Case number: 7
Article number: sales convention / 1(1)(b); 47; 49; 74; 78
Thessaurs issue:
Country of decision: Germany
Year of decision: 1990
Type of decision: Judicial decision

Case 7: CISG 1(1)(b); 47; 49; 74; 78
Germany: Amtsgericht Oldenburg in Holstein; 5 C 73/89 24 April 1990
Published in German: Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1991, 336
Commented on by Enderlein, IPRax 1991, 313

A German fashion retailer and an Italian clothing manufacturer concluded a contract for the sale of fashion goods, with the
specification "autumn goods, to be delivered July, August, September +-". When a first delivery was attempted on 26
September, the buyer refused to accept the goods and returned the invoice on 2 October claiming expiry of the delivery
period. The parties argued about the meaning of the above specification, relying on different additional factors allegedly known
to both parties.

The court applied CISG as the law of the seller's country but took also into account German domestic law for filling gaps on
questions of performance. The court awarded the seller the full sales price, including interest at the statutory rate in Italy plus
additional interest as damages. The seller's claim was held to be justified since delivery was tendered during the agreed delivery
period. Even if, as alleged by the buyer, during each of the three months one third of the goods had to be delivered, the buyer
did not effectively avoid the contract by refusing acceptance of the goods without having fixed an additional period in the
previous cases of non-delivery.