BAG NZA 1994, 1080 (2 AZR 617/93)
08 June 1920
Professor Basil Markesinis
Raymond Youngs


On the 18th November 1916 the defendant sold to the claimant around 214 barrels of Haakjöringsköd by the steamer Jessica, unloaded at 4.30 Marks per kilo c.i.f. Hamburg for net cash against the bill of lading and policy. (...) On arrival in Hamburg the goods were confiscated by the Zentral-Einkaufsgesellschaft mbH (central purchasing company) in Berlin who took delivery of them shortly afterwards. The claimant claims that the goods had been sold to him as whale meat when they were shark meat. As whale meat, they would not have been subject to confiscation. The defendant, who had delivered goods which were not in accordance with the contract, therefore had to reimburse him for the difference between the purchase price and the confiscation price paid by the Zentral-Einkaufsgesellschaft which was substantially lower. He claimed payment of 47,515.90 Marks. The Landgericht declared the claim to be justified in principle. It established that both parties had assumed on conclusion of the contract that Haakjöringsköd was whale meat and deduced from this that the claimant could demand a refund of the price paid less the confiscation price received from the Zentral-Einkaufsgesellschaft just because the defendant had delivered shark meat. (...) The appeal in law was unsuccessful.


(...) As the Oberlandesgericht has established in a manner free from doubt, both parties mistakenly assumed on the conclusion of the contract of the 18th November 1916 that the goods forming the subject-matter of the contract and defined in it - 214 barrels of Haakjöringsköd loaded on the steamer Jessica - were whale meat. The goods were in reality shark meat and as such were correctly described by the Norwegian word Haakjöringsköd, the meaning of which the parties did not know. This finding does not however justify the view that what was sold ie Haakjöringsköd had also been delivered and that the claimant, after the goods had been transferred to him by the delivery of the bills of lading, could have avoided the purchase contract for mistake about characteristics of the type of product which are important in human affairs, in accordance with § 119 (2) of the BGB. Instead, it follows from this finding that both parties wanted to conclude a contract about whale meat, but that in declaring their contractual intention, they mistakenly used the description Haakjöringsköd which does not correspond to this intention. The legal relationship which exists between them should be assessed just as if they had used the description whale meat which did correspond with their intention (reference omitted). Accordingly whale meat should have been delivered in accordance with the contract, and the claimant should be directed to the legal remedies provided for in §§ 459 flg [§ 437] of the BGB after shark meat had been delivered to him (reference omitted). This was because the goods delivered lacked the characteristic of being whale meat, (...) which was so substantial that its absence represented a defect in the thing in the sense of § 459 (1) [§ 434]. The claimant is therefore entitled to rescind, and as a consequence he can demand a sum of money from the defendant - the amount of which is yet to be established - which is equal to the price paid by him to the defendant less the confiscation price granted to him by Zentral-Einkaufsgesellschaft (...)

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