Case number: 5
Article number: sales convention / 1(1)(b); 8; 23; 29; 53; 58; 78
Thessaurs issue:
Country of decision: Germany
Year of decision: 1990
Type of decision: Judicial decision

Case 5: CISG 1(1)(b); 8; 23; 29; 53; 58; 78
Germany: Landgericht Hamburg; 5 O 543/88 26 September 1990
Published in German: Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1991, 400
Reproduced in German: Europ„ische Zeitschrift f�r Wirtschaftsrecht (EuZQW) 1991, 188
Commented on by Reinhart, IPRax 1991, 376

An Italian clothing manufacturer demanded payment of the purchase price plus interest from a German who, according to his
account, had intended to order the textiles on behalf of a company X with limited liability but, according to the seller, had acted
under a trade name referring to a non-existent company Y. After delivery of the goods, the German had given the seller a bill
of exchange drawn on and accepted by company Y.

The court, following German international private law, applied CISG as the relevant Italian law for the formation of the contract
and for the rights and obligations of the parties to the sales contract. It determined according to article 8 that the seller could
not know that the German intended to bind company Y. Since, according to German law as the law applicable to the
formation of a company in Germany, company X had not been validly established as a legal person, the German himself was
the buyer. While, under Italian law, the giving of the bill of exchange did not free him from the payment obligation, it constituted
a modification of the contract according to article 29(1) CISG to the effect that the due date for paying the purchase price was
postponed until the maturity date of the bill of exchange. From that date on, interest was awarded under article 78 CISG at the
statutory Italian rate plus additional interest as damages under article 74 CISG assessed on the basis of the Italian discount
rate.