Case number: 1
Article number: sales convention / 1(1)(b); 35; 36; 78
Thessaurs issue:
Country of decision: Germany
Year of decision: 1991
Type of decision: Judicial decision

Case 1: CISG 1(1)(b); 35, 36, 78
Germany: Oberlandesgericht Frankfurt a.M.; 5 U 261/90 13 June 1991
Published in German: Recht der Internationalen Wirtschaft 1991, 591
Reproduced in German with brief summary in English and French: Uniform Law Review, 1991, I, 372

A sales contract between a French seller and a German buyer, concluded after the Convention's entry into force in France, was held to be governed by the Convention, since the parties had not chosen another law. It did not constitute an implied consent that the seller at first instance, in response to the buyer's statement that German law was applicable, had merely raised the question whether German or French law applied. Nor could the lack of an unequivocal response be treated as an admission since the applicable law is not a fact.

The buyer, who had alleged non-conformity of the goods without specifying in which respect, had to pay the purchase price with interest. As regards the rate of interest, the court referred to the widely prevailing view that the law of the country of the seller (the creditor) applied, but mentioned the opposite view according to which the debtor's law should apply. The court did not take a final stand on that controversy since in the case at hand the statutory rates of interest in both laws were identical (5%).