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| Abstract | ||||||||||||||||||
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| A German seller had sent an invoice relating to ten acoustic prosthesises to an Italian buyer who had previously expressed its intention to buy them. The buyer, by fax, stated it was able to take delivery of the goods, which it later did not do. After receiving a notice to perform the buyer notified the seller that it no longer intended to take the goods. Subsequently the parties came to a settlement agreement according to which the seller agreed to waive its contractual claims provided the buyer took delivery and paid part of the purchase price within a fixed term. As the buyer did not comply with the settlement agreement, the seller commenced action on the basis of the original agreement and claimed damages.
The court applied Art. 5(1) of the EC Convention on Jurisdiction and the Enforcement of Decisions in Civil and Commercial Matters (Brussels 1968), pursuant to which a person domiciled in a Contracting State [i.e. the buyer] may be sued in the court for the place of performance of the obligation in question (taking delivery of the goods). The court applied CISG to determine the place of performance, as at the time of the conclusion of the contract the parties had their places of business in contracting States (Germany and Italy) (Art. 1(1)(a) CISG). As Art. 60(b) CISG does not specify the place of performance of the obligation to take delivery, the court referred to Art. 31(b) and (c) CISG, which provides that the seller must make delivery at the seller's place of business, when there is no contrary agreement. The court concluded that the buyer had to take delivery from the seller's place of business (Germany). The court therefore affirmed its jurisdiction. The court found that the buyer was in breach of the obligation to take delivery of the goods and the seller, who had fixed an additional period of time for performance, was entitled to recover damages as per Arts. 61(1)(b) and 63 CISG. In addition the court held that CISG is not concerned with the validity of the settlement agreement (Art. 4(a) CISG). Further, the court held that the application of CISG precluded the recourse to domestic law regarding mistake as to the quality of the goods and regarding 'Wegfall der Geschäftsgrundlage', being these matters exhaustively covered by CISG. |