Date: 10.10.2001
Country: Germany
Number: 6 U 126/00
Court: Oberlandesgericht Rostock
A German buyer and a French seller entered into a contract concerning delicatessen. The seller commenced an action to obtain the purchase price. The Court rendered a partial decision concerning some of the deliveries. For the final decision of the case see Oberlandesgericht Rostock 25.09.2002, 6 U 126/00, Abstract and Fulltext in UNILEX.

Though the parties had chosen German law by referring to the provision of the German Commercial Code in their pleadings, the Court held that CISG was nevertheless applicable, being part of German law. In order for the parties to implicitly exclude CISG, a clear intent to this effect is to be proven. The mere reference to the rules of non unified domestic law of a contracting State is thereto not sufficient.

In the case there existed also some difficulties as to what quantity of goods was ordered and at which price. Making reference to Art. 55 CISG, the Court assumed that the parties, in the absence of any indication to the contrary, had implicitly agreed to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned. In order to determine such price, the Court referred to the usual price list for the goods.

The Court further did not accept the buyer´s contention that there had been an excess delivery of certain goods, since it was contradictory with the buyer´s own statements and behaviour.

Finally, the Court granted the seller interest for the sums due. Since Art. 78 CISG does not determine the interest rate, the Court held that German domestic law was applicable, either as the law otherwise governing the contract, or as the law of the currency of the purchase price.