. Textile case Commercial Court (Rechtbank van Koophandel) Oudenaarde 10 July 2001 [A. [Ruling of the Federal Supreme Court] To conclude. the appeal of the [seller] must be rejected even though it is admissible. 1 et 159 al. 3. Declares that the [seller] will pay to the [buyer] an indemnity of Sf 6.).000 at the expense of the [seller]. 156 al. . Respondent on the counterclaim [Seller] vs. the Appellate Court correctly did not apply article 77 CISG. which depends only on the cantonal Appellate Court.000. having its legal seat in Vaiano Loc. Transmits the present decision in copy to order the parties and to the Civil Chamber of the cantonal Appellate Court of Geneva. Dismisses the [seller's] appeal and affirms the challenged decision of the cantonal Appellate Court.. a company under Italian law..l. L. 6. The [seller's] claim is irrelevant. 2. 1. (. the Federal Supreme Court: 1.r. Places a judiciary emolument of Sf 5. d) The [seller] criticizes the Appellate Court as having held in "an arbitrary manner" that the loss of profit claimed by the [buyer] was established. Plaintiff on the main claim. because it is based on the appreciation of proof.R. 44/97] Translation [*] by Maarten Draye [**] PARTIES S.[buyer] should have taken to limit the damage. the decision of the cantonal Appellate Court that is challenged by the [seller] is confirmed.

The facts and circumstances.S. The rules of private international law applicable to this legal relationship are governed by the Hague Convention of 15 June 1955. the court has ordered the reopening of the debates ex officio. 2. [a company under Belgian law]. Claimant on the counterclaim [Buyer]. The fact that Belgium has withdrawn from this Convention and that this withdrawal has taken effect from 1 September 1999 onwards (B.. having its legal seat in HaaltertHeldergem [Belgium] (. 2. submitted after the intermediary judgment. the contractual relation between the parties relates to three international sales agreements of moveable goods. which allows for a Defendant domiciled on the territory of a Contracting State to be summoned before the courts of that State. Assessment A. given the date of the sales agreements in dispute (March. in order to allow the parties to present their written arguments in relation to the applicable legal provisions and the legal consequences deriving thereof. were explained in their totality in the intermediary judgment dated 22 June 1999 and are at this place considered to be repeated. pursuant to the abovementioned article 2. Defendant on the main claim. B. jurisdiction to assess the present dispute. the present Court has therefore.. This Convention provides a two-tier rule as rule of reference: .). In their written submissions. Procedural aspects 1.NV B. Jurisdiction Article 2 of the European Execution Treaty of 27 September 1968 sets out the basic rule of jurisdiction. the rules of reference contained in the abovementioned Convention are to be applied. considering the fact that the claim at the basis of the present proceedings is based on crossborder contracts for the purchase and sale of moveable goods. 30 June 1999... namely textiles. As mentioned above.. 24535). [. as well as the subject of the dispute. As the Defendant [Buyer] has its legal seat in Haaltert-Heldergem. Applicable law 1.] 1. Before passing judgment on the merits. April and May 1995). both parties agree that the Vienna Sales Convention of 11 April 1980 [further referred to as CISG] applies. does not prevent that in the present case.

after which the [Buyer] did not react at all. 2.J. the choice of the applicable law must be made by means of an explicit contractual stipulation. eds.. while the other articles would be delivered by mid-June.  First. Subsequently. it may be considered that it agreed with the delivery date proposed by the [Seller]. Second. herroepingsbedingen en de Belgische internationale openbare orde" A.early July 1995. The CISG has been part of Italian law since 1 January1988. "Verplichtingen van de verkoper" in Het Weens Koopverdrag. (VAN NECK F. either explicitly or impliedly. (1) Article 33 of the CISG provides that. 109). the [Seller]. April and May 1995 and therefore came into existence after the coming into force of the CISG in Italy. it does not appear from the exhibits brought forward that the parties have made a choice of law. p. het toepasselijk recht. 1998-99. 944 e. it must take into account the dates agreed between the parties. In a fax-message dated 24 May 1995..v. Italian law. As a consequence. Consequently. and in any case before the end of May (1995). The court must therefore assess in the case at hand whether the deliveries by [the Seller] were late. the [Seller] confirmed that the order would be delivered on 10 May 1995. or appear beyond any dispute from the provisions of the agreement (article 2). in the case at hand. The [Seller]'s main claim The [Buyer] disputes the main claim for reasons of (1) multiple late deliveries and (2) the non-delivery of KABUL fabric by [the Seller].. In doing so. VAN HOUTTE H. the law of the residence of the seller. the CISG applies in the present case. and not the dates requested by the [Buyer] in the order letters:   Order no. Intersentia. 21463 dated 30 March 1995: where the [Buyer] had requested in its order letter dated 30 March 1995 that the goods be delivered at the latest by the end of April (1995)..T. the law of the country where the seller has his usual residence at the moment at which he receives the order applies (article 30). stated that two of the articles ordered could not be delivered before end of June 1995 . moreover.a. the [Seller] responded in its confirmation of 5 April 1995 that it was nearly impossible to deliver by the end of April. in a faxmessage dated 13 April 1995. the [Seller] responded in the confirmation of the order dated 12 May 1995 that it would not be able to deliver prior to 15 June 1995. in the absence of a choice of law by the parties. applies. Order no. The sales agreements in dispute date from March.) In the case at hand. "Over de bevoegde rechter. C. 1997. This order was delivered on 5 May 1995. the rule of party autonomy. As a result. 21713 dated 20 April 1995: where the [Buyer] requested in its order letter dated 20 April 1995 that the goods be delivered as soon as possible. . when the sales-agreement or a later agreement between the parties has determined a date of delivery. e. that date binds the seller (HERBOTS J.

while the remaining part was delivered during the first week of July 1995.beginning of July (1995). 22713 of 20 April 1995 is concerned. 21463 and 22105 have been delivered within the proposed limitations. on the condition that it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance (article 14(1) CISG). the [Buyer] responded that it wanted the delivery. agreed to a postponement of the time of delivery to 7 July 1995 for two items of the order.In a fax message dated 24 May 1995. the [Seller] requested the confirmation of the [Buyer] that it would accept those goods that would only be delivered at the end of June .  Order no. and even earlier than anticipated. 22105 dated 16 May 1995: in its order letter dated 16 May 1995. In its fax message of 6 June 1995. In contradiction to what the [Buyer] submits. As this newly agreed time of delivery was respected by the [Seller]. directed at one or more specific persons constitutes an offer. In the case at hand. no agreement has come into existence between the parties with regard to the KABUL fabric. This order was delivered in part on 9 June 1995. however. Article 19(1) of the CISG prescribes that a reply to an offer which purports to be an acceptance but contains additions. the [Buyer] responded that the goods ordered had to be in its possession before 7 July 1995. This order was delivered on 9 June 1995. an agreement comes into existence at the moment on which the acceptance of an offer becomes effective. there can be no finding of a late delivery by the [Seller]. at the latest by mid-June (1995). (2) Pursuant to article 23 of the CISG. In a fax message dated 5 June 1995. it appears that orders no. limitations or other modifications is a rejection of the offer and constitutes a counter-offer. From the documents submitted. the [Seller] proposed a modification in the sense of Article 19(1) of the CISG relating to . In its written response dated 21 April 1995 to the offer by the [Buyer]. the [Buyer] made an offer in the sense of article 14(1) CISG to buy 100 meters of KABUL fabric in its order letter dated 20 April 1995. As far as order no. A proposal to conclude an agreement. the [Buyer]. in default of which it would not accept the delivery. In a fax message dated 6 June 1995. Article 18(1) of the CISG stipulates that a statement made by or other conduct of the offeree indicating assent to an offer constitutes an acceptance. an agreement originally existed between the parties that delivery would take place by mid-June 1995. the [Buyer] did not propose a time of delivery.

. "Het Weens Koopverdrag in het Belgisch recht".. The [Buyer]'s Counterclaim Considering the above. being 5 June 1995. In its letter dated 16 May 1995.H. Afterwards. C. the [Seller] is entitled to interest (article 78 CISG). provided that a minimum order of 100 meters would be placed. The [Seller]'s main claim is therefore considered to be founded. K. Convention de Vienne sur les contrats de ventes internationales de marchandises. Consequently. o. In these circumstances. onwards. Cedidac. 303) or the rate under the law of the currency used (VAN HOUTTE H. the [Buyer]'s counterclaim is considered to be unfounded. the [Buyer] did not accept this counter-offer. the [Seller] therefore stated very clearly that it could not confirm the delivery of the KABUL fabric ("nous ne pouvons pas confirmer cet article"). However. Moreover. As demonstrated by the subsequent correspondence between the parties. 353).. As no formal notice of default is required for interest to start accruing (VAN HOUTTE H. 352). in which it proposed to start up the production of the KABUL fabric after all.c. & MING. the [Seller] proposed another counter-offer. the [Seller] is entitled to the amount due under invoice no. interest can be awarded from the date on which the invoice became overdue. 1998. The interest rate that is to be applied is either the legal interest rate of the place where the debtor has its residence (NEUMAYER.B. D. more specifically by suggesting the delivery of LIMA fabric as an alternative for KABUL fabric.the KABUL fabric.. T. the legal interest rate in force in Belgium is to be applied (as the debtor . Machines case Kantonsgericht [Cantonal Court] of Appenzell Ausserrhoden .. Article 78 CISG does not determine which interest rate is to be applied. 581 dated 5 May 1995. the [Buyer] did not want to agree to this counter-offer either.[Buyer] has its residence in Belgium and the currency of payment is Belgian). there can therefore be no finding of a failure by [the Seller] to meet its contractual obligations. In both hypotheses. 1993.

500. 3. bb) In the response to [Buyer]'s claim and before the court: If this point is to be argued. FACTUAL BACKGROUND A. 433/02] Translation [*] by Mariel Dimsey [**] Edited by Jan Henning Berg [***] [.. The right of [Buyer] to amend its claim (Nachklagerecht) should be noted. the claim should be dismissed and everything should be subject to costs and damages.76 plus 5% interest since 10 May 2002. The amount in Swiss francs owing to [Buyer] should be determined in the 2. POSITIONS OF THE PARTIES [Buyer]'s action a) The Plaintiff [Buyer]: aa) Before the Justice of the Peace (Vermittleramt) and in the statement of claim: [Seller] should be obliged to pay [Buyer] the amount of Euro 6. judgment. [Seller]'s response b) The Respondent [Seller]: aa) Before the Justice of the Peace (Vermittleramt): The above claims should be rejected in their entirety.. 4.179.599. subject to costs and damages.00. 6. The right of [Buyer] to amend its claim (Nachklagerecht) should be noted.76 plus 1. 5% interest since 10 May 2002.10 March 2003 [No. [Chronology of events] .] VALUE OF THE CLAIM: Swiss francs [CHF] 9. subject to costs and damages. bb) Before the court: [Seller] should be obliged to pay [Buyer] the amount of Euro 7. The amount in Swiss francs owing to [Buyer] should be determined in the 5. judgment.

4/6). 4/5). 6. the reasons for the delay were known (act. the then-legal representative of [Buyer] set [Seller] a deadline until 17 April 2002. 4/11). 4/2). 2. in response to which [Seller] informed on the same day that it itself had not yet received information as to the precise date from the suppliers. [Buyer] concluded a sales contract with Company C for a machine at a purchase price of Euro 21. in which to state whether it could perform the contract at all (4/7). With letter dated 12 April 2002. [Buyer] reminded [Seller] that the communication of the definite delivery date was still outstanding. 11/1). In this proceeding.76 plus 5% interest since 10 May 2002. 4/1). The delivery date for this machine was set for around 15 March 2002 (act. the parties concluded a sales contract regarding the above-mentioned machine. was operational in the company of a third party until approximately the beginning of March 2002 (act. 9. 10. the then-legal representative of [Buyer] demanded payment of Euro 6. On 8 March 2002. In response thereto. 11/2). By e-mail dated 10 February 2002. however. . 17). [Buyer] confirmed to [Seller] the purchase of the machine and requested the dispatch of an invoice and communication of the collection date (act. in which to state a collection date (act. By means of a fax dated 17 May 2002. which. By e-mail dated 7 March 2002. With letter dated 16 April (in any case.00 by 10 May 2002 (act. [Seller] informed [Buyer] of the postponement of the collection date and stated that further information would be forthcoming (act. On 24 January 2002 (act.000. 7. payable fourteen days before collection from Switzerland. [Seller] disputed its alleged inability to perform and referred to the lack of communication of the delivery date of the machine from the suppliers (4/8).1. Furthermore. [Seller] referred to the statement contained in the offer dated 21 January 2002 of an approximate delivery date at the beginning of March and reemphasized its current inability to give a precise collection date (act.00 was agreed on. 4/10).500.500. By e-mail. [Seller] sent [Buyer] information and photos concerning a particular machine by e-mail. In its letter dated 16 April 2002. A price of Euro 15. [Seller] sent [Buyer] an invoice. in accordance with its legal pleadings before the court. On 3 February 2002. 5. [Buyer] was informed that the precise collection date would be communicated to it in the following days. By e-mail dated 8 April 2002. [Seller] again disputed its alleged inability to perform and re-emphasized the comprehensive information supplied by it to [Buyer] regarding the temporal course and the background (act. By e-mail dated 25 January 2002. 8.00. [Buyer] claims a total of Euro 7. 4/12). 4/9). 4. On 21 January 2002. May) 2002. [Buyer] set [Seller] a deadline until 8 April 2002.179. 4/3). which contained its request for payment of the purchase price by bank transfer by 22 February 2002 (act. 11. the then-legal representative of [Buyer] set [Seller] a final deadline of 23 May 2002 to resolve the dispute outside the courts (act. according to [Seller]. 3.

Therefore. C. to determine the due date for the purchase price. [Seller] never did this. acting through its legal representative. Finally. 10). on the occasion of which the parties signed a settlement agreement subject to a right of revocation (act. then a dissent would have to be assumed regarding the delivery date and the expression of intention in the offer of [Seller] would then have to be interpreted according to the principle of good faith (Vertrauensprinzip). or even as late as 10/11 March for a reasonable contractual partner. [Buyer]. as long as the purchase price remained unpaid. [Buyer] must be able to reserve the right to amend its claim (Nachklagerecht). In addition.B. [Seller's position] . as well as the fees of the German legal representative. in fixing an actual collection date. The damages consist of the lost profits from the transaction with Company C. The response to [Buyer]'s claim was received by the Court on 3 October 2002 (act. It was thereby in the hands of [Seller]. [Buyer] brought the matter in dispute before the competent court (act. the protocol was left open until 12 August 2002 (act. An amendment of claim is factually not present. On 17 February. it could not have been in default. In the telephone conversations subsequent to the conclusion of the contract. In accordance therewith. due to its failure to deliver the machine on time. A delivery date was doubtlessly agreed upon between the parties. On 10 March 2003. D. Settlement was attempted to no avail on 12 June 2002. By letter dated 27 February 2003. [Buyer] revoked the settlement agreement (act. with delivery to take place at the beginning of March. [Earlier proceedings] On 21 May 2002. The fact that. and consequently was in default and is obliged to pay damages. basically indicated in the statement of claim and before the court that. 18). in good faith. by the communication of [Seller] regarding the delay in delivery. On 25 January 2002. With its statement of claim dated 11 July 2002. 1). it agreed upon a delivery date of 13 March 2002 in the agreement with Company C. 3). [Buyer's position] To establish its claim. [Buyer] then resold the machine to [Turkish] Company C by a sales contract concluded over the telephone. in the sales agreement dated 24 January 2002. the final hearing took place in Trogen. however. the due date for payment was extended implicitly. [Seller] was in default. Since [Buyer] assumed that [Seller] was going to comply with the delivery date of 11 March. [Buyer] was entitled. 19). this would be permissible anyway. is to be held against the claim of [Seller] that.. however. to rely upon the machine being ready for collection within the first two weeks of March at the latest. followed by written confirmation of this agreement on 8 March 2002. counsel for [Seller] wrongly disputes the interest of legal protection (Rechtsschutzinteresse). as it could suffer further damages owing to the potential loss of the business relationship with its Turkish customers. 11 March 2002 was set as the collection date. a due date for payment of fourteen days before delivery was agreed upon. the main proceedings were held in Herisau. The approximate delivery date of the beginning of March would perhaps mean 26 February. [Buyer] requested settlement proceedings (Vermittlungsvorstandes). The term "beginning of March" became a part of the contract and. as if this had not been the case. a due date for payment of 22 February 2002 was stated by [Seller] in the invoice dated 3 February 2002.

and both states do not fall within the sphere of application of the Hague Convention. SR [*] 0.211. 2(1) Lugano Convention. SR [*] 0. REASONING OF THE CANTONAL COURT 1. A definite collection date was not agreed upon. but also a lack of causal connection. a) Germany and Switzerland are member states of the Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the socalled Lugano Convention. it could be seen that the machine in question would fall victim to a substitute project of the owner. According to Art. Kommentar zum Schweizerischen Privatrecht. E. With regard to the damages asserted by [Buyer] and to be proven by him. 5 Lugano Convention would give rise to special jurisdiction. [Switzerland]. subject to the provisions of this Convention. there was clearly an obligation on [Buyer] to perform its obligation first. In this regard. 2(1) Lugano Convention.211. In the following reasons for judgment. Consequently. This e-mail also included the sentence that they would continue to stay in contact. 2(1). regardless of their nationality. this would have to be assessed by the judge. respectively. 1(2) IPRG [*]). On 7 March.In contrast thereto. be discussed. the payment of the purchase price before delivery or collection was agreed upon. 12(1) ZPO [*]). b) Associated with the question of the applicable law. Art. persons who reside in the sovereign area of a member state. 118(1) IPRG refers to the Convention on the Law Applicable to International Sales of Goods (the so-called Hague Convention. further factual matters and further assertions of the parties will. here. which leads to the application of local jurisdiction. both states are member states of the United Nations Convention on Contracts for the International Sale of Goods (so-called CISG. By e-mail dated 25 January 2002. This results either from Art. [Seller] generally asserted in the response to [Buyer]'s claim and during the main negotiations that. as the parties to the present proceedings are located or reside in Germany and in Switzerland.11). [Buyer] threatened legal action. 118 IPRG together with Arts. It was also mentioned in the sales agreement that the collection date was still to be communicated.. SR 0. which it then received. 3 Hague Convention. a just-in-time transaction was not at stake. the precise cessation date was yet to be determined. [Seller] has its place of residence in S. However. Art. alone due to [Buyer] establishing contact. This Convention can. The risk associated with the on-sale must be borne by [Buyer]. Internationales . and then waited until 28 April. and then concluded the so-called sales contract with the Turkish company on 8 April.4). not be applied to the above question.1). can be brought before the courts of this state in legal actions. [Buyer] requested an invoice and a collection date. to the extent necessary. [Buyer] requested an invoice. however.275. As local jurisdiction already results from an application of Art. Decisive for jurisdiction is therefore the place of residence of [Seller]. This remark referred to the fact that the delivery date still remained open. the CISG is to be regarded as the domestic law (Honsell/Vogt/Schnyder.221. but no payment was made.e. Subject matter jurisdiction of the Cantonal Court of Appenzell Ausserrhoden is established similarly (Art. In the alternative. the CISG applies as the applicable law. 1(1)(a) CISG or from Art. Contact with [Seller] by telephone continued to occur. as a consequence of which the applicability of the provisions of the Lugano Convention to the present dispute must first be examined (cf. According to the sales agreement. there is therefore no further need to examine whether Art. if [Seller]'s liability could generally be accepted. there is firstly a lack of fault on behalf of [Seller].221. i. however.

3). para 5 on Art.Privatrecht. the debtor can make payment in the currency provided for in the contract.500.oanda. converted as of 21 May 2002. be admitted. 3 and act. Not only every claim. which must be disregarded.599. Speicher 1988.Rh.179. Ehrenzeller. 2. Claimant [Buyer] is asserting a claim of Euro 6. ibid. The collection date of the machine was not provided. 118(1) ZPO). 99 ZPO [*]. produces CHF 9. A foreign currency is to be converted at the average exchange rate for dividends at the point in time the judgment becomes legally effective (supplementary volume Frank in Frank/Sträuli/Messmer. Case No. however. decision dated 27 August 1996 in the matter of S. Reason 4 on Art. changing the pleadings is only permitted if the opposing party agrees. 203 ZPO). In addition.71 (Conversion under: <http://www.. 9/95). but also every application is to be based upon a factual or legal interest of legal protection (M. the value of the dispute amounts to>). . Such a claim is admissible (OGer AR. para 1 on § 18). Therefore. Zivilprozessordnung des Kantons Appenzell A. 115(1) ZPO. e) According to Art. As a consequence of the lack of interest of legal protection. a) Both parties agree in their assumption that a valid sales agreement was concluded (act. 66. an inadmissible amendment to the claim has been made. c) The claim is concerned with payment in a foreign currency. 118). however. AG against J. Therefore. 143).76. the value of a dispute over a claim for payment of money is ascertained according to the pleadings of the Claimant. 116(1) ZPO) is fulfilled in the present case. 3/p. The subject matter of the agreement. Consequently. Zürich 2000.H. No.599.76. or if the change does not fundamentally burden the proceedings and the legal position of the opposing party is not impaired. CHF 9. Basel 1996. [Buyer]'s claim became legally effective with the making of determinative pleadings on 21 May 2002 (Art.596. the interest of legal protection is absent. 4/2). point 2 of [Buyer]'s pleadings cannot. [Buyer]'s claim of Euro 6. 4/2). [Seller] has not given its consent to the additional Euro 580 claimed by [Buyer] and the amendment of the pleadings doubtlessly impairs the legal position of [Seller]. in relation to point 2 of [Buyer]'s pleadings..76. The Swiss law of obligations is. g) The remaining procedural condition to be examined ex officio (Art. subsidiarily applicable (SG GVP 2000. In any case. 10/p. the claim is admissible. a claim or another pleading will only be examined if a legal interest in the judgment exists. Ehrenzeller. the purchase price and the guarantee were explicitly provided for in the sales agreement dated 24 January 2001 (act. As the conversion only becomes relevant in the context of the prosecution. para 1 on Art. According to Art. the Court cannot be obliged to convert the claim into Swiss currency on the day of judgment (M. which was titled as an "order confirmation" (act. the communication of the precise collection date was foreseen for the following days in the sales agreement. 99 ZPO). therefore. SZIER 2002 p. a claim for a foreign currency. 114(1) ZPO [*]. after the dispatch or submission of the claim. Kommentar zur zürcherischen Zivilprozessordnung. d) [Buyer] has amended its pleadings before the court to the extent that it now demands Euro 7. f) According to Art.

at . by e-mail dated 16 April 2002. On 3 February 2002.and here is its fundamental obligation -. 17) to send it the invoice and to inform it of the collection date. either due to a grave defect in its ability to perform the contract. Consequently. [Seller] mentioned in its first e-mail dated 21 January 2002 that the machine was currently still in operation until approx. 4/1) and that this must also be considered in the present case. para 5 on Art. [Seller] fell into default. Kommentar zum Einheitliche UNKaufrecht. The deadline set by [Buyer] is to be regarded as an additional period of time (Nachfrist) within the meaning of Art. 3rd ed. As [Seller] did not deliver the machine on time. The sales contract concluded between the parties dated 24 January 2001 (act. act.had communicated the collection date. acting through its then-legal representative. In the sales agreement dated 24 January 2001 (act. 4/6). However. 33(c) CISG). As to the question of what would have been a reasonable period of time. the question must be posed as to until which point [Seller] would have been obliged to fulfill its obligation to make the machine available.000 was payable fourteen days before collection. the buyer can set the seller a reasonable additional period of time for the performance of its obligations. after the conclusion of the contract. [Seller] informed that there would be a delay (act. [Seller] would have had to deliver the machine within a reasonable period of time after the conclusion of the contract (Art.. In this regard. According to Art. or due to its behavior in preparation for performance or during performance of the contract. [Seller] fulfilled this request and demanded payment by 22 February 2002 (act. Consequently. c) On 12 April 2002. it was agreed (act. According to this. The obligation of prior performance of [Buyer] was thereby suspended. 4/3). However. or in its ability to pay. 71(1) CISG. Such an additional period of time can only be set by the buyer if the seller has not performed its obligations under the contract (Schlechtriem. [Buyer] raises the defense that a delivery date had been agreed upon between the parties. [Buyer] was entitled to suspend performance of its obligation to pay from 10 February 2002. already on 10 February 2002. after [Seller] -. 4/2) that the price of Euro 15. On this date.b) [Seller] relies on the point of view that [Buyer] was obliged to make prior performance with respect to the payment of the purchase price. set a deadline of 17 April 2002 (4/9). [Seller] stated that it was still unable to announce a precise date and founded this on problems with a third company (4/10). Munich 2000. for which reason [Seller] could not have fallen into default. 47). 4/2) provided for the collection of the machine by the buyer from its location in Switzerland. according to this provision. 4/5) and indicated on 7 March 2002 that a collection date was not yet determinable (act. it turns out that the other party will not perform an essential part of its obligations. the collection date was left open. [Buyer] asked [Seller] (act. [Buyer]. a party can suspend the performance of its obligations if. [Buyer] did not fulfill this obligation. the beginning of March (cf. by which the collection date of machine was to be announced. In the sales agreement dated 24 January 2002. 47(1) CISG. 4/2). [Seller] informed [Buyer] firstly about the postponement of the collection date and it was thereby obvious that [Seller] was not going to be able to comply with the fourteen-day period for the provision of the machine after payment. By e-mail dated 25 January 2002. a communication of [Seller] concerning the precise collection date would have been required in order to rejuvenate [Buyer]'s payment obligation. As a consequence thereof.

as well as the fees of the German legal representative as damages (act. 1. Extending this period of time twice as long resulted in an approximate date of availability and collection of the beginning of April. The damage incurred to the creditor by a breach of contract is to be calculated by the concrete method of calculation (Schlechtriem. [Buyer] declared that it would refuse the further performance of the contract and was instead making claims for damages (act. Consequently. According thereto. it must be assumed that only the company of [Buyer] in Wuppertal could be understood as "works". Consequently. Schlechtriem. [Seller] obviously did not fulfill this obligation. 74.e. 3. it must be held that [Buyer] has not provided legally sufficient evidence as to which damages it actually suffered. it was indicated to [Buyer] that the machine would be available in approx.5 months. [Buyer] asserted the lost profits from the transaction with the Turkish company. 48 to Art. 33(c) CISG. ibid. d) By letter dated 29 April 2002. the buyer can declare avoidance of the contract if. 3/p. 42 OR. 74). The buyer bears the burden of proof with respect to the existence of damage. 3). including loss of profits (Art. the official costs will be borne by [Buyer]. the costs [Buyer] would have had for the transportation of the machine from Switzerland to Germany are left open. its claim must be rejected. a period of time still longer than this could no longer be regarded as a reasonable period of time within the meaning of Art. 101.this stage. However. 4/11). the seller does not deliver the goods within the additional period of time set by the buyer under Article 47(1). [Seller] would have had to have made the machine available for collection by the beginning of April 2002. An estimation of the damages. In any case. In the present case. para 28 et seq to Art. As the sales contract with the Turkish company provided for delivery EXW. a) The legal costs are usually borne by the losing party (Art. first sentence CISG). ibid. para 23 to Art. ibid. is therefore not permitted. it has to substantiate and specify the damage for evidentiary purposes (Schlechtriem. para 2 on Art. In summary. paras 47. ibid. 4/12) that [Buyer] intended to resell the machine for a price of Euro 21.500. Lost profits are defined here as every prevented increase in value caused by the contractual breach (Schlechtriem. i. Here. 86(1) ZPO states that the losing party shall be obliged to reimburse the winning party with all costs caused by the legal dispute. ZR 100 p. it can be seen from the files (act. b) Art. after the expiry of the additional period of time set by [Buyer]. Art. 102). Starting from a dispute value of .. a declaration of avoidance within the meaning of Art. 74). as would be undertaken under Swiss law (cf. The damages to be compensated by a breach of contract committed by one party are the losses incurred by the other party as a consequence of the contractual breach. These transportation costs would have had to be borne by [Buyer] and these costs would have had to be deducted from the profit from the re-sale of the machine to the Turkish company. 74). According to the course of proceedings. 81(1) ZPO [*]). 49(1)(b) CISG becomes relevant. The court costs have been determined as CHF 1.700. and absolutely no reference was made to the location of the machine in Switzerland. in the case of non-delivery. the concrete damages that [Buyer] actually incurred are not clear. 47). or if [Seller] declares that it will not deliver within the period of time so set (cf.

average fees of CHF 2.707. to the Supreme Court chamber. 3. comprising CHF 110 lodging fees (Vermittlungsgebühr) CHF 1.700 court fees __________________ CHF 1. 4. 5. In additional. .Appeal registered by [Buyer] through its attorneys on 14 March 2003. Technical Equipments case .CHF 9. Instructions as to Legal Proceedings: Whoever. Provided to the parties via their legal representatives. this must be made in writing.. with this decision attached. after the handing down of the judgment.Rh. and wishes to pursue this. 9043 Trogen. plus VAT are to be added. The declaration of appeal must contain information concerning in which points this judgment is appealed.71. [Buyer] is to compensate [Seller] with out-of-court costs in the total amount of CHF 2. in addition to these provisions. within fourteen days after the handing down of this founded judgment. petty cash expenditure of CHF 50. CONSEQUENTLY. 2.596. . which amendments are demanded and which evidentiary applications will be made. If the appeal is solely concerned with the issue of costs.Judgment not given orally. will appeal to the Supreme Court of Appenzell A.810 in total. Thereby. 9(2)(b) Swiss Attorneys' Fee Schedule) is reached. In civil law disputes.970. THE CANTONAL COURT HELD: 1. including set-off of the advanced payments of CHF 410 made by it. will be borne by [Buyer]. The official costs.90 (Art. must submit a declaration of appeal. that the appeal declaration is to contain all new factual claims and must be submitted in sufficient copies for the court and the opposing party also applies. [Buyer] is obliged to compensate [Seller] out-of-court in the amount of CHF 2. [Buyer]'s claim is dismissed.970. Faxes and e-mails are not legally valid and have no effect with regard to the observance of limitation periods.

by notice to the Court Clerk on 4 January 2002. Distribution D'Equipements D'E.....815. RESPONDENT: Socit F..... et de L. [Buyer] requests that the Court vary the judgment delivered and to: . Represented by SCP M. [PLEADINGS] [Buyer] .. delivered by the Commercial Court of La Roche Sur Yon. brought an appeal from this decision. assisted by Matre B.A.A. the Court of La Roche Sur Yon dismissed [Buyer]'s claims and condemned it to pay to [Seller] the sum of 6..... The abrupt end to commercial relations C) The ancillary claims Holding of the court [. i.] PARTIES : APPELLANT: S. Court attorneys.. both domiciled at the location of the registered office.... Court attorneys. Delivery delay 2...196 pesetas. with interest at the commercial rate calculated from 4 December 2000. (DEELO) v. Internacional SL Translation [*] by Julia Hoffmann [**] Parties and particulars Pleadings Reasoning of the court A) Applicable law B) Substantive issues 1.80 Euros. assisted by Matre L. represented by its Manager domiciled at the location of the registered office...25 Euros in application of Article 7000 of the New Code of Civil Procedure. & M..R.734. Barcelona... In view of the pleadings dated 8 June 2004.e..L... who delivered the closing argument. in addition to an indemnity of 762.. 267..791... Following from the Notice of Appeal filed on 4 January 2002 from a judgment dated 6 November 2001.Court of Appeal (Cour d'appel) of Poitiers. et de L. represented by SCP G. having its registered office at (. Internacional SL "[Seller]". barrister at the Poitiers bar. & A. who delivered the closing argument. Ste Hermine.. [...). notably its President and Director. 28 October 2004 S. barrister at the Laval bar.07 francs or 40. Distribution D'Equipements D'E.). Socit F.R.. a Spanish company..... (DEELO) "[Buyer]" having its registered office at (.] PARTICULARS : By judgment dated 6 November 2001. appearing by way of its legal representatives.L. Defectiveness of the goods delivered 3.

claiming that because of this [Buyer] suffered considerable loss amounting to the amount unpaid on the invoices. a French company. The pre-trial proceedings were closed by order of 2 September 2004.. and the non-performance claimed in its pleadings and the abrupt cessation of supplies. . it is in relation to the provisions of that Convention that the situation must be assessed.Sentence [Seller] to the payment of 15.. 1. as well as unilateral modifications of price.. [Buyer] obtains supplies from [Seller] and it is on this basis that several invoices were issued by [Seller] and submitted to [Buyer]. Therefore. except to state that the sentence will provide for the commercial rate to be calculated from 10 August 2000 on the amount of 5.900 pesetas.71 Euros for the loss suffered by [Buyer].Declare that.).Order [Buyer] to pay [Seller] the sum of 1. from 10 September on the amount of 652. as a result. as it relates to an agreement passed by [Buyer]. REASONING OF THE COURT A) Applicable Law It is not contested by either party that this dispute is subject to the Vienna Convention of 11 April 1980 on the International Sale of Goods. Delivery delay On the basis of the documents produced. [Buyer] placed an order with [Seller] for its usual supply of materials (sand filters.Affirm the judgment on appeal. .Sentence [Seller] to the payment of 45.Sentence [Seller] to the payment of the sum of 762. and from 10 October 2000 on the amount of 993. B) The Substantive Issues For the requirements of its business.256 pesetas. and relating to a delivery of goods. .25 Euros on the basis of Article 700 of the New Code of Civil Procedure.000 Euros for abuse of process in addition to 1. pumps etc.040 pesetas. it appears that on 7 and 17 March 2000.300 Euros for unrecoverable legal costs.244. [Buyer] invoked the defense of non-performance (delivery delay) by [Seller] and lack of conformity in the goods delivered. whose establishments are situated in Spain. as a result of the delay in deliveries. with a Spanish Company [Seller]. . [Seller] requests that the Court: . [Seller] subsequently commenced proceedings and filed the relevant unpaid invoices with the Commercial Court of La Roche Sur Yon on 4 December 2000. and took care to mark "URGENT" on the orders.90 Euros in damages for the loss suffered by [Buyer] for the late delivery and the non-respect of contractual obligations. . . the debt alleged by [Seller] will be compensated by the debt claimed in the cross-claim by [Buyer].734.145. In its pleadings dated 26 June 2003.

. 3.20 francs as delay penalties. The Court notes that [Buyer] remained silent between the date of delivery of the materials that were the object of the four unpaid invoices and the subject of the hearing before the Commercial Court of La Roche Sur Yon. [Buyer] was fined by the Council 6. which is surprising. Therefore. which provide that the buyer must examine the goods within as short a period as is practicable in the circumstances..475. i. 2. but it has not demonstrated that it regularly benefited from discounts on the products in dispute. even if [Buyer] justifies its silence by indicating that "the defects in the goods delivered were not apparent. The Bressuire project report (exhibit n 16) certainly provides for a supply of filters by [Buyer] on Tuesday. Defectiveness of the goods delivered The provisions of Article 46 of the Vienna Convention make reference to Articles 38 and 39. 2 June. providing for a discount rate of 50 to 60 % on certain product lines. but instead relate to a delivery made by the MMC Company. from reading the exhibits submitted to him. nor fixed an additional period of time for delivery (Article 47(1) of the Convention). and if. nor that the deliveries arrived late. over thirteen months after the issuing of the last invoice. and which are again presented before the Court. between two and four months after the placing of the orders." The trial judge did not fail to observe. as provided by Article 46(1) of the Convention. there is no evidence in the court file to show that these penalties were essentially imputable to the delivery delay by [Seller]. unrelated to this dispute. there is no proof of defectiveness. The abrupt end to commercial relations [Buyer] submits to the Court a letter sent by registered mail dated 19 April 1999. for each calendar day. [Buyer] never issued the slightest demand for performance. by specifying the nature of the lack of conformity of the goods within a reasonable time. but it is not necessarily in relation to the orders in dispute. It is therefore correct that the trial judge declared that [Buyer] did not stipulate a date for delivery. If the technical department of the Bressuire Council advised the [Buyer] on 7 July 2000 that commencing the next day. after it discovered it or ought to have discovered it.e.e. and that the buyer is definitively deprived of its right to avail itself of the alleged lack of conformity where it was not declared.475.20 francs on 16 October. 26 June and 21 July 2000. that the filters examined by a bailiff on 2 November 2000 do not correspond with the disputed invoices dated from the month of October 2000 and do not relate to the request for payment of [Seller].. The judgment will therefore be upheld. in relation to the [Seller's] primary claim.The deliveries were made on 31 May. i. 23 May. and were not revealed until after weeks of use. 6. it would be fined by reason of 1/3000 du march.

4 December 2000. . FOR THESE REASONS.Orders [Buyer] to pay to [Seller] a supplementary indemnity of 1. [Buyer] will be responsible for the costs of appeal.Orders [Buyer] to pay the costs of appeal.Confirms in all its parts the judgment delivered. . rightfully decided to accord the interest to be calculated from the date of summons. without it being necessary to give formal notice. However. accordingly.Dismisses [Seller]'s claim for damages for abuse of process. contradictoirement and as the final court of appeal. Ruling in open court..C) The ancillary claims [Seller] makes a claim based on Article 78 of the Vienna Convention that interest is payable from the date of the enforceability of the debt..000 Euros. The appeal is a normal prerogative open to parties. THE COURT. [Seller] deduces that it is appropriate to add this to the judgment by specifying that the interest runs from the date of enforceability of each invoice. On the basis of Article 700 of the New Code of Civil Procedure.000 Euros on the basis of Article 700 of the New Code of Civil Procedure. . The claim for damages formulated on this basis by [Seller] will therefore be dismissed. that must not be sanctioned except if there exists a manifest abuse or a specific loss.Authorizes the application of the provisions of Article 699 of the New Code of Civil Procedure. i. which is not the case here. after having deliberated in conformity with the law: . Article 78 is drafted in a laconic style: "If a party fails to pay the price or ay other sum that is in arrears.e." The trial judges. without prejudice to any claim for damages recoverable under article 74. [Buyer] will be ordered to pay to [Seller] a supplementary indemnity of 1. .] . [. the other party is entitled to interest on it..