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- Title
Auch ohne fixen Liefertermin kann längere Nichtlieferung in wesentliche Vertragsverletzung umschlagen.
- Abstract
The article is about a legal dispute between an Iranian company and a German company regarding the delivery of graphite electrodes. The plaintiff is demanding a refund of €4,800,000 from the defendant. There is a dispute over whether the defendant partially delivered the ordered goods and whether there were restrictions on delivery due to embargoes between China and Iran. The exact content of the agreement and the circumstances of the contract are also disputed. The plaintiff and F were unable to continue their business relationship because no foreign exchange from Iran could be transferred to a Chinese company in China. The plaintiff requested a refund of a payment made, as delivery was no longer possible due to new sanctions. The defendant stated that delivery had already begun and that they would fulfill their obligations. The plaintiff set a deadline for the defendant to deliver the goods or refund the advance payment. The defendant eventually stated that they were not interested in continuing the business relationship and claimed that the plaintiff had suffered damage. The plaintiff demanded the refund of the purchase price and filed a lawsuit. The district court dismissed the claim, but the plaintiff appealed, claiming that a purchase contract had been concluded and that the defendant had breached their obligations. The defendant defended the first-instance judgment and argued that no purchase contract had been concluded between the parties. Even if a purchase contract existed, the defendant had already fulfilled part of it by arranging for the delivery of the goods to the plaintiff. However, the plaintiff's appeal is successful, as they are entitled to a refund of the purchase price and reimbursement of pre-litigation attorney's fees. The jurisdiction of the German courts arises from the Brussels Ia Regulation, as the defendant is based in Germany. The legal relationship between the parties is governed by German law, including the UN Convention on Contracts for the International Sale of Goods. The plaintiff is entitled to the return of the payment made under the CISG. It is determined that a purchase contract has been concluded between the parties, based on the pro forma invoice, which has the presumption of completeness and accuracy. The defendant's claims that it is a sham contract, a commission contract, or an order could not question the validity of the purchase contract. The pro forma invoice had a validity period until October 3, 2018, and the delivery of the goods was to take place immediately after payment of the purchase price. The parties were already in business contact before the issuance of the pro forma invoice. The defendant confirmed the existence of delivery obligations from the pro forma invoice and the intention to fulfill these obligations. It is determined that the parties have concluded a purchase contract for 60,000 kg of graphite electrodes and another one for 300,000 kg of graphite electrodes. The defendant's claim that a sham contract was concluded to conceal another legal transaction could not be substantiated and proven. In the present case, it is about the rescission of a purchase contract between the plaintiff and the defendant. The plaintiff effectively rescinded the contract in accordance with Article 49(1) of the CISG, and the defendant did not fulfill their delivery obligation. The claim
- Subjects
IRAN; CHINA; BRUSSELS (Belgium); CONTRACTS; DELIVERY of goods; PURCHASING contracts; BOND refunding; EXPORT sales contracts; GRAVE goods
- Publication
Internationales Handelsrecht, 2024, Vol 24, Issue 2, p65
- ISSN
1617-5395
- Publication type
Article
- DOI
10.9785/ihr-2024-240204