LG Hannover; 2021-06-02; 11 O 3/20
Decision by national courts in the field of European Union law — ECLI:DE:LGHANNO:2021:0602.11O3.20.00
Date: 2021-06-02
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82021DE0602(51)_ENG_SUMJURE
JURE summary
JURE summary
The persons domiciled in Germany (hereinafter ‘the plaintiffs’) brought a case before the Landgericht Hannover (hereinafter ‘the Court of First Instance’) against a company domiciled in Zurich, Switzerland (hereinafter ‘the defendant’). They sought damages for the alleged breach of two contracts for purchasing trees planted in Brazil.
The defendant manages noble wood plantations in Brazil and offers private individuals the purchase of trees for investment purposes. The defendant subsequently takes care of the trees, harvests them, and pays the proceeds from the sale of the timber to the investors.
The parties concluded two contracts, one in 2014 for teak trees and the other in 2015 for balsa trees. After making the payment, the plaintiffs received a tree certificate proving their ownership of the trees.
In 2018 and 2019, the plaintiffs did not receive any revenue from the sale of balsa wood. The defendant has informed the plaintiffs that due to the situation in the international timber market, it is no longer possible to generate any revenue from the sale of the balsa trees. It proposed to cut down the balsa trees entirely, shred the wood, incorporate it into the soil on site in Brazil and end this ‘balsa project’.
The plaintiffs subsequently withdrew from both contracts and, in September 2019, filed an action before the Court of First Instance seeking the repayment of the contract price and the damages. They sustained that they are entitled to withdraw from the contracts following the applicable German law governing distance contracts as the defendant allegedly breached its pre-contractual obligations to inform them about all the contractual conditions and risks.
The Court of First Instance held that the plaintiffs must be deemed consumers within the meaning of the new Lugano Convention (1), and established its international jurisdiction over the dispute on Article 15(1)(c) and Article 16(1) of the new Lugano Convention. Following Article 6(1) and (2) of the Rome I Regulation (2), the applicable law was determined to be the substantive law of Germany.
According to the Court of First Instance, the plaintiffs could not demand that the defendant pay back the tree purchase price. The plaintiffs did not withdraw from the contracts effectively. Under Article 229 Section 32(2) of the EGBGB (3), i.e. the law on distance sales in force at the time of withdrawal, the right of withdrawal expired after 12 months and 14 days after the delivery of the goods to the plaintiffs. In the present case, delivery constitutes service of the ownership certificate to the plaintiffs in May 2014 concerning the first contract and in July 2015 concerning the second contract. Therefore, any possible withdrawal right expired in 2015 (or 2016, respectively) and could not be claimed in September 2019.
The contracts were not investment contracts, but their sole object was the acquisition of individual ownership of the trees to be managed and sold by the defendant on behalf of the plaintiffs. The plaintiffs have reliably acquired ownership of the trees and have not been deceived by the defendant. The plaintiff should have been aware of the risk of a loss as a purchase of growing trees is not risk-free because the trees could be damaged for different reasons independent of the defendant. Therefore, claims based on pre-contractual obligations and tortious claims for damages must be ruled out as unfounded.
The Court of First Instance dismissed the action filed by the plaintiffs.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
(3) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).