Date: 13.04.2000
Country: Germany
Number: 49 C 502/00
Court: Amtsgericht Duisburg
Parties: Unknown
An Italian seller and a buyer of Italian nationality but with place of business in Germany were in a long-standing business relationship for the sale of cardboard packages for pizza. Seller and buyer entered into a sales contract. The buyer, as it usually did, paid the price in advance. The seller handed over the cardboard packages to a transportation company that then delivered the goods. At the delivery a substantial part of the goods were damaged and could not be used for their purpose. Relying on the fact that the seller, during the course of their business relations, had twice granted the buyer a credit when goods arrived damaged at the buyer’s place of business, the buyer sent an invoice for the price of the damaged goods to the seller. The seller however this time did not grant a credit to the buyer. After a subsequent delivery of goods that were not damaged, the buyer refused to pay the price of the subsequent delivery, claiming set-off with its alleged counterclaim deriving from the previous contract. The seller filed a claim against the buyer for payment of price.

The Court held that the contract was governed by CISG, since seller and buyer had their place of business in two different contracting States, irrespective of their nationality (Art. 1 CISG).

As to the question of set-off, the Court noted that it is a matter not expressly settled in CISG. It found that though it is generally acknowledged that set-off between claims deriving from the same sales contract is admissible under CISG, the disputed claims derived from different sales contracts. The Court considered that this is a question not expressly settled in CISG and not to be solved by way of interpretation, therefore it applied the relevant domestic law according to Art. 7(2) CISG (Italian law). The Court found that the buyer had no right to set-off.

Moreover, the Court found that the buyer had no right to a credit due to a practice established between the parties according to Art. 9 CISG, because the granting of a credit on only two occasions during a longer business relationship did not suffice to establish a practice. According to the Court, Art. 9 requires a behavior that is regularly observed and therefore of a certain duration and frequency relating to the length of the business transaction involved.

Furthermore the Court held that the buyer had no right to damages under Art. 45 (1)(b), 74 CISG because the seller had performed its duty of delivery according to Art. 31(a) CISG. Under Art. 31(a) CISG the seller was obliged only to hand over the documents to the carrier. Since the buyer failed to produce evidence for an alleged agreement on the place of performance being at the buyer’s place of business, for which he carries the burden of proof, the general rule of Art. 31(a) CISG applied.

Moreover the Court found that according to Art. 36 CISG the seller was not liable for the non-conformity of the goods, which occurred after the passing of risk. According to Art. 67 CISG the risk had passed to the buyer with the handing over of the goods to the carrier. The seller was not bound to hand over the goods at a particular place as the buyer failed to produce evidence for such an agreement.

The buyer was ordered to pay the price plus interest, at the rate determined by Italian domestic law (without having to decide whether this happened by virtue of a special connecting factor, that is the creditor’s place of business, or by virtue of the law otherwise applicable to the contract).