French: Witz, Recueil Dalloz (1998) 315
German: Piltz, [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 13 [17 n.45] Go to Case Table of Contents
Case text (English translation)
Queen Mary Case Translation Programme
Obergericht Kanton Luzern 8 January 1997
Translation by Martin Eimer [*]
Translation edited by Ruth M. Janal [**]
University of Freiburg
[This is an appeal of a ruling in a case involving the sale of medical supplies (blood infusion devices) by an Italian firm [seller] to a Swiss [buyer]. Key issues include the interpretation of Art. 38 CISG and the meaning of the phrase "within a reasonable time" in Art. 39(1) CISG.]
On 7 October 1994, the Court of First Instance of Luzern-Land issued a Provisional Order to the effect that the [seller] is to be paid Fr. [Swiss Francs] 190,680 plus 5% interest since 31 December 1993. The [buyer] filed a motion for recourse, but the competent department (Schuldbetreibungs- und Konkurskommission) of the Obergericht [Appellate Court] refused to take action because of the [buyer]'s delayed payment on advance costs.
On 4 January 1995, the [buyer] challenged the Provisional Order in the Court of First Instance and sought a declaration that either no valid claim for payment existed to the amount of Fr. 190,680 plus 5% interest since 31 December 1993, or that it had been set-off and lost.
In its decision of 6 October 1995, the Court of First Instance sustained the [buyer]'s challenge to the amount of Fr. 373.75 plus 5% interest since 31 December 1993 but rejected it in respect of the residual amount of Fr. 190,306.25.
On 31 October 1995, the [buyer] appealed to the Obergericht, seeking:
Annulment of Items 2 to 5 of the decision of the Court of First Instance;
A declaration that [seller]'s claim for Fr. 190,680 plus 5% interest since 31 December1993 must be disregarded because it does not validly exist or, alternatively, was set-off; that the provisional order of 7 October 1994 must therefore be annulled; and that
[Seller] should bear all costs and expenses.
On 1 February 1996, the [seller] requested rejection of the appeal, with costs and expenses to be borne by the
[buyer].
Pursuant to paragraph 254 ZPO [Code of Civil Procedure], the parties waived their right to a court hearing for the appeal.
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