Clearing Dollars Case

CourtRegional Court (Germany)
German Federal Republic, Landgericht of Hamburg (Chamber 12 for Commercial Affairs).
Clearing Dollars Case.

International Organization — Specialized Agencies — International Monetary Fund — Articles of Agreement of — Regulation of Currency and International Exchange — Recognition of Such Regulation by Other States — International Recognition of Exchange Control Regulations — Article VIII, Section 2(b), of Articles of the Fund.

The Facts.—The defendants, who were Belgian residents, entered into an agreement with the plaintiffs, a Hamburg firm, for the purchase from the latter of 500 tons of sulphate of ammonia at 46 U.S. Clearing Dollars per 1,000 kilograms, payment to be made under Belgian/West German Clearing. The contract provided that Hamburg was to be the place of performance of the plaintiffs' obligations and also the place of jurisdiction The defendants failed to obtain an import licence from the Belgian authorities, and the plaintiffs brought this action for damages because of the defendants' failure to take up the goods. There was also some question whether the grant of an import licence was a condition of the contract.

Held: that the action must fail; that the contract was unconditional; and that the contract was governed by German law.

The Court said: “Article VIII, Section 2(b), of the Bretton Woods Agreement (Agreement on the International Monetary Fund), to which Germany and Belgium are parties, precludes the enforcement of claims for positive damages (citing RGBl., 1952, II, pp. 637 et seq., 659).

“The passage cited reads as follows:

The case at issue comes within the terms of this provision. The present purchase contract is one which, if it were fulfilled, would involve the foreign exchange holdings or the currency of a member country, i.e., Belgium.

“As is apparent from the refusal to grant an import licence, the foreign exchange contract is in conflict with the foreign exchange control regulations of Belgium. It cannot be objected in this connection that payment was to have been effected through the German-Belgian Clearing, because the import licence was refused for the very purpose of preventing settlement under the German-Belgian Clearing, the object of which is the proper husbanding of the country's foreign exchange resources in accordance with the intention of Article VIII, Section 2(b).

“The Belgian foreign exchange control regulations have been maintained in conformity with the Bretton Woods Agreement. In this respect, it would be...

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