Court of Appeal Düsseldorf addresses seller's procurement risk under Art. 79 CISG
The Court of Appeal Düsseldorf rendered a decision on Art. 79 CISG in 2019 addressing the seller's procurement risk under CISG contracts. William Euler kindly provided an English translation to make the decision more accessible.
The unknown parties had contracted for flower bulbs, when the a fire in the seller's supplier's warehouse destroyed approximately 90% of the harvest. The seller, subsequently, was not able to procure enough flower bulbs on the world-market, because the market was emptied. The prior decision by the District Court concluded that it had been impossible for the seller to procure the required flower bulbs and the Court of Appeal accepted this finding.
The Court of Appeal did not address whether the supplier of the seller should be considered a "third person" under Art. 79(2) CISG, but rather addressed the procurement risk of the seller. Since nearly the full species perished due to the fire and this event had been unforeseeable and beyond the control of the seller, the Court of Appeal upheld the District Court's assessment: The seller is exempted from liability for damages under Art. 79(1) CISG.
Oberlandesgericht Düsseldorf (Court of Appeal Düsseldorf)
Germany, 04 July 2019 – I-6 U 2/19, CISG-online 4614