Data

Date:
28-05-2001
Country:
Germany
Number:
16 u 1/01
Court:
Oberlandesgericht Köln
Parties:
Unknown

Keywords

APPLICATION OF CISG - COMMISSION CONTRACT AND SALES CONTRACT

MATTERS EXCLUDED FROM SCOPE OF CISG (ARTS. 1 AND 4 CISG)

Abstract

An Italian seller delivered from 1995 until 1998 clothing and other accessories for motorcyclists to a German buyer. The contract between the parties consisted of an ongoing correspondence over a few months in 1995. The Italian seller sent a draft agreement to the buyer containing the conditions for future co-operation, according to which the buyer was to act as sole distributor for the seller in Germany, the buyer would buy the textile goods and sell them for a price determined by the buyer itself. A part of the goods were to be sold on the seller's account in return for a commission paid to the buyer. After additional correspondence the parties agreed on a contract, which was finally drafted by the seller and sent to the buyer. Though the parties never signed the contract, the deliveries continued until the seller in 1998 gave notice to terminate the contract.

The plaintiff in the case, a successor to the Italian seller, claimed payment of the purchase price with interest for three deliveries of leather clothing. The buyer argued for a dismissal of the case on the grounds that it had received the goods on commission, which was in fact mentioned in several places of the contract. The buyer also filed counter claims for the payment of an agreed compensation and a lost commission deriving from seller's deliveries of leather clothing to another German company during the time of notice??.

The Court established that the parties had implicitly agreed that German law and as such CISG would be applicable to the contract as they had not challenged that in the proceedings before the lower Court.

The Court then concluded that the buyer had to pay the purchase price as claimed by plaintiff according to Art 53 CISG.

In reaching its conclusion the Court first addressed the buyer's argument for a dismissal of the case and stated that the decisive element in defining whether the buyer had received the goods on commission was not how the purchase was characterised in the contract, nor the fact that a commission should be paid to the buyer under the terms of the agreement, but it should be determined instead by the contents of that contract. In particular, the court took into consideration on whose account the goods were sold and if the payments were to be settled in connection with the sales. In the case at hand, according to the Court, the buyer had not received the goods on commission as it distributed the goods on its own account. Furthermore there was no agreement on settling the accounts between the parties which had also happened only once in the long-term business relationship. The contract was therefore a contract for the sale of goods between the parties governed by CISG (Art. 1(1) CISG).

The Court then found that both counterclaims filed by the buyer were outside the sphere of applicability of CISG as they were not claims deriving from a contract for the sale of goods (Arts. 1 and 4 CISG). The court applied German law with regards to the counterclaims and decided against the buyer on these matters.

Finally the court stated that the plaintiff was entitled to interest on its claim according to Art. 78 CISG.

Fulltext

to be scanned.}}

Source

Published in German:
- ???}}