PIL instrument(s)

Case number and/or case name

BGH, 14.5.2014 – VIII ZR 266/13

Details of the court

Germany, Third Instance

Articles referred to by the court

Date of the judgement

13 May 2014

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about the set-off against a claim resulting from the CISG. It was doubtful which law governed the modalities of the set-off. The court held that pursuant to Art. 17 (1) Rome I it was decisive which law governed the contract. Given that the claim arose from the CISG it was however necessary to determine the law applicable to the contract according to Private International Law. Pursuant to Art. 4 (1) (a) Rome I the law governing the contract was Italian law because the seller’s habitual residence within the meaning of Art. 19 (1) Rome I was Italy. In German scientific literature it is almost unanimously accepted that within the application of Art. 17 Rome I in case of a claim resulting from the CISG the law that governs the contract has to be separately determined by applying PIL. The CISG doesn’t contain rules on the set-off (see Art. 4 CISG). The decision is correct.