A breach of contract is essential in terms of Art 35 CISG, if its fulfillment, the buyer is attributable primarily by the weight of the infringement, so the goods can not be used

a) For the assessment, whether a fundamental breach exists, is, if the lack of conformity to a deviation from the contractually agreed (Art. 35 Abs. 1 CISG) or some other man-gelhaftigkeit (Art. 35 Abs. 2 CISG) based, not only the severity of the defects crucial, but rather, whether its fulfillment, the buyer is attributable primarily by the weight of the infringement. Can he purchased goods, albeit with restrictions, permanently nut-zen, is a fundamental breach is in the negative often (Continuation of BGH, Judgment of 3. April 1996 – VIII ZR 51/95, BGHZ 132, 290, 297 ff.).
b) When testing, whether a breach by the seller can account for the Erfüllungsin-interest of the buyer substantially, remedy is primarily due to the measures party agreements. Absence of explicit agreements Club, is to take mainly due to the tendency of the UN Sales Convention consideration, avoidance of the contract in favor of other relevant kom-
coming remedies, push back the particular spoilage or damage compensation-rate. The rescission is to the buyer only as a last resort (ultima ratio) be available, to respond to a Vertragsverlet-tion of the other party, which is so important, that they can relate mainly be He-filling interests (following BGH, Ur part of 3. April 1996 – VIII ZR 51/95, cit).

JUDGMENT BGH VIII ZR 394/12 from 24. September 2014

CISG Art. 25, Art. 49 Abs. 1 Buchst. a

a) For the assessment, whether a fundamental breach exists, is, if the lack of conformity to a deviation from the contractually-disclosed nature (Art. 35 Abs. 1 CISG) or some other man-gelhaftigkeit (Art. 35 Abs. 2 CISG) based, not only the severity of Mens-gel crucial, but rather, whether its fulfillment, the buyer is attributable primarily by the weight of Vertragsver-injury. Can he purchased goods, albeit with restrictions, permanently nut-zen, is a fundamental breach is in the negative often (Continuation of BGH, Judgment of 3. April 1996 – VIII ZR 51/95, BGHZ 132, 290, 297 ff.).
b) When testing, whether a breach by the seller can account for the Erfüllungsin-interest of the buyer substantially, remedy is primarily due to the measures party agreements. Absence of explicit agreements Club, is to take mainly due to the tendency of the UN Sales Convention consideration, avoidance of the contract in favor of other relevant kom-
coming remedies, push back the particular spoilage or damage compensation-rate. The rescission is to the buyer only as a last resort (ultima ratio) be available, to respond to a Vertragsverlet-tion of the other party, which is so important, that they can relate mainly be He-filling interests (following BGH, Ur part of 3. April 1996 – VIII ZR 51/95, cit).
CISG Art. 4, Art. 7 Abs. 2
The offset of mutual claims on money, originate from the same providers under the CISG contract, assessed according to convention internal transfer standards. Is a consequence of the implied or expressly to-explanatory off, that the mutual money Forde-ments – if no offsetting exclusions have been agreed – extinguished by offsetting, in so far as they agree in magnitude ('s Further development of BGH, Case 23. June 2010 – VIII ZR 135/08, World Cup 2010, 1712 Rn. 24; from 14. More 2014 – VIII ZR 266/13, World Cup 2014, 1509 Rn. 18).
BGH, Judgment of 24. September 2014 – VIII ZR 394/12 – OLG Zweibrücken
LG Zweibrücken
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The VIII. Civil Division of the Federal Court from the hearing 24. September 2014 by the presiding judge, Dr. Milger, the lessons spillways Dr. Hessel and Dr. Fetzer and the judge Dr. Bunger and Kosziol
hereby:
On appeal by the applicant, the judgment is the 8. Civil Division of the Court of Zweibrücken 29. October 2012 the cost point and be released immediately, as has been recognized in respect to the claim for the expense of the applicant.
On the cross-appeal, the defendant, the prespecified judgment is so far removed, as the defendant is to pay 97.684,35 € has been sentenced plus interest.
In the scope of the waiver is the case for a new hearing and decision, including costs of Nichtzulassungsbe-peal- and the revision process, referred back to the Court of Appeal.
As of right
Facts:
The in P. resident defendant, a supplier for the automotive indus- try-, is mass-produced car parts made of plastic ago. For the ever-Weil parts to be delivered it requires specially designed tool, which include forms, is pressed into the liquid plastic in order to exact manu-treatment of the parts. Such as your preferences to be produced
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Injection molds since it referred 1998 by the resident in Hungary Her-stel lerin, the legal predecessor of the applicant.
In carrying out the last, in the years 2000 and 2001 by the defendant issued a supply contract, there were disputes. The defendant alleged with respect to the operation of the mission numbers 40117, 40118, 40686, 40086/40087 ordered and delivered the relevant tools, the presence of defects. After the applicant alleged defects could not resolve to the satisfaction of the defendant th, explained this finally the 21. January 2002 in the agreements with the order numbers 40117 and 40118 the “Cancellation of the contract” and also claimed damages.
With respect to a further agreement with the order number 40174 the defendant had been on 31. October 2001 – before delivery of the tool – the “Cancellation of the contract” explained due to default and also desires damage compensation Rate. They had initially informed the applicant, this would no longer supply. Later she took on 26. November 2001 tool nevertheless offered to and rebuked in connection thereto the presence of defects.
In the following period, the defendant resolved in all the tools complained of her defects himself and then put them in their production a.
From the disputed five orders the applicant IMP EXP-including even a remuneration of 178.472,54 € desires, from which it followed the überwie-ing part in the court of appeal. The defendant ent-up, compensation claims were omitted, insofar as it affects “Cancellation of the contract” have explained. Moreover, it has in the reply to the statement-opposition to that claim with their – the reason for and the amount in dispute – Expenses for the repair of the tools supplied (To-
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tragsnummern 40117, 40118, 40174, 40686 and 40086/40087) totaling 552.226,53 € explained. With regard to the contract with the Auftragsnum-mer 40686 it also refers to a contractual agreement, where-according to them the remuneration due to a delay in delivery by a total of 13.392 € herabset-zen and could also explain the extent offsetting. It has also – ge-based on another contractual relationship (Order number 40603) – Counterclaim for payment of 154.278,04 € (plus interest) raised.
The District Court – under dismiss the remainder – the action in the amount of 177.472,47 € plus interest and the counterclaim in the amount of 46.169,67 € plus interest granted. On appeal by the defendants, the modified Oberlan-Higher Regional Court, the judgment of the district court both in terms of action and in terms of the counterclaim. This is the cause of action only in relation to the rest of the remuneration of the contracts with the order numbers 40686 and 40086/40087 totaling 97.684,35 € plus interest instead gege-ben. With regard to its contractual job numbers 40117, 40118 and 40174 asserted purchase price claims it dismissed the action. The counterclaim of the defendant it has totaling 101.291,47 € upheld.
The Senate has approved the complaint of the applicant Revi-sion, as far as the Court of Appeal has recognized to their disadvantage in terms of the claim. In contrast, the Senate rejected the Nichtzulassungsbe-peal, so far as the applicant's counterclaim for payment of 101.291,47 Has been fined €. In its appeal, the applicant seeks the scope of the statutory authorization, the restoration of the country court judgment. The defendant has appealed against this cross-appeal, striving with which they un-th citing the ENTIRE her off declared Klageabwei-sung.
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Reasons for the Decision:
Both the revision of the applicant – in so far as they are opened – and the cross-appeal, the defendants have success.
I.
The Court of Appeals, the extent of the audit procedures still of interest, carried out substantially:
The delivery ratios in question were outside the Convention-men of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Assuming were the compensation claims of the applicant from the job fair number. 40117, 40118 and 40174 accounts, because the loading complained under Article. 49 Abs. 1 Buchst. a CISG legitimately addressed to the applicant by letter dated-clotting 21. January 2002 and from 31. October 2001 (Art. 26 CISG) had declared the contract avoided and therefore by type. 81 CISG is exempt from their obligations under.
The numbers to the order 40117 and 40118 supplied tools are inadequate for the outcome of the first instance of inquiry referred to in Article. 35 Been CISG. These were considered in each case to a fundamental breach of contract within the meaning of Article. 25 CISG. Was decision-DEND this, whether the expectations of the buyer would be disappointed because of schwerwie-ing violation of the seller's obligations such, that his interest in the performance of the contract attributable. Thus, with regard to the subject matters under the order numbers 40117 and 40118 delivered Tools. The se are vitiated each with significant deficiencies and not operational turned-sen. The applicant was not, despite several attempts to rectify suc-gen, each a-function- manufacture and operational tool. Further
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be taken into account, that the defendant – as the applicant was aware of due to the ge-led extensive correspondence – has in turn been because of existing supply obligations to their customers under time pressure. Since in this situation the confidence of the defendants had been shaken to the competence of the applicant's right, standing of an essential union-infringement can not be affected, that the defects were remedied.
As regards the supply 40117 lay a proper Mängelrü-ge within the meaning of Article. 39 CISG. Nor can there be, whether a ord-voltage contemporary complaint had been made. For according to type. 40 CISG also not timely or not associated defects harmless, if the Verkäu-fer the facts, on which is based the lack of conformity, have known or could not have been unaware can be and this was not the buyer of-fenbart. That is true in case of dispute. The applicant had the IN ANY-where deficiencies “leap out” must, so that it could not have been over here in un-knowledgeable.
Is the avoidance of the contract – by letter of 21. January 2002 – intra-half still a reasonable period within the meaning of Article. 49 Abs. 2 Buchst. he was b-clears CISG. Your stand the lack of a (other) Grace period by type. 47 CISG does not preclude, because such is necessary where a substantial Ver-Treaty infringement. Rescission of the contract will ultimately not precluded by, that the defendant – staggered by it in the meantime in a functional state – Tools could not return in unchangeable state-tem. Because harmful in their regard only negative changes; Improvements of the products, however, did not lead to the loss of the repeal law. So things were here. The defendant had improved the work-tools. In addition, at the relevant time was the dispatch of
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Have been possible declaration of avoidance return. Whether they will un-possible later, is irrelevant.
Also in terms of the order number 40174 supplied tool was the defendant was entitled to avoid the contract. You have – prior to delivery of the goods – by letter of 31. October 2001 the back-occurs explained due to default and thus clearly expressed, that she was no longer willing to settle for breach of contractual obligations of the applicant. The still on 26. November 2001 supplied tool have exhibited significant deficiencies despite six complaints and more protracted than a year trying to remedying; in particular, the electrical and hydraulic equipment had not been fully prepared for this tool. That after delivery no complaint had been made, is in accordance with Article. 40 CISG harmless, because it around “eye-catching” Defects had acted, over which the applicant was unable to have been unaware of. Therefore, the defendant is freed again for effective contract suspension of the payment of the remaining compensation (Art. 81 CISG).
However, the applicant is entitled to claim payment of remaining remu--tions in the amount of 97.684,35 € plus interest against the defendant from the Ver-contractual relation- ships with the order numbers 40686 and 40086/40087 to. We-of the defendant canceled the two contracts were still the remu--refund claims extinguished by offsetting compensation claims due to defect / repair. The defendant has not demonstrated in the context of action taken in the first instance inquiry, that her through of top-up- or repair work had incurred costs in the amount asserted in each case. For the estimation of a minimum damage (§ 287 Code of Civil Procedure) lacked a secured basis.
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II.
This assessment holds legal investigation on several points was not.
A. The revision of the applicant
1. With the given by the Court of Appeal reasons, neither the purchase price of any claims asserted by the applicant (Art. 53 CISG) from contracts with the order numbers 40117 and 40118 nor the purchase price receivable (Art. 53 CISG) under the contract with the order number 40174 ver-neint Werden. Contrary to the opinion of the court, the defendant has not canceled the contracts referred to effective. The contracts No.. 40117 and 40118 the conditions of the coming-alone consider provision of Art. 49 Abs. 1 Buchst. a CISG does not satisfy, because no material-Liche infringement (Art. 25 CISG) present. Upon delivery, the up-order number 40174 is neither a fundamental breach of contract nor a non-delivery given despite prolongation (Art. 49 Abs. 1 Buchst. a and b CISG) there is still a breach of contract on the type of anticipated. 72 Abs. 1 CISG.
a) As the court below assumed correct and also the revision does not deny, fall under the contested supply agreements with the UN Convention on Contracts for the International Sale of Goods (CISG). The parties have their places of business in different States, both parties to the Convention are (Art. 1 Abs. 1 Buchst. a CISG). That the applicant had to produce the goods to be delivered even, än-changed nothing as to the applicability of the UN Sales Convention. For the unified sales law is not only to contracts of sale, but according to type. 3 Abs. 1 CISG also apply to contracts for the supply to be manufactured or produced Wa-ren, unless, the customer has a substantial part of for
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the manufacture or production of substances necessary even available ge-sets. Accordingly, subcontracting agreements are also sales contracts gleichzustel-len, If the supplier manufactures the goods to be delivered according to specifications and instruc-tions of the client (vgl. OLG Oldenburg, Their 2008, 112, 117; OLG Frankfurt am Main, NJW 1992, 633; Schlechtriem / Schwenzer / Ferrari, CISG, 6. Ed, Art. 3 Rn. 10; MünchKommHGB / Benicke, 3. Ed, Art. 3 CISG Rn. 2, 4 mwN). That the defendant had accepted the obligation, a substantial part of – required for production of the ordered tools – Contribute materials, is neither determined nor visible. The applicability of the UN Sales Convention to the present case concluded contracts is closing-lich also not precluded by the fact, that the defendant has not controlled in-after delivery of tools, some components for the purpose of corrective action. For this shall the contract statute, which is basically determined by the date of the contract, not affected (Staudinger / Magnus, BGB, Neubearb. 2013, Art. 3 CISG Rn. 17).
b) Legal error free, the appellate court also found, that by the applicant under the order numbers 40117, 40118 and 40174 geliefer th tools nonconforming within the meaning of Article. 35 Abs. 1, 2 Buchst. a, b CISG were, because the defendant did not – as owed – has received appropriate functional tools for their manufacturing process. This Feststellun-gen does not attack the revision of.
c) Affected by errors of law, however, is the assumption of Beru-fung Court, the defendant is in accordance with Article. 49 Abs. 1 Buchst. a CISG because of a fundamental breach of contract within the meaning of Article. 25 CISG Aufhe-tender contracts with order numbers 40117 and 40118 entitled ge-beings and therefore inadmissible under article. 81 CISG released from their obligation to pay. One
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fundamental breach is in the negative, despite these shortcomings by the Court of Appeal of the tools supplied.
aa) Art. 49 Abs. 1 Buchst. a CISG entitles the purchaser only to terminate the contract, if the failure of the seller be established pursuant to the contract or the terms of the UN Sales Convention obligation a fundamental breach of contract within the meaning of Article. 25 CISG is. Essentially a breach of contract is the legal definition of the type. 25 CISG, if it is of such detriment to the other party, that escapes substantially, what they would have under the contract may expect, unless, the party in breach did not foresee this episode and egg-ne reasonable person of the same kind would not have foreseen such a result in the same circumstances.
(1) The material contractual interest can in principle be affected by Ver-contractual obligations of any kind disadvantageous in that sense, indifferent, if they have a major- constitute or a secondary obligation or quality, Quantity, Concerning delivery date or other terms of settlement (Senate judgment of 3. April 1996 – VIII ZR 51/95, BGHZ 132, 290, 297 mwN). You may also be in the delivery of non-conforming goods (Senate judgment of 8. March 1995 – VIII ZR 159/94, BGHZ 129, 75, 79). Essentially a breach of duty is then, if he so much affecting the legitimate expectations of the other Contracting Party, that their interest attributable to the performance of the contract is essentially (vgl. Staudinger / Magnus, cit, Art. 25 CISG Rn. 9, 13; Münch-KommBGB / Huber, 6. Ed, Art. 25 CISG Rn. 12; Honsell / Gsell, CISG, 2. Ed, Art. 25 CISG Rn. 12 – 16; Enderlein / Maskow / straw Bach, International Sale of Goods, Art. 25 Note CISG. 3.1.; Ferrari, Their 2005, 1, 4; each with further references). The assessment must be primarily on the measures taken party agreements (Senate-
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judging from the 3. April 1996 – VIII ZR 51/95, cit; Staudinger / Magnus, loc. 13; Schlechtriem / Schwenzer / Schroeter, cit, Art. 25 Rn. 21).
Absence of express agreements for materiality, is in accordance ge-type. 25 CISG assistants to be exam, whether a breach by the seller can account for its fulfillment, the buyer substantially, to take mainly due to the tendency of the UN Sales Convention consideration, the Ver-rescind the agreement in favor of other relevant remedies, in particular the reduction or compensation (Art. 50, 45 Abs. 1 Buchst. b CISG) push back (Senate judgment of 3. April 1996 – VIII ZR 51/95, cit S. 298). The reversal of the buyer to possible-ness only as a last (ultima ratio) be available, to respond to a breach of contract by the other party, which is so important, that it can be omitted Erfüllungsinte-ress essentially (Senate judgment of 3. April 1996 – VIII ZR 51/95, cit S. 298 f. mwN; Swiss Federal Tribunal, Their 2010, 27, 28; Austrian Supreme Court, Their 2012, 114, 116; OLG Hamburg, Their 2008, 98, 100).
(2) For the assessment, whether a breach of contract in Art. 25 Reached CISG presupposed severity, are ultimately the particular circumstances of the case decisive (Senate judgment of 3. April 1996 – VIII ZR 51/95, cit S. 299; Swiss Federal Tribunal, cit S. 28 f.; Austrian Supreme Court, cit S. 117; Soergel / Lüderitz / catchy / Budzikiewicz, BGB, 13. Ed, Art. 25 CISG Rn. 2; Staudinger / Magnus, cit; Enderlein / Maskow / straw Bach, supra note. 3.2.; Ferrari, cit). However, for certain groups of cases can be set up some guidelines.
Due the lack of conformity – as here – on a deviation from the contractually agreed (Art. 35 Abs. 1 CISG) or some other deficiency (Art. 35 Abs. 2 CISG), is not alone on the swing-
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re remedy the deficiencies (vgl. Senate judgment of 3. April 1996 – VIII ZR 51/95, cit; Swiss Federal Tribunal, SZIER 1999, 179; Ferrari, cit S. 7; Honsell / Gsell, loc. 43; each with further references), the decisive factor is, whether its fulfillment, the buyer is attributable primarily by the weight of the infringement (OLG Hamburg, cit S. 100). The defective goods must therefore be largely without benefit to the buyer; he can, albeit with restrictions, use, is a fundamental breach of contract have to be negated much-fold (OLG Hamburg, cit).
Accordingly, a lack inter alia then basically no fundamental breach of contract, when – despite its deficiency – an otherwise processing or marketing of goods in the ordinary business dealings Ge, where appropriate, at a discount, is possible and reasonable without disproportionate effort-even (Senate judgment of 3. April 1996 – VIII ZR 51/95, cit S. 298; vgl. also Swiss Federal Court, SZIER 1999, 179; Their 2010, 27, 28 f.; MünchKommBGB / Huber, 6. Ed, Art. 49 CISG Rn. 39; Herber / Czerwenka, International Sale of Goods, Art. 25 CISG Rn. 7; Soergel / Lüderitz / catchy / Budzikiewicz, cit; Soergel / Lüderitz / Schussler-Long-Heine, cit, Art. 49 Rn. 3; Staudinger / Magnus, cit, Art. 25 CISG Rn. 12; Ferrari, cit S. 7).
The same applies, if the defect – by the seller, under-the Umstän but also by the buyer (vgl. Schwenzer, CISG-AC Opinion No. 5, Rn. 4.5) – can be eliminated with reasonable effort within a reasonable period (vgl. Swiss Federal Tribunal, Their 2010, cit; Austrian-shear Supreme Court, Their 2012, 114, 117 f.; MünchKommBGB / Huber, loc. 38; Saenger in Ferrari/Kieninger/Mankowski, International Contract Law, 2. Ed, Art. 49 CISG Rn. 7; Honsell / Schnyder / Straub, cit, Art. 49 Rn. 23a; Staudin-giving / Magnus, cit, Art. 49 Rn. 14; Ferrari, cit; [Removal by buyer];
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Botzenhardt, The interpretation of the concept of fundamental breach in the CISG, 1998, S. 221; aA Neumayer, RIW 1994, 99, 106). Against the existence of a fundamental breach of contract within the meaning of Article. 25 CISG can finally speak of the fact, that the buyer – certain not for resale – has defective product for the intended purpose in the long term use and thereby shown, that it was not without interest for him (OLG Hamburg, cit).
bb) Whether measured against these principles an essential Vertragsver-injury within the meaning of Article. 25 CISG is present, to determine in the first place the trial judge (Senate judgment of 3. April 1996 – VIII ZR 51/95, cit). The appreciation of the Court of Appeal from the Court of Appeals may only restricted to law- be reviewed and procedural errors, Thus, in particular on, whether the court misinterpreted the relevant legal standards of judgment, has the question submitted facts not exhaustive appreciated or violate thought-law and general empirical propositions. Such legal errors are present here.
(1) As the revision rightly complains, the Court of Appeal in the A-classification of defective deliveries (Order numbers 40117 and 40118) as a material breach within the meaning of Article. 25 CISG does not take sufficient account, that the CISG proceeds from the primacy of contract maintenance (vgl. Swiss Federal Tribunal, cit S. 28) and therefore the purchaser to rescind the contract – as the most severe penalty – only provides, where the breach its fulfillment, has substantially omit. It has decisive in its assessment of the deficiency haftigkeit of the goods supplied, on the failed Nachbesserungsver Searching the applicant, on the existing delivery obligations due to own deadline pressure of the defendants and their shattered confidence in the Kom-
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parked competence of the applicant. Thus, it has not – as necessary – taken all the circumstances of the case in the view. Rather, the Court of Appeal has an inte-est of the defendant at a “immediate termination of the contract” affirmative, attach without the fact decisive weight, that the defendant before the relevant date of access (Art. 26 CISG) of her “Resignation” from 21. January 2002 did not intend, return the defective tools on the applicants-rin, but the remaining defects himself came to fix the tools and then began the long term in their production. These points is contrary to the assessment of the Berufungsge-court of crucial importance.
(2) Since no other findings can be considered, can decide the Se-nat itself, whether a fundamental breach of contract within the meaning of Article. 25 CISG was present, the defendant to the contract under Art. 49 Abs. 1 Buchst. a legitimate CISG. This is despite the significant Mens-gel, of unsuccessful attempts to rectify the applicant, to the tight schedule of the defendant and the conviction gained from it, the applicant would not remedy the deficiencies in time, not the case. For occupy the actions of the defendant and the described her motivation to complete the tools in-house, how does the revision rightly claims, that the interest of the defendant at any time on a rear-settlement of the contracts (with the legal consequences of style t. 82 ff. CISG) was directed, but on the contrary, the use of the supplied, albeit imperfect tools to the contractually agreed-use purpose. That the damages claims asserted – as the Revi-sion leads reply – rise over-the purchase price of the applicant by far, is irrelevant. Because the defendant obtained by her vorgenom-mene defect and the satisfaction of the claims of their ge-made damage claims – provided that they are entitled – ultimately in
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Essentially, the, what they could of the contracts may expect (vgl. to this point of the Austrian Supreme Court, CISG-online No. 2399, extent in RoW 2013, 124 not published; Schlechtriem / Schwenzer / Müller-Chen, cit, Art. 49 CISG Rn. 7). It follows that the interest of the defendant in the implementation of the two contracts is not accounted. Since they lack the existence of a fundamental breach not repealing contracts with the order numbers 40117 and 40118 was entitled, are the results from these supplies purchase price claims the applicant to determine,. 81 Abs. 1 CISG accounts.
d) With the success of revision alleges further, that the Court of Appeal and in terms of the contract with the order number 40174 error of law is-taken has, the purchase price liability of the defendants had lapsed because of more-common contract termination. The Court of Appeals in this case – how does the revision reply that – a ground for annulment (probably) not only in the delivery delay is invoked by the defendant, but also seen in a year ongoing repair work on off-delivery of the tools and the deficiency ultimately on delivery not beho-enclosed. It has not made sufficiently clear for a, whether it's at the affirmed by him cancel the contract type. 49 Abs. 1 Buchst. a CISG (fundamental breach of contract) or in kind. 49 Abs. 1 Buchst. b CISG (Failure to deliver within a set deadline) has measured. On the other hand, it has overlooked, that the defendant their Vertragsaufhe-tion declaration from 31. October 2001 both with a view to their already elapsed Delivery (“for delay”) has established as well as existing at the time-sem defects, the willed by her Ver-rescind the agreement but of course not a case of subsequent extradition on 26. November 2001 could still count given defectiveness.
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aa) Neither a possible delay in delivery is still the undisputed occurred before delivery of the tools and defects at the time of the notice of termination to-gangs (Art. 26 CISG) from 31. October 2001 already made futile attempts to rectify the applicant satisfy the conditions of – Only eligible – Art. 49 Abs. 1 CISG. A contract avoided because of anticipated breach of contract by Type. 72 Abs. 1 CISG differs from the outset. This provision serves only to protect against a future breach of contract and therefore do not provide a at Ver-contract violations, the – made here as claimed by the defendant – occur at or after maturity (Senate judgment of 15. February 1995 – VIII ZR 18/94, NJW 1995, 2101 Section II 3a; vgl. also judgment of the Senate 3. April 1996 – VIII ZR 51/95, cit S. 296).
Although on appeal in favor of the defendant assumed the existence of a delay in delivery of the applicant, because the Court of Appeal on the existence of an alleged by the defendant, by the applicant but by reference to an allegedly delayed by the defendant rendered wholesale (Art. 80 CISG) disputed delay in delivery has not taken any final conclusions. However, it is not a fundamental breach under Article. 49 Abs. 1 Buchst. a CISG currently the defendant before the Aufhebungser-declaration unsuccessfully grace under way. 47 Abs. 1 Set CISG, which he successfully-free process them according to type. 49 Abs. 1 Buchst. b CISG would be-entitled repealing.
(1) As in nature. 49 Abs. 1 CISG is expressed, , the mere delivery delay for taken in rule no significant Ver-contractual injury within the meaning of Article. 49 Abs. 1 Buchst. a, Art. 25 CISG (Schlechtriem / Schwenzer / Müller-Chen, cit, Art. 49 CISG Rn. 5; Münch-KommBGB / Huber, cit, Art. 49 Rn. 34; MünchKommHGB / Benicke, cit,
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Art. 25 CISG Rn. 20; Ferrari, cit S. 7; OLG Dusseldorf, CISG-online No. 92 and no. 385; each with further references). Rather, it is a significant Vertragsverlet-tion regularly only assumed in a delay in delivery, when the A-attitude is a certain delivery time for the buyer of special interest (vgl. Schlechtriem / Schwenzer / Müller-Chen, cit; Staudinger / Magnus, cit, Art. 49 Rn. 12; MünchKommBGB / Huber, cit; Saenger in Ferrari/Kieninger/ Mankowski, cit, Art. 49 Rn. 2; Ferrari, cit S. 7 f.). Upon the addition of other circumstances, however, may also in other cases, the excess over the Lie fertermins in individual cases it rich in the weight of a material breach (Schlechtriem / Schwenzer / Müller-Chen, further references cited above). This has the Beru-fung court is detected in the approach, but not sufficiently taken into account, that was solely the situation upon receipt of notice of termination (Art. 26 CISG) shall prevail and later developments (here: Shortcomings in the Auslie-livery on 26. November 2001) have to be disregarded.
(2) If not explicitly approved by the appellate court annulment under Article. 49 Abs. 1 Buchst. b CISG initially set up a non-delivery when due (vgl. MünchKommBGB / Huber, cit, Art. 49 CISG Rn. 48) and dane-ben a success elapsed period of grace within the meaning of Article. 47 Abs. 1 CISG ahead, So a request of the buyer to pay, which is connected to the setting of a certain period (OLG Dusseldorf, CISG-online No. 385; MünchKommBGB / Huber, cit, Art. 47 CISG Rn. 9; Honsell / Schnyder / Straub, cit, Art. 47 CISG Rn. 18 ff.; Schlechtriem / Schwenzer / Müller-Chen, cit, Art. 47 Rn. 4). The existence of these conditions, the Berufungsge-reporting has not taken any findings; overridden lecture in the Tatsachenin punching does not show the revision reply to this.
bb) Regardless of, the right of the applicant to purchase price payment would also not in accordance with Article. 81 CISG accounts, if the contract by
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the declaration of 31. October 2001 had been effectively canceled. Even if this should have been the case, the parties would later due to the (on 26. November 2001) still made delivery of the tools by the applicant and the subsequent acceptance of the tools as a service owed by the defendant that entered into the reversal stage contract under Article. 29 Abs. 1 CISG changed and re-established the ur nal contract implied, permitted by Art. 11 Abs. 1, 2 BGB aF is possible (vgl. Schlechtriem / Schwenzer / Müller-Chen, cit, Art. 49 Rn. 22). This may be the Senate, as other matters not considered com-men, judge for yourself.
cc) That the tool after shipment in serious shortcomings had, could – As already stated – not the subject of Aufhebungser-declaration of 31. October 2001 be, but the defendant had at best a renewed contract termination (now because after shipment IN ANY-ferent defects) to authorize. According to the findings of the appellate court but no new cancellation statement is after the delivery of the tool is. Moreover, in view would not be made to the self made after elimination of defects using the tool in the production process on the defendant to the extent a fundamental breach of contract. In this regard, the remarks on the contracts with the Job Numbers 40117 and 40118 be referred.
2. The Court of Appeal also does not arise from on-their reasons to be correct is (§ 561 Code of Civil Procedure).
The defendant against the plaintiff from contracts with the order numbers 40117, 40118 and 40174 asserted Kaufpreisan-claims (Art. 53 CISG) Although with – in excess of the purchase price claims -
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Counterclaims netted for alleged defect removal expenses for all tools and with respect to the contract with the order number 40686 also appointed on a contractual agreement, after which it the remuneration due to a delay in delivery by a total of 13.392 € could down-set, and also explains the extent offsetting. Whether these counterclaims-ments are made, however, needs further tatrichterlicher findings.
The Court of Appeal has – from his point of logical – on the alleged counterclaims on here in question deliveries with the order numbers 40117, 40118 and 40174 does not deal. Rather, it is the existence of such counterclaims only in conjunction with-hang – the subject of the cross-appeal, forming – Compensation claims the applicant regarding the operation of the mission numbers 40686 and 40086/40087 molds supplied and tested here – will still be present later – procedural error of the process material not out-draws and consider the evidence collected is insufficient. The existence of such counterclaims can not be excluded after the court of appeal is to be based arguments.
a) The defendant has made an error of law on the free movement and to the extent not contested in for revision-onsverfahren findings of the court on egg-generated cost improvements to the supplied tools. In that regard, it is in accordance with Article. 45 Abs. 1 Buchst. b, Abs. 2, Art. 74 CISG basically after a (strict) To claim for reimbursement of he-ford variable and reasonable expenses for the defect repaired by it and ready-made tools. The non- performance or improper performance of the contract, the buyer – if the seller has no right to subsequent performance in accordance with Article. 48 CISG entitled – entitled, even take appropriate measures to fulfill the corresponding appropriate location
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and bring about the seller – within the limits of Article. 77 CISG – for the costs as damages in account (vgl. Senate judgment of 25. June 1997 – VIII ZR 300/96, NJW 1997, 3311 Section III 2; Austrian Supreme Court, Their 2002, 76, 80; Honsell / Schnyder / Straub, cit, Art. 46 CISG Rn. 109 ff.; Staudin-giving / Magnus, cit, Art. 77 CISG Rn. 15; Schlechtriem / Schwenzer / Müller-Chen, cit, Art. 46 CISG Rn. 46; Schönknecht, The self-performance in commercial law, 2007, S. 123 ff.).
aa) That all of the mission numbers 40117, 40118, 40174, 40686, 40086/40087 molds supplied at delivery were also deficient, has noted the Court of Appeal err in law. This is not attacked by revision and cross-appeal.
bb) The claim for damages the defendant is – thinks differently than the revision – does not oppose it, that the defendant after the delivery of the defective tools, the applicant has not re-up calls to repair. Because the defendant was not obliged to take such a step for several reasons.
(1) The revision ignores already, that the buyer after – deviating from the Law of Obligations of the Civil Code – Conception of the UN Sales Convention is not required, to give the seller by themselves the opportunity to rectify. Rather recognizes type. 46 Abs. 2, 3 CISG the Buyer only the right (“can”), to require under certain conditions replacement or repair. An obligation to do so will not be imposed on the purchaser, however,. Instead granted the CISG in Art. 48 Abs. 1 CISG reversed the seller the right to remedy (“can be-lift”). The seller, wishes to make use of this right, has the prospective buyer of his intention and readiness, the defect within a reasonable
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Time to fix his money, be informed. This is in Art. 48 Abs. 1 CISG does not expressly provided, but arises as Oblie-nity from the way in. 7 Abs. 1 CISG enshrined principle of good faith (MünchKommBGB / Huber, cit, Art. 48 Rn. 8a). The seller of this obligation does not comply, he loses his supplementary performance by Type. 48 Abs. 1 CISG (MünchKommBGB / Huber, cit).
That the applicant the defendant has indicated its willingness to remedy the defect within a reasonable period, The Appellate Court did not Festge-sets. Rather, the applicant by the mere announcement in writing 30. January 2002 content, First an action plan for all gelation-plied tools together with the aim of, to process them in collaboration with the defendant to mutual satisfaction. Overridden pleadings in the trial courts does not point to the revision.
(2) Regardless of, that is already not found, that the applicants-rin has fulfilled their duty not, would have a (re) Remedy for the defendant to unreasonable delays or unreasonable Unannehm-options within the meaning of Article. 48 Abs. 1 Out CISG.
(a) Whether the type of. 48 Abs. 1 CISG established acceptability threshold is exceeded, can be assessed only by reference to the circumstances of the individual case (Schlechtriem / Schwenzer / Müller-Chen, cit, Art. 48 CISG Rn. 9) and is primarily a matter for the trial court. Unreasonableness does not only starts, when associated with the repair drawbacks to a fundamental breach of contract within the meaning of Article. 25 Would lead CISG (Schlechtriem / Schwenzer / Müller-Chen, cit; Staudinger / Magnus, cit, Art. 48 CISG Rn. 14; Soergel / Lüderitz / Schussler-Langeheine, cit, Art. 48 CISG Rn. 7). Rather unreasonable inconvenience can lie in particular, that the
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Buyers damages actions of its customers or threaten the Verkäu-fer, has repeatedly reworked in vain, obviously unprofessional going (Schlechtriem / Schwenzer / Müller-Chen, loc. 11; MünchKomm-HGB / Benicke, cit, Art. 48 Rn. 6; Honsell / Schnyder / Straub, cit, Art. 48 Rn. 25; aA Schlechtriem/U. Huber, CISG, 3. Ed, Art. 48 Rn. 14). As evaluating the judge of fact-gung revision is legally restricted then checked, if he disregarded the relevant legal standards of judgment, has the question submitted facts not exhaustive appreciated or violate Denkgeset-ze and overall experience sets.
(b) Judged by these standards, the Court of Appeal in the operation of the mission numbers 40117, 40118 and 40174 delivered defective tools err in law in a (other) Held subsequent performance by the plaintiff for the defendant unreasonable. In the – discussed in connection with the question of annulment of contracts – Has reasonable further Nachbesse-ments it true largely due to the multiple unsuccessful Bemühun-gen the applicant to a defect-free, the applicant's known deadlines, was the defendant in turn to their customers out-puts, and (with respect to the order numbers 40117 and 40118) to – the-sem deadlines not take sufficient account of supporting – Announcement of the applicant in the letter of 30. January 2002 parked, after which this first create an action plan for all delivered tools with the aim of wool-th, to process them in collaboration with the defendant to mutual satisfaction, instead proceed directly to remedy the defect. As far as the revision of these circumstances, relying on the review of the district court judges, unlike the Court of Appeal, puts them in any manner its own assessment of the place of the assessment of the Court of Appeal.
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(c) In respect of the job numbers 40686 and 40086/40087 made tool supplies the Court of Appeals has not addressed the question of the reasonableness of further corrective action, because it has denied claims for damages the defendant for lack of evidence of a recoverable-mance damage. Unlike the revision in its response to the cross-appeal, says, but does not lead to the, that the saddle-damages covet the defendant would remain unsuccessful for this reason. As the Court of Appeals has not yet taken so far neither in the one to the other rich-tung findings, shall be assumed on appeal in favor of the Be-accused, that such a measure which is unreasonable turned-sen.
b) For the set-off in case of dispute, the CISG, which although does not regulate the on-bill as such, but the extent of certain general principles governing the reciprocal billing Convention internal Forde ments are immanent (Art. 7 Abs. 2 CISG). As far as the present case receivables from the same gene delivery ratio face billable, apply the principles laid down in Art-se. 4 Set 1 CISG immediately. As far as the questions against the individual purchase price each claim for offset Forde ments based on one of the four other delivery conditions (On-tiered statement), come these principles here in accordance with Article. 32 Abs. 1 No.. 4, Art. 27 Abs. 1 BGB (vgl. Art. 1 No.. 4 the Act on the adaptation of the rules of private international law to the Regulation [EG] No.. 593/2008 from 25. June 2009 [BGBl. I, S. 1574]) apply, because the parties have agreed to the extent implied their applicability.
aa) Although the set-off would be subject after – still applicable – Provision of Art. 32 Abs. 1 No.. 4 BGB generally relevant for the main Forde tion law, hier also dem unvereinheitlichten Hungarian-
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for a law (Art. 28 Abs. 1 Set 1, Abs. 2 EGBGB oF). Therefore, this contract statute of the principal amount were deciding on also on the Voraussetzun-gen, The existence and the effects of set-off (vgl. Senatsur-part of 23. June 2010 – VIII ZR 135/08, World Cup 2010, 1712 Rn. 24 mwN). Something different, however,, as far as – as here – the CISG an independent and thus in accordance with Article. 3 Abs. 2 BGB aF true priority-off control, or where such have effectively agreed a different offset statute, the parties (Art. 27 Abs. 1 BGB).
On the relationship between law and unit unvereinheitlichtem law, the Senate has not only spoken in this context,, that the CISG in any case does not regulate the set-off of such claims, which do not result solely of a contract subject to him (Senate judgments 23. June 2010 – VIII ZR 135/08, cit; from 14. More 2014 – VIII ZR 266/13, World Cup 2014, 1509 Rn. 18; also Austrian Supreme Court, Their 2002, 24, 27; Swiss Federal Tribunal, Their 2004, 252, 253; so-called-off convention with third-party receivables). In contrast, the relying entirely here Question, whether the offset is then subject to the rules of the UN Sales Convention, if only claims arising from contract ratios face, subject to the United Nations Convention on Contracts for-the International Sale of Goods originally (Offsetting Convention receivables), highest court not yet clear. The opinions expressed in the instance case law and in the literature are divided on this.
(1) Is predominantly – no specific provision laid in the CISG – in this case to the applicable to the private international law of the forum State non-standardized (National) Shut-off Regulations (OLG Koblenz, RIW 1993, 934, 937; OLG Dusseldorf, , A-RR 1997,
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822, 823; LG Mönchengladbach, Their 2003, 229 230; Schlechtriem / Schwenzer / Ferrari, supra, Art. 4 Rn. 39; Saenger in Ferrari/Kieninger/Mankowski, cit, Art. 4 Rn. 20; Soergel / Lüderitz / Feng, cit, Art. 4 Rn. 10; Saenger/ Sauthoff, Their 2005, 189, 191; Piltz, NJW 2000, 553, 556; similar Münch-KommHGB / Benicke, cit, Art. 4 CISG Rn. 15). According to another view, the offset should always be judged by standards applied in the Convention, when (Monetary)Receivables face, which are all based on the CISG, regardless, whether they come from the same or different contractual relationships (Staudinger / Magnus, cit, Art. 4 Rn. 47; MünchKommBGB / Westermann, cit, Art. 4 CISG Rn. 12). Other voices pull the CISG only for the netting of (Monetary) Receivables from the same contract zoom, while the on-bill otherwise in accordance with applicable non-uniform (born-onalen) To judge right (OLG Hamburg, Their 2001, 19, 22; AG Duisburg-Hamborn, Their 2001, 114, 115; Schlechtriem / Schwenzer / Fountoulakis, cit, Art. 81 Rn. 21 f. mwN; Djordjevic and KROLL / Mistelis / Viscasillas, UN-Convention on the International Sales of Goods, 2011, Art. 4 Rn. 40 f. mwN; Honsell / Siehr, cit, Art. 4 Rn. 24 f.; similar OLG Karlsruhe, Their 2004, 246, 251; schweizeri-cal Federal Court, CISG-online No. 1426).
(2) The Senate is this latter view preference. Although the CISG does not make any express provision on the netting and is also limited in its substantive scope. It only regulates the conclusion of the contract and made him grow-the rights and obligations of the seller and the buyer (Art. 4 Set 1 CISG). However, Article. 7 Abs. 2 CISG, that questions, relating to the CISG-he took items, but are not explicitly ge-regulated in the Convention, priority pursuant to the Convention underlying all-
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common principles and should be assessed only secondarily by the law, which shall be conducted according to the rules of international law.
(a) Such the CISG immanent general principle can be from an overview of the regulations in Art. 88 Abs. 3, Art. 84 Abs. 2 CISG underlying legal principle and the – inter alia – in Art. 58 Abs. 1 Set 2, Art. 81 Abs. 2 Derived CISG enshrined train-to-train-principle (Schlechtriem / Schwenzer / Fountoulakis, cit; Münch-KommBGB / Westermann, cit; Staudinger / Magnus, cit, Art. 4 Rn. 47; Art. 81 Rn. 15). This reflects the, that the CISG the fate of mutual, from the same contract (Art. 4 Set 1 CISG) stam-mender claims are closely linked and – as a consequence of Ver-unbundling – a settlement of such claims allowed, provided that they are solely with professional subject to the CISG and directed pecuniary (Schlechtriem / Schwenzer / Fountoulakis, cit; MünchKommBGB / Westermann, cit; vgl. also – albeit with additional findings – Staudinger / Magnus, cit, Art. 4 Rn. 47).
(aa) The extinction of mutual money claims from a einheitli-chen sales contract due to a transfer is about in Art. 88 Abs. 3 CISG expressly provided. Even in the case of type. 84 Abs. 2 CISG is a registered Ver-calculation of the purchase price repaid with the auszukehrenden Ge consumption advantages readily (Schlechtriem / Schwenzer / Fountoulakis, cit, Art. 84 Rn. 9 mwN; Schlechtriem / Schwenzer / Ferrari, cit, Art. 4 Rn. 39; Staudinger / Magnus, cit; MünchKommHGB / Benicke, cit). These rules will – albeit in certain situations fed-cut – expressed, that the CISG instead of the settlement of mutual, from the same contract (Art. 4 Set 1 CISG) springing monetary claims a claim to be made clearing is possible.
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(bb) A convention internal set-off can not be affected in these FAEL-len, that their conditions were not sufficiently be-tunable (but Schlechtriem / Schwenzer / Ferrari, cit). In particular, can not be doubted, that the set-off – expressly or konklu-dent – be explained (so also Staudinger / Magnus, cit; Schlechtriem / Schwenzer / Fountoulakis, cit). This can be derived from it, that the CISG capable of generalization brings in several places expressed, that the Defendant makes his counterclaim is asserted (vgl. Art. 81 Abs. 2, Art. 84 Abs. 2 CISG; see also Art. 88 Abs. 3 CISG; to the whole Staudinger / Magnus, cit; Schlechtriem / Schwenzer / Fountoulakis, cit). Next can be take-ent to the principles of the UN Sales Convention formative rules, that a set-off only with mutual (vgl. Art. 4 Abs. 1 CISG) Claims on money comes into consideration; at not similar claims and the CISG does not provide a right of retention ago (vgl. Art. 58 Abs. 2, 3, Art. 71 CISG).
Is due to the offsetting under Convention-autonomous principles, that the opposite is, mutual money claims – if no offsetting exclusions have been agreed – extinguished by offsetting, in so far as they agree in magnitude and offsetting is he-clears (Staudinger / Magnus, cit; Schlechtriem / Schwenzer / Fountoulakis, cit).
(b) The principles presented apply only for a Aufrech-tion of claims within a single contract. A set-off of claims from different, all the CISG underlying contracts other hand, is not covered by the provisions of the UN Sales Convention. Subject matter is the UN Sales Convention is the per-spective purchase agreement (Art. 4 Set 1 CISG); on general Konventionsgrundsät-
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ze may of its own. 7 Abs. 2 CISG only be resorted, as far as the An-ranging scope of the Convention. This is not the case, when asked for offset from other UN sales contracts re-consulted as to the alleged principal claim. Something else has only then to apply, if the parties – permitted by Art. 27 BGB aF is possible – agree, offsetting to insinuate the principles of the UN Sales Convention even when such a situation, (Schlechtriem / Schwenzer / Fountoulakis, loc. 22).
bb) Measured against these principles is that of the defendant told off by the Convention on internal standards of the UN sales law and not on the conflict of laws applicable to non-uniform national law to assess. The applicant makes a total purchase price (Art. 53 CISG) submit, which is composed of purchase price claims from five Lieferver-ratios. Against expects the defendant with – also the springing-sen individual delivery conditions – Claims for damages (Art. 45 Abs. 1 Buchst. b, Abs. 2, Art. 74 CISG) to. The particular from resale-promotion and the (primarily) So here against each alleged counterclaim arising from the same contract.
However, this is not to the extent (more) the case, than that based on the individual delivery conditions counterclaims of the defendants exceed the individual price of shares and the defendant – according to the order off of her on-identified – offsets the excess part, the respec-gen counterclaim against the price of shares from the further delivery ratio-sen (gestafftelte off). Nevertheless, the offset in the dispute must also be established in this regard uniformly according to the standards of the accounting convention and not so far partially subject to the non-uniform Hungarian-off Regulations, than after a settlement in
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remain of these leases are still mutual Restzahlungsansprü-che of different contractual relationships. Because the parties by their behavior in the process (inferred; vgl. Art. 11 Abs. 1, 2 EG BGB aF) expressed, that they subjugated the individual as a supply-integrated the CISG (Overall)Want to know legal relationship evaluative-tet. The applicant has summarized all purchase price demands from the individual deliveries in this process to a single Forde-tion, and the defendant has argued against this with all of these supply-made damages (as well as in terms of the contract with no. 40686 for allegedly agreed purchase price reduction) explains the offset. As a result of this retrospective (inferred) Agreement constitutes the property- and legal ultimately otherwise constitute, as the parties had concluded a priori a single contract for all tool supplies.
c) Error of law in prison but the appellate court to set off the ge-set counter-claims (the amount of) considered unproven. The revision reply rightly asserted by way of Gegenrüge, the Court of Appeal in this case omitted provided proof of pleadings and consider the evidence collected by the district court inadequate (§ 286 Abs. 1 Code of Civil Procedure). The assessment of the evidence is in principle subject to the trial judge, on its findings, the Court of Appeals in accordance with § 559 Abs. 2 ZPO is bound. This can verify only, whether the trial judge according to the commandment of the § 286 ZPO with the process material and the results prove comprehensive and consistent auseinan-dergesetzt, So the evidence is complete and legally possible and does not violate the laws of thought and experience sets (st. Rspr.; last about BGH, Case 16. April 2013 – VI ZR 44/12, VersR 2013, 1045 Rn. 13;
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from 20. More 2014 – VI ZR 187/13, juris Rn. 28; each with further references). One Nachprü-fung on this scale does not withstand the appeal judgment.
aa) The defendant at first instance in addition to the witness heard Sp. , S. , G. , B. and P. identified numerous other witnesses to the extent of the respective tools of their performed Mens-gelbeseitigungsarbeiten. With its appeal, the defendant-te has taken on her first instance lecture on the remedial effort reference while the taking of evidence concerning the witness W. , has been named many of the statements as to the improvements involved employees submitted, even expressly repeated. This proof offered is the Court of Appeal erred in procedure not followed. Although the general reference to submissions at first instance and proof footing generally not sufficient for a proper Berufungsbegrün-making (BGH, Judgment of 24. February 1994 – VII ZR 127/93, NJW 1994, 1481 un-ter II; Musielak / Ball, Code of Civil Procedure, 11. Ed, § 520 Rn. 29). Something different, however, then, if the trial court did not consider the arguments for beweisbedürf tig; so far as the evidence footing the lower court also act on without explicit reference (BGH, Judgment of 11. October 1996 – The ZR 159/95, juris Rn. 9; Musielak / Ball, cit). So things are here. The Landge-reporting has not raised some evidence, but then held the presentation of the defendant to the extent of accomplished remedial work right from the green-not for use as evidence in need, and refrained from further collection of evidence.
bb) An audit also reply makes her Gegenrüge rightly claims, that the Court of Appeal in its assessment, whether the statements of the witnesses by the district court as to the extent of Mängelbeseiti-gung expenses for the individual tools were productive, the statement
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the witness G. has not brought into focus. This witness has, however, be-confirmed, to that of the defendant in the process of slip made for an individual-cost tools- Tables and time spent presented on the basis of – specifically related to specific tools – has made hand-written notes of Mitar-workers employed for the removal of defects. With this statement, the Court of Appeal was not off set each other and, therefore, the evidence gathered appreciated incomplete. In his renewed appreciation of the appellate court will also have to consider, whether – as the applicant contends on appeal – the witness G. only to supplies with the order numbers 40118 and 40174 has been consulted, have to decide and, where appropriate,, whether a more comprehensive examination of this witness (§ 398 Code of Civil Procedure) – and the other from Landge-directing the witnesses – is required.
The appealed decision is also based on the identified errors of law (§ 545 Abs. 1 Code of Civil Procedure). When a violation of procedural provisions is the mere possibility, that the court of appeal would be without the proce-rensfehler reached a different result (Senate judgment of 17. Feb-ing 2010 – VIII ZR 70/07, , A-RR 2010, 1289 Rn. 30 f. mwN). In case of dispute can not be excluded, that the Court of Appeal after hearing the wide-ren appointed by the defendant to the defect effort witnesses, in particular, the witness W. , and taking into account the testimony of the witness G. would have reached a different conclusion. As far as the revision want to see this differently, flouted the ban they anticipated Be-oriented assessment.
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B. For the cross-appeal, the defendant
1. The cross-appeal, the defendant, with which they themselves against their Ver-assessment to pay the purchase price claims from contracts with the order numbers 40686 and 40086/40087 turns and makes that regard, the Court of Appeal considered the off claims wrongly not well founded, is allowed.
Of § 554 Abs. 2 Set 1 Does not require the Code of Civil Procedure for the admissibility of Anschließung, that has been zugelas-sen also to connect appellant revision, can a cross-appeal on limited leave to appeal even be inserted, if the cross-appeal does not concern the dispute fabric, referred to by the admission (BGH, Case 24. June 2003 – KZR 32/02, NJW 2003, 2525 Section I; from 26. July 2004 – VIII ZR 281/03, NJW 2004, 3174 Section II B. 1; from 22. November 2007 – I ZR 74/05, BGHZ 174, 244 Rn. 39; from 11. February 2009 – VIII ZR 328/07, juris Rn. 31). The Neurege-development of cross-appeal in § 554 But does not alter the Code of Civil Procedure, that it is a non-independent appeal ancillary nature (BGH, Judgment of 22. November 2007 – I ZR 74/05, loc. 40). This dependence of the An-circuit revision would contradict it, could be introduced if their dispute with fabric, which is neither a legal nor an economic link with the subject of major revision (BGH, Case 22. November 2007 – I ZR 74/05, loc. 40 f., 38 mwN; from 11. February 2009 – VIII ZR 328/07, cit; from 18. September 2009 – The ZR 75/08, NJW 2009, 3787 Rn. 27).
Such a relationship is given herein as a result declared by the defendant off. Although the applicant engages with its revision of the dismissal of their compensation claims from contracts with the contract-
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numbers 40117, 40118 and 40174 an, while the defendant with the An-circuit revision against their partial condemnation of the contracts with the order numbers 40686 and 40086/40087 apply. The defendant, however, has been offset against all the objectives pursued by the applicant in its action Kaufpreisan-claims against counterclaims for their own expenses for the elimination of shortcomings on all supplied tools. As discussed above in Section II A 2 performed, is the Court of Appeal therefore also in terms of the Ge subject of the audit forming purchase price claims of the applicant (for the first time) have de-rule on the questions raised by the defendant to offset exposures to. The necessary legal or economic co-hang between revision and cross-appeal is thus given.
2. The cross-appeal is well founded. Because the defendants are – above in Section II A 2 performed – the merits of claims for damages due to necessary and reasonable expenses defect in accordance with Article. 45 Abs. 1 Buchst. b, Abs. 2, Art. 74 CISG for under the On-job numbers 40117, 40118, 40174, 40686 and 40086/40087 molds supplied to, with which they set-off against the purchase price Forde gained from the contracts with the order numbers 40686 and 40086/40087 declared. In that regard, the defendant alleges also correctly, that the appellate court erred in procedure (§ 286 Abs. 1 Code of Civil Procedure) their evidence sprints for order-fang the lack removal work is not fully explored and has the testimony of the witnesses heard by the district court inadequate ge-honors. To avoid repetition, refer to the comments in Section II A 2 referenced c, the applicable here.
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III.
It follows that the judgment under appeal has no stock; it is clearly out-of the claim total repeal (§ 562 Abs. 1 Code of Civil Procedure). The dispute is not ripe for final decision, because in terms of the demands made on the On-bill further findings, particularly for Hö-he, Necessity and appropriateness of Mängelbeseitigungsaufwendun-gen must be taken. The dispute is therefore within the scope of the waiver for a new trial and decision of the Court of Appeal zurückzuver-point (§ 563 Abs. 1 Set 1 Code of Civil Procedure).
For the further proceedings of the Senate Recalls, that – such as the Be-accused with their revision reply (by way of Gegenrüge) and argues with her cross-appeal to law – Contrary to the opinion of the Be-rufungsgerichts an estimate of the remedial expenses under § 287 Abs. 1 ZPO is not excluded a priori. As far as – as here – Are fixed Basis of liability and damage occurred and affirm the liability of the Be-accused for expenses on its merits, and it only requires filling out the amount of the benefit payment, must in principle by the possible granting of a right to compensation not for that reason be abgese-hen, because its height is not safe to determine, It especially of sufficient indications of an estimate of the total damages under § 287 ZPO missing (st. Rspr.; vgl. about Senate judgments 5. July 1967 – VIII ZR 64/65, juris Rn. 14; from 12. January 2000 – VIII ZR 19/99, NJW 2000, 1413 Section III; each with further references). Rather, it must be examined in these cases, the extent to which the facts submitted to the Court provides reasonable GRUNDLA-ge for estimating at least one in each case incurred minimum damage (vgl. only BGH, Case 12. January 2000 – VIII ZR 19/99, cit; from 6. June 1989 – VI ZR 66/88, NJW 1989, 2539 Section II 1; each with further references).
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In the context of § 287 Code of Civil Procedure can not be demanded by the claimant in the same way a Substantiie-tion of the circumstances giving rise to such factual questions regarding other (Senate judgment of 12. January 2000 – VIII ZR 19/99, further references cited above). An estimate in accordance with § 287 Code of Civil Procedure may therefore only be rejected, if any are useful Anhalt-points established only for a minimum estimate (vgl. BGH, Case 6. June 1989 – VI ZR 66/88, cit; from 12. January 2000 – VIII ZR 19/99, further references cited above; from 29. More 2013 – VIII ZR 174/12, NJW 2013, 2584 Rn. 20 mwN).
Evidence for an estimate – optionally with obtaining egg-nes expert opinion (§ 287 Abs. 1 Set 2 Code of Civil Procedure) – arise in the event of a dispute any event presented by the defendant tabular Auflis-lines and their other description of the costs incurred to remedy the defect expenses. Make up for the failure to estimate, the Senate is already therefore denied at the present stage, because the process material has not yet been realized by the Court of Appeal and inadequate ge-honors. In addition, they can be used as the trial judge assigned task this would only be carried out by the Court of Appeals, if the estimated reserves made final determinations tatrichterliche
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are (the standard of review cf.. BGH, Judgment of 19. April 2005 – VI ZR 175/04, , A-RR 2005, 897 Section II 2 a).
Dr. Milger Dr. Hessel Dr. Fetzer
Dr. Bunger Kosziol
Lower courts:
LG Zweibrücken, Decision of 19.03.2010 – 6 HKO 13/03 -
OLG Zweibrücken, Decision of 29.10.2012 – 8 You 22/10 -

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