Case number: 168
Article number: sales convention / 6; 7(1); 35(1); (3); 40; 45; 74
Thessaurs issue:
Country of decision: Germany
Year of decision: 1996
Type of decision: Judicial decision

Case 168: CISG 6; 7(1); 35(1),(3); 40; 45; 74

Germany: Oberlandesgericht Köln; 22 U 4/96

21 May 1996

Original in German

Unpublished

The defendant sold a used car to the plaintiff, both parties being car dealers. The documents showed that the car was first licensed in 1992 and the mileage on the odometer was low. The sales contract included the exclusion of any warranty. The plaintiff later sold the car to a customer, who discovered that the car had been first licensed in 1990 and that the actual mileage on the odometer was much higher. The plaintiff paid damages to his customer and demanded the same amount as damages from the defendant.

The appellate court held that the plaintiff could claim damages under articles 35(1), 45 and 74 CISG. The plaintiff's damages caused by its liability to its customer could be claimed under article 74 CISG because such damages are foreseeable if goods are sold to a dealer who intends to resell them.

Even though the plaintiff could have detected the car's lack of conformity with the contract, the defendant could not avail itself of article 35(3) CISG since the defendant knew the actual age of the car and thus acted fraudulently. The appellate court held that article 35(3) CISG could not be relied on by a fraudulent seller, referring to the general principles embodied in articles 40 and 7(1) CISG. According to the appellate court, even a very negligent buyer deserves more protection than a fraudulent seller. Although, the exclusion of any warranty was possible under article 6 CISG, it was held to be invalid in this case. The appellate court found that the substantial validity of such a clause was not governed by the CISG. In this case, this question was governed by German law, according to which an exclusion of warranty is invalid if the seller acts fraudulently.