Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
c) Germany
The attitude of the German courts has been strongly influenced by a
leading case of the Federal Supreme Court of February 1966 published
in the official collection of decisions. An Italian exporter had retained
ownership of goods exported to Germany, but had not complied with the
relevant Italian provisions on making that reservation effective against
third parties. After the sold goods had arrived at the German buyer’s
place of business, a creditor of the buyer brought an execution against
the goods; the Italian seller objected, invoking an earlier retention of
title. The court took great pains to secure the Italian seller’s preference,
although under Italian law the seller’s rights had no effects against third
parties. It ‘construed’ a tacit agreement between seller and buyer about a
retention of title concluded upon the goods crossing the German border,
which assured the precedence of the seller over the rights of the German
execution creditor. 16 German commentators, while approving the
result, invoked the idea that the Italian seller’s retention of ownership had
automatically become fully effective upon the merchandise crossing the
German border. 17 This result of the decision – but not its reasoning – has
been generally approved. 18
Many German courts that subsequently had to pass on retentions of title
agreed by foreign exporters with their German buyers relied on that
judgment and based their decisions on two issues: first, had the parties
agreed upon a retention of title? The consequence of an affirmative answer
reached in all cases was that a valid and fully effective reservation of ownership
had been achieved upon the affected goods crossing the German
border. Second, the legal situation in the seller’s country was not invesclaim
for delivery of German seller’s successor against French buyer’s French
lessee, who was held to be in bad faith with respect to the buyer’s entitlement
to the goods, since the lease contract mentioned the reservation of ownership
(cf. note D. 2000 J 74). Cass. 8 January 2001, Rev.crit.d.i.p. 2002, 328 note
Bureau, did not recognize an Italian seller’s retention clause on the contractual
level as not affecting those goods that the seller reclaimed.
16
Fed.S.Ct. (BGH) 2 Feb. 1966, BGHZ 45, 95, IPRspr. 1966-1967 no. 54.
17
See especially Kropholler, Internationales Privatrecht (ed. 6, Tübingen 2006)
563 s.
18
In addition to Kropholler (preceding n.) Kegel / ​Schurig, Internationales Privatrecht
(ed. 9, Munich 2004) 773; von Hoffmann / ​Thorn, Internationales
Privatrecht (ed. 9, Munich 2007) 527 ss.
170
Ulrich Drobnig
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