2006年1月25日
25 January 2006
原文为德文
Original in German
以德文发表于：IHR 2006，110
Published in German: IHR 2006, 110
摘要编写人：Christian Rauscher
Abstract prepared by Christian Rauscher.
塞尔维亚籍原告向奥地利籍被告购买了一批冷冻猪肝以便进口到塞尔维亚。
The Serbian claimant bought frozen pork-liver from the Austrian defendant in order to import it to Serbia.
双方未商定具体的质量等级，买方也未就货物进口到塞尔维亚给予任何指示。
No specific level of quality was agreed upon nor any guidelines regarding the import to Serbia were given by the buyer.
尽管该货物完全符合欧盟的规定并绝对合格可供消费，但被塞尔维亚海关当局视为有缺陷并因此遭到拒绝。
Although the goods were fully compatible with EU-regulations and absolutely qualified for consumption, they were regarded as defective and therefore rejected by the Serbian customs authorities.
买方因货物未能进口而蒙受损失，遂向奥地利地方法院起诉卖方。
Due to the failed import of the goods the buyer suffered damages for which it sued the seller at an Austrian district court.
诉讼请求在三审中均被驳回。
The lawsuit was dismissed by all three judicial instances.
最高法院确认，依据其惯常的法理，应当根据卖方国家的标准来评估货物是否适用于同一规格货物通常使用的目的——《销售公约》第35(2)条。
The Supreme Court confirmed that according to its constant jurisprudence the conformity of the goods to the purposes for which goods of the same description would ordinarily be used - Art. 35 (2)(a) CISG - is to be assessed according to the standards in the country of the seller.
应当由买方来考虑其本国的规定和标准，如果需要的话，依据第35(1)或(2)(b)条将这些规定和标准列入一项具体协议。
It is up to the buyer to take into account the provisions and standards of its country and, if need be, to include them into a specific agreement according to Art. 35 (1) or (2)(b).
由于在本案中，买方没有就产品质量提出具体要求，因此卖方不承担赔偿责任。
As in the given case the buyer had failed to specify particular requirements as to the quality of the product no liability of the seller was assumed.
判例753：《销售公约》第42条，第43条
Case 753: CISG 42, 43
2006年9月12日
12 September 2006
未经发表
Unpublished
摘要编写人：Maria Kaller
Abstract prepared by Maria Kaller.
德国一私人有限公司（卖方）向奥地利一公司（买方）出售了一批空白CD光盘。
A German Private Limited Company (the seller) sold blank CDs to an Austrian company (the buyer).
卖方是从其台湾的母公司购买的这批光盘，该母公司有生产和销售光盘的许可证。
The seller had bought the CDs from its Taiwanese parent company which had the license to produce and sell them.
许可合同允许母公司在德国销售空白CD光盘，但没有提及母公司是否也有权在奥地利销售这些光盘。
The license contract allowed the parent company to sell the blank CDs in Germany, however it was silent on whether it was also entitled to sell them in Austria.
此外，在就许可证费与许可权人发生争议后，许可合同已被解除，法院受理了台湾的母公司与许可权人之间的诉讼。
Furthermore, after a dispute on the license fees with the licensor, the license contract had been dissolved and court proceedings between the Taiwanese parent company and the licensor had been filed.
当买方得知该诉讼后，要求卖方就此作出澄清，但未收到任何进一步信息，在就所购产品提出索赔要求后，也未收到任何关于赔偿的信息。
When the buyer learned about the proceedings it asked the seller for clarifications without receiving any further information nor any information on the remedies in case of claims on the products bought.
因此，买方管理委员会决定行使其扣留与许可合同解除之后卖方出售和交付的货物有关的发票支付款的权利。
Therefore, the management board of the buyer decided to exercise their right of retention of payment of those seller's invoices relating to the goods sold and delivered after the license contract had been dissolved.
据买方称，这些货物并不免于第三方的索赔，而且买方自身不能为许可证费承担责任。
According to the buyer, those goods were not free from third parties' claim and the buyer itself could be held liable for the license fees.
卖方辩称不存在买方为许可证费承担责任的风险，因为母公司并没有违反合同。
The seller argued that there was no risk that the buyer could be held liable for the license fees, because there had been no breach of contract by the parent company.