Case number: 165
Article number: sales convention / 1(1)(a); 49(1); (2); 84(2)
Thessaurs issue:
Country of decision: Germany
Year of decision: 1995
Type of decision: Judicial decision

Case 165: CISG 1(1)(a); 49(1),(2); 84(2)

Germany: Oberlandesgericht Oldenburg; 11 U 64/94

1 February 1995

Original in German

Unpublished

The Austrian plaintiff, a furniture manufacturer, agreed to manufacture a leather seating arrangement for the German defendant. The defendant sold the furniture to one of its clients, who discovered that the furniture did not conform with the contract. The defendant required the plaintiff to remedy the lack of conformity by repair. Yet, even after the furniture had been repaired, the defendant still found the furniture not to conform with the contract and declared the contract avoided. The plaintiff demanded payment including interest amounting to 13%.

The appellate court found the CISG to be applicable to the contract since both parties were located in Contracting States (article1(1)(a) CISG). It was held that the plaintiff did not have a payment claim against the defendant since the repaired furniture did not conform with the contract and this amounted to a fundamental breach of the contract which gave the defendant the right to declare the contract avoided (article 49(1)(a) CISG).

In addition, the appellate court found the defendant to have declared the contract avoided within a reasonable time (article 49(2)(b) CISG), even though approximately five weeks had elapsed between the delivery of the repaired furniture and the declaration of avoidance. The plaintiff alleged that according to its general terms and conditions of trade the defendant was obliged to declare avoidance within five days. However, the appellate court found that the plaintiff's general terms and conditions of trade did not apply when a repair had already taken place.

The appellate court also denied a claim for all benefits of possession (profits and advantages of use), which the defendant derived from the furniture in accordance with article 84(2) CISG, since such benefits were deemed not to exist in this case.