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Home › Liturgical Abuses › Is it correct for a lay person to “lay hands” on another?
Is it correct for a lay person to “lay hands” on another?
The term “baptism in the Holy Spirit” in the context of the charismatic experience was born in theological error.
Pentecostals do not believe in the Sacrament of Confirmation.
There are no instances in the New Testament of the “laying on of hands to receive the Holy Spirit” outside of the Sacraments.
(d) On the Laying on of Hands and Anointing with Oil: The practice of anointing with oil and laying on of hands to “receive the Holy Spirit” was adopted by Pentecostals, as explained above, because they did not understand the doctrine of the Sacrament of Confirmation. Given this theological bias, it is not surprising that they misinterpreted the passages in the Book of Acts 45. As such, it appeared to them that this “laying on of hands to receive the Holy Spirit” was a separate act and experience from that of conversion, rather than as an act of the Sacrament of Confirmation. As Catholics we know that there is no need for us to “receive the Holy Spirit” in some extra-Sacramental way. As the Catechism instructs us, Confirmation gives us “the full outpouring of the Holy Spirit as once granted to the apostles on the day of Pentecost” (CCC 1302) We already have the fullness of the Holy Spirit.
Also in the Collaboration Instruction: Every effort must be made to avoid even the appearance of confusion … To avoid any confusion between sacramental liturgical acts presided over by a priest or deacon, and other acts which the non-ordained faithful may lead, it is always necessary to use clearly distinct ceremonials, especially for the latter.
This Congregation for Divine Worship has received your letter dated 4 May 2000, in which you ask whether the Instruction Ecclesiae de mysterio on Lay Collaboration in the Ministry of the Priest, article 9, should be interpreted as prohibiting the use by laypersons of blessed oil as a sacramental.
While a certain degree of prudent reserve in this matter is indeed advisable, it is clear that the exclusion of traditional devotions employing the use of blessed oil, and in which there is no likelihood of confusion with the sacramental of Anointing of the Sick by a priest, is not the intention of this Instruction. Excluded instead would be any use by a layperson of oil, which even if not the Oil of the Sick blessed by the Bishop on Holy Thursday, would be interpreted as replacing the sacramental Anointing by a priest, or which would in any way be seen as equivalent to it, or which would be employed as a means of attaining for laypersons a new role previously reserved to clergy.
The intention of the person using the oil, the clarity with which such an intention is expressed by such a person, and the understanding of those present will all be relevant in determining the likelihood of misunderstanding and therefore the degree to which such a practice should be avoided. In this matter as in all similar cases, such a practice is subject to the supervision of the local Pastor and ultimately of the diocesan Bishop.
The common practices of the Charismatic Renewal of the quasi-liturgical “laying on hands to receive the release of the Holy Spirit” is often done without regard to the understanding of those present that the Congregation requires. Even when permission has been attained by a group’s Pastor, the actual practice among many groups tends to be quasi-liturgical in appearance. Many individual Charismatics seem present themselves as quasi-priest in their demeanor even if verbally claiming they are not. Thus, in much of the Charismatic Renewal this practice can be both potentially theologically problematic and certainly too closely resembling what is reserved to bishops and/or priests.
47 Holy See, Instruction, On Certain Questions Regarding the Collaboration of The Non-Ordained Faithful in the Sacred Ministry Of Priest (15 August 1997), art. 9 §1.
David MacDonald is a convert into Catholicism and he’s a singer; his website www.catholicbridge.com.
The site does provide a wealth of information for Evangelicals on their various doubts and questions on the Catholic faith. The answers are simple and easy to understand and have the additional force of his testimony and music background.
A: The document you refer to is probably the 1997 instruction “On Certain Questions Regarding the Collaboration of the Non-Ordained Faithful in the Sacred Ministry of Priest.” This is an unusual document insofar as it was formally issued by the Congregation for Clergy but was co-signed by no fewer than eight Vatican congregations and councils, including that of the Doctrine of the Faith. This gives the document a certain weight with respect to its authority.
The document first presents the theological principles behind its decisions before giving a series of practical considerations on aspects of lay ministry in the Church. Then, having laid the groundwork, it enunciates in 13 articles practical provisions and norms that outline the possibilities and limits of the collaboration of the lay faithful in priestly ministry.
“§3. The non-ordained faithful may be generically designated ‘extraordinary ministers’ when deputed by competent authority to discharge, solely by way of supply, those offices mentioned in Canon 230, §3 and in Canons 943 and 1112.
Naturally, the concrete term may be applied to those to whom functions are canonically entrusted e.g. catechists, acolytes, lectors etc.
“§1. […] The non-ordained faithful particularly assist the sick by being with them in difficult moments, encouraging them to receive the Sacraments of Penance and the Anointing of the Sick, by helping them to have the disposition to make a good individual confession as well as to prepare them to receive the Anointing of the Sick. In using sacramentals, the non-ordained faithful should ensure that these are in no way regarded as sacraments whose administration is proper and exclusive to the Bishop and to the priest. Since they are not priests, in no instance may the non-ordained perform anointings either with the Oil of the Sick or any other oil.
“§2. With regard to the administration of this sacrament, ecclesiastical legislation reiterates the theologically certain doctrine and the age old usage of the Church which regards the priest as its only valid minister. This norm is completely coherent with the theological mystery signified and realized by means of priestly service.
To many it might appear that this document is excessively restrictive in its dispositions. Yet by providing clear guidelines and demarcations of proper competences based on solid theological reasons, it actually facilitates fruitful collaboration between priests and laity in a true spirit of charity and service to Christ, the Church and to souls.
A: There are two elements to be taken into account the laying on of hands and the proclamation of the prayer over the candidates.
During the sacrament of confirmation there is a double laying on of hands. The rite you describe pertains to the first moment, which does not form part of the essential rite of the sacrament. But as Pope Paul VI wrote when he reformed the rite of confirmation (see “Ad Pascendum,” Aug. 15, 1971), the first rite should be held in high esteem as it contributes to the integral perfection of the confirmation ritual and gives a better understanding of the sacrament.
What the Church wishes to show is the transmission of the Holy Spirit, by apostolic genealogy going back to Pentecost, through the symbolism of consecrated hands being laid on the head of the confirmands.
The practice of laying on of hands is certainly subject to many symbolic meanings. In some cases, such as the sacrament of holy orders and the second imposition with the anointing of confirmation, it is an essential part of the rite without which the sacrament itself would not exist.
In other sacraments such as the anointing of the sick, it forms part of the auxiliary rites performed by the ordained minister.
In other cases it is a sacramental, such as when the priest extends his hands over a person or object in order to impart a solemn blessing.
It may also be used by lay people, such as when parents bless their children. In recent times it has often been used in prayer groups such as the Charismatic Renewal.
Given the symbolic polyvalence of the gesture it is necessary to determine its meaning and importance within the context of each specific rite.
In the rite of confirmation it clearly symbolizes the power of efficaciously invoking the Holy Spirit so as to achieve the effect of the sacrament. This power properly and fully belongs to the bishop.
Priests also possess this power in a latent manner and may exercise it whenever the bishop or general Church law delegates them to do so.
This is why only the bishop and concelebrating priests should extend their hands at this moment. But only the bishop says the prayer, since he actually administers the essential rite of the sacrament.
Even in a very large confirmation, where the bishop is assisted by priests who also administer the sacrament, only the bishop recites the prayer, as the priests receive their authority to administer the sacrament through the bishop.
When a priest confirms alone, as is commonly the case during adult initiation at the Easter Vigil, then all concelebrating priests extend their hands. But only the priest who confirms says the prayer.
Thus in the case of the sacrament of confirmation it is inappropriate for the entire assembly to either extend their hands or to say the prayer, as this gesture would symbolically indicate the possession of a spiritual power which they do not possess as it requires the sacrament of orders.
It is also hard to see exactly what is meant by this change, because the other elements of the rite seem to be respected; it does not appear that it symbolizes that the community is the source of the sacrament.
It might have been introduced as a nice way of having everybody involved, without much thought given to the consequences for the meaning of the rite itself. Modifying the rites in the way described despoils them of the wealth of meaning that they embody.
The reception of this sacrament through the ministry of the bishop — and in general the need for a minister for any sacrament — is a necessary element in showing that the grace of our sanctification is primarily God’s gift to us through the Church and does not spring from ourselves nor from the community. This does not mean that the community has no role in the sacraments. On receiving confirmation, a Christian enters, in a way, into the fullness of the common priesthood of the baptized through which Catholics receive the power and capacity to participate in the Church’s liturgy and to place their own personal sacrifices alongside that of Christ in the Eucharistic celebration.
However the common priesthood may only be exercised in communion with the ministerial priesthood and can never substitute it in its essential tasks.
This communion and the interplay between the two priesthoods are highlighted by the very rite of confirmation now under discussion, although it entails repeating one or two aspects already mentioned.
Before beginning the prayer of confirmation, the bishop, with the priests who will assist him on either side, says a prayer which invites all present to pray to the Father to send the Holy Spirit.
All then pray silently for a brief moment. This silent prayer is the exercise of the whole body of the faithful and thus for the faithful an exercise of their common priesthood.
by water and the Holy Spirit you freed your sons and daughters from sin and gave them new life.
Send your Holy Spirit upon them to be their helper and guide.
Give them the spirit of wisdom and understanding, the spirit of right judgment and courage, the spirit of knowledge and reverence.
Fill them with the spirit of wonder and awe in your presence.
To this prayer all give their assent by responding “Amen” in an analogous way to the final amen of the Eucharistic Prayer.
In this way the organization of the rite makes clear that the prayer of the whole assembly is called upon during confirmation although the administration of the sacrament is reserved to the bishop or priest in virtue of the ministerial and hierarchical structure willed by Christ for his Church.
When did the laying on of hands become Catholic?
Who did laying on of hands to Paul?
Interesting discussion… The brief answer is i) Ananias, Acts 9:17 and ii) The elders at Antioch Acts 13:2, 3.
Q: Do the hands of lay people have any special powers?
Last night I was praying with my wife and she got upset when I wouldn’t put my hand on her belly to pray over the baby in her womb (I would have but it would have been an awkward position for my arm). I told her it didn’t matter where I put my hands and the argument went on. Who is right?
Our Lord employed this rite to restore life to the daughter of Jairus (Matthew 9:18) and to give health to the sick (Luke 6:19). The religious aspect of this ceremony first appeared in the consecration of Aaron and his sons to the office of priesthood. Before immolating animals in sacrifice the priests, according to the Mosaic ritual, laid hands upon the heads of the victims (Exodus 29; Leviticus 8:9); and in the expressive dismissal of the scapegoat the officiant laid his hands on the animal’s head and prayed that the sins of the people might descend thereon and be expiated in the wilderness (Leviticus 16:21). The Apostles imposed hands on the newly baptized, that they might receive the gifts of the Holy Ghost in confirmation (Acts 8:17, 19; 19:6); on those to be promoted to holy orders (Acts 6:6; 13:3; 1 Timothy 4:14; 2 Timothy 1:6; Matthew 13); and on others to bestow some supernatural gift or corporal benefit (Acts, passim). In fact this rite was so constantly employed that the “imposition of hands” came to designate an essential Catholic doctrine (Hebrews 6:2).
To understand clearly the extent to which the imposition of hands is employed in the Church at present it will be necessary to view it in its sacramental or theological as well as in its ceremonial or liturgical aspect. In confirmation, the imposition of hands constitutes the essential matter of the sacrament, not however that which precedes the anointing, but that which takes place at the actual application of the chrism (S.C. de Prop. Fide, 6 Aug., 1840). In the sacrament of Holy orders it enters either wholly or in part, into the substance of the rite by which most of the higher grades are conferred. Thus in the ordination of deacons according to the Latin rite it is at least partial matter of the sacrament; in conferring the priesthood there is a threefold imposition, viz.: (a) when the ordaining prelate followed by the priests, lays hands on the head of the candidate nil dicens; (b) when he and the priests extend hands during the prayer, “Oremus, fratres carissimi”, and (c) when he imposes hands at giving power to forgive sins, saying “Accipe Spiritum Sanctum”. The first and second of these impositions combined constitute in the Latin Church partial matter of the sacrament, the traditio instrumentorum being required for the adequate or complete matter. The Greeks, however, rely on the imposition alone as the substance of the sacramental rite. In the consecration of bishops the imposition of hands alone pertains to the essence (see CONFIRMATION; ORDERS).
The ceremonial usage is much more extensive. (1) In baptism the priest signs the forehead and breast with the sign of the cross, lays hands on the head during the prayer, “preces nostras”, and again after the exorcism, beseeching God to send down the light of truth into the purified soul (cf. Rom. Rit.). Tertullian mentions imposition being used in conferring baptism in his own day (de Bap., VI, VII, &c.). (2) In penance the minister merely raises his hand at the giving of absolution. The ancient ordines (cf. Martene, “De antiqua ecclesiæ disciplina”, passim), record this custom. (3) In extreme unction there is no imposition of hands enjoined by the rubrics, although in the prayer immediately before the anointing the words “per impositionem manuum nostrarum” occur. Possibly the imposition is contained in the unctions as it is in the administration of confirmation. (4) Apart from the sacraments the rite is also employed in almost all the various blessings of persons and things. Abbots and virgins are thus blessed (cf. Roman Pontifical and Ritual). (5) In the reconciliation of public penitents and the reception of schismatics, heretics, and apostates into the Church, hands were formerly, and still are, imposed (cf. Duchesne, “Christian Worship”, pp. 328, 435, St. Cyprian, De Lapsis 16). (6) Those obsessed by evil spirits are similarly exorcized (cf. Roman Ritual, Titus, x, cl). (7) The rubrics of the missal direct the celebrant to hold his hands extended during most of the prayers. At the pre-consecration prayer, “Hanc igitur oblationem”, he also holds his hands over the oblata. This action seems borrowed from the old Levitical practice, already noticed, of laying hands on the victims to be sacrificed, but curiously it has not been proved to be very old. Le Brun (Explication de la Messe, iv, 6) says he did not find the rubric in any missal older than the fifteenth century. Pius V made it de præcepto (cf. Gihr, “la Messe”, II, 345). The significance of the act is expressive, symbolizing as it does the laying of sin upon the elements of bread and wine which, being changed into the Body and Blood of Christ, become thus our emissary or scapegoat, and finally the “victim of our peace” with God. Nothing can better show the relationship that has always existed between prayer and the ceremony that is being considered, than this expressive sentence from St. Augustine, “Quid aliud est manuum impositio, quam oratio super hominem?” (De Bap., III, xvi, 21).
A: The laying on of hands is a sign used in a number of the sacraments, most particularly in ordination. It has been used in this manner since the first century and signifies the invoking of God’s blessing on the person on whom hands are laid.
On the one hand (not to play on words), there are the many claims of healing and deliverance. Through the years — through the centuries — countless have benefited from prayer that is said while a healer or simply another person rests one or both hands onto the afflicted person, allowing for the flow of the Holy Spirit. “When Paul placed his hands on them, the Holy Spirit came on them, and they spoke in tongues and prophesied,” we have in Acts 19:4-6.
Clearly, the laying on of hands is biblical.
Therein is the rub and the reason we always urge prayer and fasting (without haste) before allowing anyone, including a priest, to lay on hands. The reason is simple: if the person laying on the hands has a dark spirit (“sin”), there is a chance that spirit can be transferred. This is called “imparting” a spirit. Fasting seals a person against the enemy — and purifies. Meanwhile, we see that Jesus also healed by praying from a distance.
“Laying hands on a person in prayer is not just a picturesque religious ritual,” a foremost deliverance expert named Derek Prince once warned in a terrific, insightful book called They Shall Expel Demons. “It can be a powerful spiritual experience, a temporary interaction between two spirits through which supernatural power is released. Normally the power flows from the one laying on hands to the one on whom hands are laid, but at times it can flow the other way.
“The power may do either good or evil. It may emanate from the Holy Spirit or from a demon, depending on the one from whom it flows. For this reason Paul established certain safeguards. [Here he quotes the passage from 1 Timothy above]. In other words, be careful with whom you allow your spirit to interact!
‘When I awoke the next morning, my cold was better — but my fingers were all curled up and stiff and hurting. Immediately I thought, Someone with arthritis laid hands on me last night! I renounced the spirit of arthritis, and within five minutes all the symptoms were gone.
We see the need for caution at the same time we must not be paranoid. These things we discern only through extensive prayer, and protect against by fasting.
Q: Well is laying on of hands good or bad? I have been to many Charismatic groups where they do this, but I will only let someone that I know and is right with the Lord to do this?
A: Well Ellen is wrong again on certain points not because I say so, but because the Vatican says so.
Every effort must be made to avoid even the appearance of confusion… To avoid any confusion between sacramental liturgical acts presided over by a priest or deacon, and other acts which the non-ordained faithful may lead, it is always necessary to use clearly distinct ceremonials, especially for the latter.
This Instruction, however, does not prohibit such things as laying on of hands or the administering of oil in conjunction with laying on hands. I personally wrote a letter to the Vatican to clarify this.
A) Sacramental Oil (blessed by the Bishop on Holy Thursday) cannot ever be used.
1. Prudent reserve must be exercised.
2. The situation of its use MUST NOT be one in which there is ANY confusion that what is happening is the Sacrament of Anointing the Sick.
3. The use of a blessed oil by the laity MUST NOT replace the Sacrament of Anointing of the Sick.
4. The use of blessed oil by the laity cannot be used in such a way as to be EQUIVALENT to the Sacrament of Anointing of the Sick.
5. The use of the blessed oil cannot be used in such a way as to create a new role for the laity which is really reserved to clergy.
6. The intention of the person using the oil must not be to violate items 2-5 above.
7. The person using the oil must express WITH CLARITY why he is not in violation of items 2-5 above.
8. The people observing or participating with the person using the oil must fully UNDERSTAND what is happening is not in violation of items 2-5 above.
9. The practice of using blessed oil by the laity is governed specifically (in addition to these general principles) by the local Pastor and ultimately the diocesan Bishop.
This instruction clearly does not prohibit the use of oil, or the lay on hands that is associated with it. What it means is that they laity can NEVER substitute the Sacrament of Anointing of the Sick with their own anointing. If the situation is one that a priest would normally administer oil, then the laity cannot do it.
Laity cannot use oil in such a way that is equivalent to the Sacrament of Anointing of Sick even though they are not intending to do the Sacrament. This probably prohibits many charismatic groups from using oil in the way they do.
Laity cannot use oil in such a way that they essentially co-opt a role that really belongs to clergy. This too will prohibit the way typical charismatics use oil.
What is also important to see here, is that even if all criteria is met to allow a layman to use oil, if there is misunderstanding on the part of on-lookers, then it is not to be done. All involved must be properly catechized.
The situations in which oil and laying on of hands can be used are in situations in which there is some sort of paterfamilias relationship. This would include laying hands on your children, your spouse, or others family members. A paterfamilias relationship also may exist between a Spiritual Director and a directee or a Counselor and counselee (even the Spiritual Director or Counselor is not a priest). Even in these paterfamilias relationships, however, the non-priest can never use this privilege as a replacement for the Sacrament of Anointing which must be administered by a priest.
In other words, we cannot do these actions in such a way that too closely resembles that which is reserved to a priest. As long as we are cautious about that and those prayed over, and those on-looking are properly catechized about this, laying on hands can be done by laity.
The use of Holy Oil must not be the Sacramental oil blessed by the Bishop. If we use oil it must be oil that blessed in the normal way by a priest like that of Holy Water. Thus, oil given a normal blessing can be used by the laity in a similar way as Holy Water. Holy Water represents a washing clean factor, and is a reminder of our baptism and our baptismal promises. Blessed Oil represents a healing factor, and is a reminder of our confirmation and the fullness of the Holy Spirit indwelling us, and our promises to live a Godly life.
If we understand the differences between Sacramental Oil and regular blessed oil, and understand the differences between the Sacrament of Anointing and what laity might do with its limitations, then we can be okay in the practice.
We must always remember that the Particular Sacramental Power of Healing is reserved to clergy.
Ellen also has a grain of truth concerning the possibility of becoming demonized when laying hands on someone. We have had clients who became demonized after having hands laid upon them. There is a phenomenon called transference. A demon can transfer from one person to another through laying on hands. This is why one should not lay hands on a person too quickly and a person should not allow someone to lay hands on them too quickly.
A: The Church’s concern is that laying on of hands not be a gesture that too closely resembles the actions authorized to priest, such as in the Sacrament of Anointing.
Otherwise, a layman may lay hands on someone in prayer if they have that person’s permission.
Laying on of hands in circumstances of possible demonization, however, can be very dangerous, and should not be attempted by those untrained in deliverance work. In this situation, laying on of hands can even cause a transference of the demon from the person being prayed for to the person saying the prayers. I know of several cases of this happening. No one should be attempting deliverance on someone else unless they are called by God and are thoroughly trained.
Isn’t Energy Healing and Laying on of Hands the Same Thing?
Great question, MM, and now that you ask it, I’m actually a little surprised that it took two years for someone to pose it.
The only similarity between the methods used by energy healers and Christians who lay on hands is that they both use their hands – and this is as far as it goes.
In other words, the use of the hands in the Christian form is a symbol while in energy healing the hands have an actual function as a channel.
But that doesn’t stop proponents of energy medicine from luring Christians into their practices by drawing attention to this similarity. Some even go so far as to suggest that Jesus was an energy healer because of how He used His hands during healings. William Lee Rand, founder of the pro-Reiki International Center for Reiki Training actually suggested that because Jesus sometimes laid hands on people while healing them, He may have been using Reiki.
“There are many similarities between the laying on of hands healing Jesus did and the practice of Reiki,” Rand writes.
Naturally, he goes on to list only those episodes in the Gospel where Jesus used His hands to heal, leaving out all other methods such as the casting out of demons and healing by command. By deliberately “cherry picking” Scripture in this way, the result is a myopic and distorted view of the nature and purpose of the healing power of Jesus.
“Jesus was not channeling a universal energy, but was acting with the power of God,” writes New Age expert Marcia Montenegro.
Perhaps the biggest difference between energy healers and the Christian laying on of hands is the fact that energy healers claim to be manipulating an alleged energy force. When Christians pray over one another, we’re not trying to manipulate God’s power. We’re simply using our hands as a sign of intercession. Whether or not God wants to heal the person is left totally up to Him.
Energy healers have a whole different mindset. This is their power that they supposedly learn how to use through classes or attunement ceremonies such as those required for Reiki masters. True biblical healing is never based on a belief in one’s own power, but is based solely on the power of God.
You should also beware of those who say Christians can participate in these practices simply by believing that the energy comes from God. This can be a very dangerous delusion, particularly in the case of techniques such as Reiki, which employ occult entities known as spirit guides.
The bottom line is that energy healers are to be avoided by Christians. They are not only practicing a bogus science that won’t help you anyway, but many of them also dabble in other New Age modalities, some of which – such as Reiki – are effected through occult agencies.
Why is it dangerous to lay hands on others and pray?
If a person has a gift of healing, can he lay hands on the person and pray or does he needs an approval from the Bishop, priest or spiritual director?
On Question One: It can be dangerous to lay hands on others for prayer. The reason is that it is possible to have a demonic transference from one person to the other. Thus, one needs to be careful.
The first rule is to ask permission of the person you are praying for before you lay hands on them.
The second rule is to pray for protection of the person being prayed over and for yourself.
The third rule is only one person, the leader of the group, actually lay on hands.
I generally refuse to have anybody lay hands on me from the Charismatic Renewal unless I know the person very well. The reason is that there is so much malpractice, I guess one could say, in the practice of the charismatic gifts of those in the Renewal.
I have had clients who have become demonized because of the laying on of hands of those in the Charismatic Renewal.
The Bottom line is that we should not lay hands on someone too quickly, and then only with permission of the person, and after preparatory prayer or protection.
On Question Two: It is very important that anyone who believes they have an extraordinary such as healing, miracles, or private revelations be under the discernment and advice of a Spiritual Director. To not have a spiritual director is dangerous in that we may think we have a gift when do not, or if we do have a legitimate gift we may not use it properly or interpret it properly. We can never under any circumstances trust our own discernment. Such experiences need to be taken today spiritual director to validate the experiences and to receive advice.
To my knowledge is not required that a person with the gift of healing have any recognition or approbation from his Bishop. However, given the extraordinary nature of these sorts of gifts it would be prudent to discuss any apostolate that is to be conducted with the Bishop or his designee.
On Question Three: The discernment to lay hands on someone prayer is a subjective one. Person must listen and seek the advice of the Holy Spirit. There is no formula for this. This is where many years of experience may benefit.
In that regard, one should not fear making a mistake. God can make lemonade out of the lemons we create. It is only through mistakes and falling down that we learn how things should be, if we allow God to teach us through those mistakes.
Here is the Vatican document on Prayer for Healing. –Bro.
I read the question of “Laying on hands” posted by Lessly on the 12th September on this forum. I have found it important to share your answer and introduce my friends to this website. Therefore, I’ve shared it on my Facebook.
Your friend has made a mistake that is very common among people who do not have genuine knowledge and experience in spiritual warfare and deliverance. One can be attacked by the devil regardless of how filled with the Spirit one is – Jesus was attacked by the devil. St. Padre Pio is an excellent example of this. He was physically attacked by demons every day. The reason he was attacked is because he was so holy and thus he was a great threat to the devil. These attacks were based on the devil trying to get revenge because of a person’s holiness and mission from God.
The other kind of demonic attack, which we are speaking about here, is triggered by our concupiscence. No matter how strong one may think they are in the Spirit, if such a person becomes presumptuous that will allow the devil to harass him. Presumption and pride are sins. It is presumptuous to lay hands on a person without their permission. It is presumptuous and prideful to lay hands on a person without first praying prayers of protection. It is deadly presumptuous to think that because one is strong in the faith that they cannot be attacked. The Bible tells us “pride goes before a fall”. It is also presumption and pride when a layman lays on hands in a manner that too closely resembles what is restricted to priests.
I personally know people who have become demonized through the laying on of hands by people who did not know what they were doing and who were presumptuous and prideful.
In terms of deliverance, no one should attempt a deliverance on someone unless they have been trained and evaluated by an experienced deliverance counselor who does know what he is doing (and some people who call themselves deliverance counselors do not know what they’re doing).
The bottom line: don’t play doctor when you barely know first aid. –Bro.
Is it true that a person who’s not spiritually prepared to lay hands or “pray over” can be opened to transference of evil spirits like spirit of anger etc, from the person being prayed over to him/her praying over?
It is true that one should not too quickly lay hands upon another person in prayer as there can be a demonic transference. A person who lays on hands needs to know what they are doing and be properly prepared (which nearly no charismatic who does this qualifies).
On the question about St. Paul’s teaching that we are not dealing with flesh and blood but with evil spirits, this is not myth. This is true. The author of evil is the devil. Although men can be evil in their own right, oftentimes the evil that men do are accompanied by demonic influence.
We see this in the story of when Jesus said to St. Peter, “Get thee behind me Satan!” Peter was well intentioned and did not realize that his words were actually inspired by the devil. Jesus knew the real source, however, and chastised not Peter, but Satan.
We need to remember that our ultimate enemy is not each other, but the devil.
On the third question, yes, this “praying over” is a fad these days and it can be problematic for similar reasons as laying on hands.
Perhaps you would be interested in the essay, Charism Gifts Building up the Church. This essay details some of these things and gives the pros and cons of these practices. –Bro.
I was very disturbed when a friend I’ll call “Corrine” informed me that she thinks “got” cancer when I prayed over her some time ago. We would pray together infrequently in a small group especially when someone was experiencing one “crisis” or another.
Our prayer nights always included praise music and spoken prayer and usually finished with anointing with holy oil and prayer for healing of sickness or disease, troubled relationships, strained finances, etc.–whatever the problems seemed to be. Everything was always very prayerful and very Christ-centered.
The night in question was supposed to be for a woman I’ll call “Debra” who had just been diagnosed with cancer, and this coming on top of a recent separation from her clinically depressed husband. Debra was not feeling well and backed out at the last minute, but we went ahead and focused our prayer night towards her needs anyway.
Corrine volunteered to “stand in proxy” for Debra and be anointed and prayed over on her behalf–something we had done for others previously.
Corrine now claims that in being prayed over on behalf of her friend with cancer, the cancer somehow “transferred” to her body! Debra’s cancer did go into remission, and the cancer that mysteriously showed up in Corrine months later was Debra’s exact same rare type–a type of cancer that Corrine’s doctor says she should not have developed.
Various other medical and spiritual coincidences, that I will not bother detailing here, have convinced Corrine that her cancer was the result of my praying over her! She now believes that we were somehow “messing with” spiritual powers and that there must have been some demonic element present that night. In fact, she prefaced this disclosure about her beliefs regarding her cancer with a question about Reiki and other forms of “healing” prayer and practices. Needless to say, I am stunned to think that innocent, Christ-centered prayer for healing on behalf of an absent friend could somehow result in such a tragedy. None of us had ever had any dealings with the occult, and there was never anything remotely new age about our prayer nights.
What in the world do I tell her other than: “Don’t worry, I promise never to pray for you again!”?
Thank you for asking about this situation because it relates to a very important points and cautions concerning some prayer practices.
First, I should mention that I do not have a disdain for the Charismatic Movement per se. I have charismatic gifts myself, and I teach others how to find and use their charismatic gifts.
My criticism of the Charismatic Movement in the Catholic Church is 1) that so many of the people in the movement are contaminated with Pentecostal charismatic ideas; and 2) Charismatics tend to view the world and evaluate the world around them and their experiences with emotional and subjective eyes which is contrary to the faculty of reason that is taught by the Bible, the Church, the advice of the Saints, and by plain common sense.
As for your friend Corrine, regardless of the unusual “coincidence” of her contracting this rare form of cancer and Debra’s remission of the same cancer, this most likely does fall within the mathematical probabilities of coincidence. We need to be careful jumping to conclusions to a spiritual cause or source. Corrine contracting this cancer may, in fact, be mere coincidence. People in general are unaware of how some very remarkable events that appear miraculously interlinked actually do fall within the mathematical probabilities of coincidence.
There are three practices common with charismatic healers and deliverance counselors for which one needs to be very careful: 1) laying on of hands; 2) praying in tongues; and 3) praying by proxy.
1) Laying on of Hands, it is possible to have a demonic transference by touching a person who is demonized. This should not be attempted as a matter of course, and should never be done without specific permission of the person.
2) Praying in Tongues, often in conjunction with the laying on of hands, can be a really serious problem if those tongues are not from God. While tongues speakers will fight tooth and nail that their tongues of from God and produces good fruits, the facts do not always bear that out.
Thus, while laying on of hands and praying in tongues, the pray-er could be actually cursing the person for all he knows.
Speaking in tongues is one of the symptoms listed in the Official Rite of Exorcism of the Church as a symptom of demonization. There are many cases of people demonized through people laying hands upon them praying in tongues.
There is no valid reason to speak in tongues to begin with when doing healing and deliverance work. And since tongues is so easily counterfeited by Satan and since we cannot know what we are saying, why take the risk. St. Paul said that it is better to understand what one is saying.
3) Praying by Proxy, can also be dangerous as one is “standing in” for another and by that may be attacked by the demons of the person being prayed for.
Someone else, usually the practitioner, stands in for the client. Receiving the notes from the session, usually confirms the experience of the session, for the client.
If you consider that our body-mind-spirit system at a sub-atomic level is a vibrating field of frequencies, it becomes hard to distinguish where one energy field begins and ends. This observation by scientists of unified field theory that we are all interconnected. A vibration change in one part of the system is felt throughout the system or universe much like stubbing your big toe is felt throughout your body.
The theory is that we are all interconnected cosmically and thus a proxy can be the focus of energy that is sent out to the absent person to affect them for healing or deliverance. This theory is part of the energy-flow-connection-universe cosmology of oriental occultism. On a mathematical perspective this theory borrows from the Butterfly Effect of Chaos Theory (that a butterfly flapping his wings in India can cause a tornado in Kansas) but believes that the effect can be directed specifically to the intended person.
Although the Charismatics are unaware of the source of the concept of “proxy”, they are, nevertheless, involving themselves in an activity that is not based in Christianity and that can be spiritually dangerous.
Daniel intercedes for his people.
In chapter 9, where Daniel prays for his people, we discover that he prays intercessory prayers as if he, Daniel, is the transgressor. He says, “We have sinned and done wrong” (verse 5). “We have not listened to your servants the prophets” (verse 6). “To us, O Lord, belongs open shame” (verse 7) etc.
Daniel understood the key to intercessory prayer is to “stand in” for the guilty by proxy, praying their prayers for them—as if you are the transgressor.
In Charismatic circles there is a common expression that is used, and it’s called standing proxy for someone. And sometimes someone will go forward in a meeting for prayer and they will say, “I don’t have a need myself, but I’m standing proxy for someone else. There is someone who is at home lying in bed sick, and so I’m standing in their place and I want you to pray over me as though you were praying over that person.” It’s the same kind of thing. You actually become that person and pray as that person in the spirit. Therefore you can pray with full authority on that person’s behalf.
Perhaps the person you’re praying for has been beaten into unconsciousness and is dying and therefore cannot pray for themselves, but their spirit has reached out to God. God will move upon you as an intercessor and you will enter into the experience of that person who’s lying unconscious, and you will pray for them the prayer that they cannot pray. And you will release the authority of God to bring about deliverance, victory and healing or whatever is needed.
This language “And you will release the authority of God to bring about deliverance” is remarkably similar to the witches explanation of proxy “releasing” energy toward the absent person to heal them.
In addition to this procedure having a smattering of mediumship to it, these Pentecostals have taken a passage from Daniel and invented a prayer technique that Daniel never practiced.
This is just an intercessory prayer. Daniel is not standing in proxy.
This is an example of the poor thinking, weak theology, and subjective analysis that is typical with Pentecostal Charismatics.
The idea of proxy is a Pentecostal contamination and should not be practiced by Catholics.
As Catholics we have intercessory prayer from ourselves and through the Saints; the dubious proxy method is not needed.
You ask how bad things could come from a prayerful and Christ-centered prayer meeting. Bad things can happen no matter how well intentioned and devout a person is because of ignorance and misunderstanding of the person about these issues. This is one reason to stay close to the Church and the Catholic worldview instead of borrowing things from other sources.
Do not give the devil the opportunity is a well advised cliché. Avoid Pentecostal and pseudo-Pentecostal techniques that are not consistent with Catholic theology and worldview.
In addition to all of this, the other problem is people messing with spiritual things when they are not qualified to do so and do not really know what they are doing. This is another tendency of charismatics. This lack of qualification is seen in the use of proxy prayer to begin with and also on the selection of who will stand-in as proxy. Your friend Corrine, from the description of her reaction, does not appear mature enough and strong enough in her faith to have offered herself in proxy.
If proxy was something that we could do wisely, I would never allow anyone to stand-in as proxy without about four years of training in spiritual warfare and an additional five years of experience and formation.
The proper thing to have done for Debra was for the group to pray for her with the normal intercessory prayers that we typically pray.
As for Corrine’s illness, it is probably a coincidence, but there is an outside and rare chance of a possible demonic involvement in her illness — especially if there was a demonic element in Debra’s life.
Some years ago, I attended a Charismatic prayer meeting in my parish church. No priest was present at this meeting. During the meeting, we were invited to talk about what was troubling us in our lives, and offered help. That day I had been involved in a bad row at work over which I was still angry. People spoke about various things that were troubling them. I felt compelled to join in, and mentioned the first thing that came into my stupid head; namely the row at work.
At the end we were asked to come up for a blessing and laying on of hands for healing, from a parishioner that I knew. At the end the layman called up people by name and putting his hands over them he called down the “spirit” to heal them. To my surprise he called me up and offered me the same thing.
Your gut-feelings are accurate. While there is a time and place where laymen may lay hands on people to bless them (such as a Father blessing his children), we must be very careful not to do something that too closely resembles that which is reserved to a priest. That is not my opinion, but the official word of the Church.
The Charismatic Renewal can be a great asset to the Church, but it must remain close to the Church not only in orthodoxy but also in worldview. It must also remove from itself the contamination of “Pentecostalisms”. These Pentecostalism are practices derived from Protestant Pentecostals who are extremely flawed in their theology in this subject.
I would advise reading the detailed essay, Charism Gifts Building up the Church. This document details the good and bad things about the Charismatic Renewal and outlines the Pentecostalisms.
Why did you feel something was wrong and other’s didn’t? Because you, not they, were truly listening to the Holy Spirit.
Is there a danger in having a non-priest lay on hands?
I am a woman who has been in formation to become a religious sister and am recently out of the cloister and working with my bishop and spiritual director to begin a community of women to live our baptismal promises and see what it is that God may draw forth from that. So in essence, I am in discernment, but sort of like a sister-without-a-community-until-it-is-created, rather than a woman-looking-for-one. This seems important given the nature of my question for you.
When I began the road to of entering a convent, my first spiritual director who had a particular deliverance ministry emerging in his vocation and my superior sister formator both directed me to not let anyone pray “over” me or “lay-hands” on me, as a general rule, reserving these forms of deliverance for an ordained minister of our Church. I was told that if someone tries to pray “over” me to take their hands and ask them to pray “with” me. The basic understanding for this is that much diabolic transference happens from the best intentioned persons unawares. I was comfortable with this as it seemed quite sensible.
Also, in those early days of formation, I made a general confession and went through a full deliverance rite with the priest and some sisters present. It was a powerful experience. Not dramatic or over emotional, but extremely solid and and clarifying. We all witnessed the deadly things that had fastened to me in my prior lifestyle be extricated from my soul and I left a profoundly healed woman, lighter, brighter, and in great joy and peace. Shortly after that, I entered a Carmelite cloister and it seemed certain God had “cleared out” my soul to prepare me for this next step in this vocation. I am continually amazed at the steps he puts in place that I could compose this path on my own even if I wanted to!
It has been a few years since then. I was in Carmel for two years and have been out for one now. I am currently in this process of forming this new group, whatever it is that Our Lord will create, and actively striving to stay obedient to previous directions given to me in the spirit of trusting that no direction should be dispensed with of my own volition, until a superior advises me. This is my commitment to my vocation.
Recently there are some problems at the church I am working at. We have a pastor who is a survivor of intense trauma and we suspect that he is struggling on some personal level. This is our “assumed” explanation for some of his erratic and at times cruel or harsh treatment of parishioners and staff, including myself. Personally, I take it all as grace, and offer my own distress at mistreatment in exchange for a healing and hope in his vocation. It’s not something I think appropriate to discuss at length with people at this point as I take it to prayer and to my current Spiritual director (different from the one previously mentioned as I am in a different diocese now).
To get to the point of my question, there is an intercessory prayer group here that I highly respect for the depth and commitment of the prayer they do. They believe they are commissioned for a special ministry and it takes the form of charismatic prayer in terms of speaking in tongues and laying on of hands. They have had many confirmations over the years that this is the path Our Lord wants them on and I expect this is likely to be true.
It’s not mine to judge, but I do perceive these to be hearty, wholesome, centered in Christ and grounded people. They want to pray over the staff members who had had challenges with the pastor as a way of bringing deliverance to what they are suspecting may be a diabolical interference in the life of the parish. They want me to come tomorrow so they can pray over me, and lay on hands, etc.
I believe that by my vocation and previous direction, this would be disobedient to how I have been directed. When I mentioned this I was told by a wonderful deacon who leads the group that it would be problematic, as if I was somehow seeing myself as better than other people. And that maybe after I saw how it was happening with other people I would want to change my mind. I explained that if I did change my mind it would be more suspect because I would be breaking with obedience, and this would not be a show of humility but rather stepping out of line with my calling.
What does your experience tell you about such a dynamic? My previous spiritual director, who is now an exorcist and a great resource for this question happens to be on retreat, so I feel oddly out in left field and don’t want to make this decision without some clerical input. Am I being vain and presumptuous to not want this kind of prayer? Am I justified in my reason being that I don’t want to be disobedient, or is it that a fabrication which is incorrect? I understand from what I have seen in deliverance that it’s best if lay persons pray with people and only ordained persons pray “over.” Do you think there is merit or actual canonical support for this view?
I praise God for your vocation and will pray for you in the formation of a new community. Forming a new community is extremely difficult and one that will usually attract the harassment of the devil, both through spiritual means and by using people.
As to laying on of hands, one must always been very careful about doing this or allowing it to be done to oneself. It is true that demonic transference can take place. Except when a priest lays on hands during the Sacrament of Anointing, the Rite of Exorcism, or in prayers reserved to priests where laying on of hands of part of the rubrics, it can be just as dangerous when a priest lays on hands in these extra-Sacramental situations, such as deliverance — especially a so-called charismatic priest. I have had to pick up the pieces of more than one poor soul who has been harmed by charismatic priests.
If the laying of hands is done with the permission of the person, and the person doing the laying of hands is doing it with proper theology, intention, purpose, and methodology then there is nothing wrong with laity doing this as long as how they do it does not too closely resemble the gestures of what a priest does in the Sacraments or in prayers reserved to priests. By the way, I am talking about a single person laying on hands, not a crowd doing so. It is common among charismatic circles to have the whole prayer team laying hands on the person. That is never to be done.
The charismatic renewal has a profound history of abusing the laying on of hands and of arrogantly thinking they are qualified to do deliverance. No one should be doing deliverance as an apostolate unless they are trained by competent people. As a whole the Charismatic Renewal is decidedly unqualified to do this apostolate.
Training in deliverance is far, far more than knowing some prayers and a little theology. To do deliverance properly is a multi-disciplinary endeavor. One needs to know some psychology, psychiatry, medicine, counseling techniques, investigative techniques, interviewing skills, critical thinking skills, logic, and even some physics. A weekend or week long training is sorely inadequate.
Our training academy is the most extensive in the world. To graduate as a deliverance counselor with us takes around three years of academics and clinical training, an year-long internship, and after graduation an additional three years of residency, before one is truly ready to go out and form their own apostolate, if that is what they want to do.
The remarks of this charismatic deacon that you mentioned is very troubling. His arrogance is typical among the charismatics. He has no business trying to convince you to break what you perceive as an obligation of obedience, especially about something that is not even needed in doing deliverance. Christ wants our obedience more than our sacrifice. Frankly, given that deacon’s attitude, I would advise you to have nothing to do with that group.
While laying on hands, in the right context, with the right understanding and theology, and in the right manner can be done by laity, laying on hands is NEVER absolutely needed in deliverance.
Speaking in tongues is another issue. This practice is profoundly dangerous and totally unnecessary. We have an extensive essay that evaluates the pros and cons of the Charismatic Renewal, including the issue of speaking in tongues, a practice that is often counterfeit, even though the “speaker” does not realize that. In the essay we relate a couple of stories by priests who discovered people speaking in tongues that were cursing God and did not know it, or were otherwise exercising false gifts. St. Paul said, “… I would rather speak five words with my mind, in order to instruct others, than ten thousand words in a tongue” (1 Cor 14:19).
There are thousands of ways in which tongues can be faked, counterfeited by the devil, or misused. How can we know, when we do not understand what is said? There is patently no valid reason to use tongues in deliverance, and hundreds of arguments to show its danger. I would advise that you read and study that document before even thinking about working with a charismatic group: Charism Gifts Building up the Church.
We are Baptized in the Holy Spirit in the Sacrament of Baptism and the Sacrament of Confirmation. There is no other “Baptism” in the Holy Spirit, properly so-called.
The suggestion that the Charismatic experience is needed to be a focused and mature Christian is arrogance and contrary to Church teaching. One can reach a point of saying “Jesus is Lord” and have a mature and spirit-filled Christian life without ever having any Charismatic experience. One might note that most of the Saints never experienced a “Baptism in the Spirit” as practiced by the Charismatic Renewal.
The term “Baptism of the Holy Spirit” was invented by Protestant Pentecostals. The Pentecostals do not believe in the Sacrament of Confirmation and thus when they read the passages in the Book of Acts concerning this, they could only interpret it as some experience that is extra-sacramental that happens at some future date in life. This is false.
Q1: If the gift of tongues is so “unimportant” then why is it mentioned more than any other in the Acts of the Apostles? It seems that EVERY time a new group of believers is identified and prayed over, the gift of tongues is released.
A. As mentioned in the essay, tongues in this reference was a Sigil Gift that was meant to authenticate the presence of the Holy Spirit. In this case, in the Book of Acts, we are dealing with the Sacrament of Confirmation and NOT some extra-sacramental “baptism” of the Spirit. The reason the Pentecostals misinterpret this, and why they mistakenly call their experience “baptism in the Spirit” is because they do not recognize the Sacrament of Conformation and thus they misinterpret the passages in Acts to be something other than what we know is the Sacrament.
The only time that the Holy Spirit “enters” us upon laying on of hands is in the Sacraments (e.g., Baptism, Confirmation, Holy Orders). The phenomenon that I think you are talking about where a person falls down is called, among other things, fainting in the spirit. The idea is that the person is overwhelmed by the presence of the Holy Spirit that they faint, fall down.
May a person receive a blessing instead of Holy Communion?
1. The liturgical blessing of the Holy Mass is properly given to each and to all at the conclusion of the Mass, just a few moments subsequent to the distribution of Holy Communion.
2. Lay people, within the context of Holy Mass, are unable to confer blessings. These blessings, rather, are the competence of the priest (cf. Ecclesia de Mysterio, Notitiae 34 (15 Aug. 1997), art. 6, § 2; Canon 1169, § 2; and Roman Ritual De Benedictionibus (1985), n. 18).
3. Furthermore, the laying on of a hand or hands — which has its own sacramental significance, inappropriate here — by those distributing Holy Communion, in substitution for its reception, is to be explicitly discouraged.
4. The Apostolic Exhortation Familiaris Consortio n. 84, “forbids any pastor, for whatever reason to pretext even of a pastoral nature, to perform ceremonies of any kind for divorced people who remarry”. To be feared is that any form of blessing in substitution for communion would give the impression that the divorced and remarried have been returned, in some sense, to the status of Catholics in good standing.
5. In a similar way, for others who are not to be admitted to Holy Communion in accord with the norm of law, the Church’s discipline has already made clear that they should not approach Holy Communion nor receive a blessing. (My emphasis) This would include non-Catholics and those envisaged in can. 915 (i.e., those under the penalty of excommunication or interdict, and others who obstinately persist in manifest grave sin).
The Congregation appears to be studying the issue, but in the meantime this practice of people coming forward to receive a blessing is illicit.
The priest’s blessing at the end of Mass includes everyone present thus there is no need to present oneself in the communion line for a blessing.
Personally, I think one reason this illicit practice began and flourishes is that liberals did not want to single out those not receiving and thought it was more compassionate for them to avoid the embarrassment of remaining in their pew.
Only the leader should lay on hands. This should be done, however, only with the client’s permission. Laying on hands indiscriminately can be dangerous. It is possible to effect a demonic transference. I have seen this happen with Charismatics laying on hands imprudently and without thinking.
NOTE: In this report I may occasionally use bold print, italics, CAPS, or word underlining for emphasis. These will be my personal emphasis and not that of the source that I am quoting. Any footnote preceded by a number in (parenthesis) is my personal library numbering system.
Note: A doctrine is a teaching of Holy Church and must be believed by all.
The four Gospels have numerous accounts of Jesus laying hands on people to bring about healings, deliverances and even the raising of the dead. The scripture I quoted above has Jesus telling us to follow Him and do as He did. Therefore, we should lay hands on others when the opportunity presents itself. I have been involved in healing ministry since about 1985 and I almost always lay hands on people when I pray for them.
DO; and greater than these shall he do”. Again, one of Our Lord’s frequent works was the laying on of hands.
About 27 years ago (witnessed by our son who was age five at the time), my wife was cutting vegetables. The knife slipped and cut her finger to the bone – blood everywhere! She placed her hand over the cut and prayed for healing. She went to the sink and rinsed off the blood. To her amazement she found the finger 100% repaired and healed – no sign of the cut and no scar today!
If I can further be of assistance, please ask.

matches:
art. 9
§1
§3
art. 6
§ 2
§ 2


text:
Under a business relationship of several years' standing, the Italian plaintiff supplied mattresses to the Swiss defendant. A dispute which had arisen over the goods supplied was the subject, in December 2000, of an accommodation agreement concerning the defendant's payment of its arrears and the plaintiff's guarantee obligation. As a result of that agreement, the defendant paid part of its arrears. With regard to the outstanding balance, the defendant maintained that its obligation had been extinguished as the plaintiff had refused to take back the defective mattresses. The plaintiff then claimed that amount before the competent court. As to the defective mattresses, the plaintiff stated that it was not liable for the defects in them but that they were attributable to harmful handling by the defendant or its customers, and that, in a conciliatory gesture, it had even supplied new mattresses, without any acknowledgment of liability on its part.
The court examined the agreement concluded between the parties in the light of the CISG, interpreting it in accordance with its article 8. On the basis of the contents of the agreement and the custom and practice between the parties, the court concluded that the plaintiff's guarantee obligation included a duty not only to supply new mattresses free from defects but also to take back the defective mattresses. The court nevertheless rejected the applicability of one clause of the agreement, according to which a delay by the seller in exchanging defective goods would cause any unsettled instalment payments to be forfeited. On the basis of the criteria set out in article 25 CISG, the plaintiff had in effect honoured its essential obligations since the non-performance related solely to a minor and ancillary duty. The principle of good faith as established in article 7 (1) CISG did not allow the defendant to rely on the aforementioned clause. However, the defendant was justified in refusing to pay the outstanding balance until the defective mattresses had been taken back by the plaintiff.
A counterclaim by the defendant seeking damages for the replacement of defective mattresses supplied to its customers between 1997 and 2002 was rejected. The court interpreted a settlement clause in the agreement as meaning that it excluded any claims for damages. Also, the defendant, despite an order by the court, did not sufficiently demonstrate its loss.
- Litigation fees in the amount of Swiss francs [CHF] 467.00.
"3. [Buyer] has to bear the costs of the proceedings"
"3. [Seller] has to bear the costs of the proceedings "
1. Plaintiff [Seller], who is also Defendant against the [Buyer]'s counterclaim, lodged its claim on 26 October 2001. [Buyer] filed its defense and its counterclaim on 5 February 2002. Thereafter [Buyer] provided the required deposit in the amount of CHF 13,000.00. On 18 April 2002, both parties were summoned to attend a hearing before the judge. However, they could not agree on a settlement of the dispute. Consequently, on 22 April 2003, continuation of the trial by way of written proceedings was ordered by the Court. On 26 August 2003, [Seller] submitted its reply to [Buyer]'s defense and its own defense to [Buyer]'s counterclaim. By rejoinder submitted on 19 November 2003, [Buyer] responded to both. After further submissions of [Seller], the hearings were ended on 10 March 2003.
2. The case is ready for decision.
1. [Seller], a limited liability company established under Italian law in 1997, produces and sells mattresses. [Buyer], a public company, was established in 1992. It engages in national and international trade with goods of all kind, as well as in the consulting of corporations and other entrepreneurs in the respective field of business.
"In May and September 1998, M [Seller] delivered on A's [Buyer]'s order various mattresses to A & Partner Inc. in Florida (USA) for the total amount of DM 83,255.00.
"In 1999 and 2000, [Seller] delivered more mattresses for the amount of DM 121,861.00 in total, pursuant to [Buyer]'s order directly to [Buyer]'s place of business in Glattbruck.
- 1. On condition that both Parties will sign and adhere to this contract which shall not have any prejudicial effect, [Seller] reduces the payable amount to DM 121,861.00. In turn, [Buyer] hereby expressly acknowledges that it owes payment of the said due amount of DM 121,861.00.
- 3. [Seller] agrees to provide [Buyer]'s customers with substitute goods as replacement for deficient mattresses over the full 12-year-term of warranty.
- 4. Payments shall be processed to the clients account ("Klientengelder-Abwicklungskonto") of CMS (...) at UBS-Löwenplatz, P/O Box, Zurich.
- 5. In case of default concerning one of the aforementioned installments, all outstanding payments shall become due with immediate effect. Furthermore, [Seller] may then pursue its claim for payment of DM 83,255.00 for deliveries to the US before a court.
- If [Seller] fails to provide replacement for deficient goods within a period of 15 days, any claim for payment of remaining installments shall be forfeited.
- 6. Both parties declare that by execution of this agreement any mutual claims - per saldo -shall be settled.
- 7. This Settlement Agreement shall be governed by Swiss law. The Commercial Court of the Canton of Zurich shall have exclusive jurisdiction over any dispute arising from, or related to this agreement."
The parties complied with their obligations under clause 2 of the Settlement Agreement: [Buyer] paid a total amount of DM 61,861.00 to [Seller]. [Seller] replaced 70 deficient mattresses. By note of 12 April 2001, [Buyer] asked for replacement of other deficient mattresses. [Seller] denied its liability in this matter, but in the further course of correspondence, on 14 May 2001, announced the delivery of twelve new mattresses "solely as an act of goodwill without acknowledging any legal obligation and without prejudice." However, [Seller] refused to take back the twelve supposedly deficient items. By letter of 17 May 2001 [Buyer] declared its duty to pay the remaining DM 60,000.00 forfeited under clause 5 paragraph 2 of the Settlement Agreement because [Seller] had refused to take back the deficient goods after a fifteen-day period, which had commenced on 2 May 2001, had expired.
3. [Seller] mainly demands payment of the open amount of DM 60,000.00 based on clause 5 para. 1 of the Settlement Agreement as well as payment of DM 83,255.00.
[Buyer] seeks the dismissal of [Seller]'s claim. [Buyer]'s counterclaim concerns damages for deficient deliveries. [Seller] pleads for the dismissal of [Buyer]'s counterclaim.
4. Further relevant submissions of the parties are discussed in the following sections.
1. In its reply, [Seller] amended its claim to the extent that it now seeks payment of Euro amounts equivalent to DM 83,255.00 and DM 60,000.00 based on the applicable official exchange rate of 1.95583 DM per Euro.
2. According to Para. 61(1) of the Swiss Code of Civil Procedure (Zivilprozessordnung; ZPO), a plaintiff may amend its claim within the jurisdictional scope of the venue, or put forward additional claims, provided that these claims are closely connected to the plaintiff's original claim. The competent court may refuse such amendment if it has a fundamental impact on the defendant's legal position or its rights, respectively, or if it causes undue delay of the proceedings.
The amendments [Seller] made became necessary because of the currency transition from Deutsche Mark to the Euro. [Seller] correctly based its conversion on the official exchange rate. Such amendment as a mere formality is generally admissible.
1. a) [Seller] submits the following: [Buyer] had not paid the third installment of DM 30,000.00 until 30 June 2001. As a consequence, the fourth installment and the amount of 83,255.00 became due as stated under clauses 2 and 5 para. 1 of the Settlement Agreement. Concerning the twelve mattresses which had been the subject of [Buyer]'s complaint of 12 April 2001, [Seller] denies its liability: The claimed defects did not fall within its responsibility, but resulted from damages caused by [Buyer], respectively, its customers. Moreover, the liability [Seller] had assumed under warranty clause 3 of the Settlement Agreement only concerned deliveries that had taken place in 1999 or 2000. However, the goods in question had been sent before that time, and thus, pursuant to clause 6 of the Settlement Agreement, were excluded from the contractually attained liability. In any event, the twelve-year warranty which anyway, only referred to a guarantee of the durability and un-deformability of the mattresses. Also, [Buyer] had failed to give timely notice of the claimed defects and therefore had forfeited any right to compensation.
In eventu, the Court assumed [Seller]'s liability for the defects, [Seller], however, points out that: Its delivery of twelve replacement products had been solely an act of goodwill. [Seller] was under no legal obligation to take back the mattresses that [Buyer] deemed deficient. Such duty could not be derived from the Settlement Agreement, nor from any previous deliveries, nor had such duty been established by way of common trade usages. But even if such duty existed, its violation, under the principle of good faith, could never amount to consequences as stipulated under clause 5 para. 2 of the Settlement Agreement.
b) [Buyer] denies that it defaulted on clause 5 para. 1 of the Settlement Agreement, as [Seller] had not sent the necessary remainder. However, in the event the court assumed that [Buyer] was in default, [Buyer] submits that the twelve mattresses, which were subjects of its complaint, had indeed been deficient: Some were moldy, others had broken seams, or handles torn out. Due to their vacuum-sealed wrapping, examination of the goods had first become possible when the goods had been delivered to [Buyer]'s customers, at their final destination. In its immediate complaint of 12 April 2001, [Buyer] had recorded and specified every single defect for each mattress. Also, [Buyer] argues that the warranty [Seller] had assumed under clause 3 of the Settlement Agreement was by no means confined to a shorter period of time, or to particular circumstances. Hence, under the Settlement Agreement complaints could be made within the twelve-year period. But even on the assumption of a two-year warranty, [Buyer] had not lost its rights to damages as concerns the deliveries of 22 February 2000, as [Buyer] submitted its first letter to take legal action in this matter on 5 February 2002. In any event, [Seller] would not be able to rely on clause 6 of the Settlement Agreement, as this regulation excluded further claims only in the event of the Settlement Agreement's proper execution.
[Seller]'s replacement delivery of twelve new mattresses could not be considered as merely an act of good will, as [Seller] had been legally obliged to do so under clause 3 of the Settlement Agreement. According to the wording of the clause, and in compliance with the established practices among the parties, this duty also obliged [Seller] to take back the defective mattresses. Such duty was also established by common usages within the mattress industry. Therefore, [Seller] was in default concerning its contractual duty of replacement of deficient goods, as it refused to take back deficient goods, albeit [Buyer] by letter of 2 May 2001 had requested [Seller] to do so within a period of fifteen days. Hence, [Buyer]'s obligation to pay the remaining amounts would be forfeited pursuant to clause 5 para. 2 of the Settlement Agreement.
2. In clause 7 of the Settlement Agreement, the parties subjected themselves to Swiss law as the applicable law to govern the contract, which according to its caption should settle open claims related to the order and delivery of mattresses. This leads to the application of the CISG: Switzerland is a Contracting State to the Convention, which as an international body of harmonization regulations prevails over the national Swiss Law of Obligations (Obligationenrecht; OR) (Keller / Siehr, Kaufrecht, 3d ed., 1995, p. 158). The parties have never excluded the application of the CISG as provided for under Art. 6 CISG. The Settlement Agreement entails sales and trade law provisions that regulate the duty of payment and liability for defective goods. It thus modifies previously concluded sales contracts in the sense of Art. 29(1) CISG (Schlechtriem / Schlechtriem, supra, Art 29 note 3). Both parties presuppose the application of the Convention.
3. The Court needs to decide whether [Seller]'s title to payment has indeed expired pursuant to clause 5 para. 2 of the Settlement Agreement. The related question of [Buyer]'s default will be considered subsequently subject to further necessity.
a) [Seller] relies on its assumption that, with regard to the twelve mattresses subject to [Buyer]'s complaint on 12 April 2001, [Seller] had neither been liable under the contractual warranty, nor had [Buyer] complied with its duties to examine the goods and to give timely and specified notice. The Court does not need to decide whether this was actually the case. Unquestionably, [Seller] sent [Buyer] twelve new mattresses on 14 May 2001. Irrespective of the fact that [Seller] explicitly denied being under a legal obligation to do so in its letters of 3 May and of 17 May 2001, there is no reason why the provisions of the Settlement Agreement that govern the replacement of goods should not apply to this case at issue. In one of its briefs [Seller] itself presumed that by providing the replacements it had complied with its contractually attained liability. This corresponds with the fact that [Seller] first refused to take back the goods, but then in its response to [Buyer]'s letters agreed to deliver twelve new mattresses as a replacement.
b) aa) Due to the parties' controversy on the question of whether [Seller] had been obliged to take back the mattresses under the contract, the Court must find the true interpretation of the relevant provisions of the Settlement Agreement.
According to Art. 8(1) CISG, statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was. If Art. 8(1) CISG is not applicable, statements made by or other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances, Art. 8(2) CISG.
bb) Due to the fact that the parties have not made any submissions, the Court is unable to determine the true intent the parties may have had when agreeing on clause 5 para. 2 of the Settlement Agreement. [Buyer] merely submitted that, within the course of preliminary negotiations to the Settlement, it had pointed out that the duty to provide replacement would include the duty to take back defective deliveries. However, [Buyer] did not submit anything as to what [Seller]'s reaction to this matter was. Hence, the Court has to find out the objective meaning, i.e., the understanding a reasonable person would have had.
[Seller] refers to the wording of clauses 3 and 2 of the Settlement Agreement, which literally would only provide that deficient mattresses shall be replaced. However, [Seller] acknowledges that, in its exact, wording clause 3 states that [Seller] shall provide "substitute goods (that are not defective) as replacement for deficient mattresses." This corresponds to the provision in clause 5 para. 2 of the Settlement Agreement requiring the exchange of deficient goods, an expression that by its natural understanding implies the taking back of deficient goods. Equally, Art. 82(1) CISG, dealing with the delivery of substitute goods, entails the duty to take back defective goods. Under Art. 206(1) of the Swiss Law of Obligations, substitute goods shall be delivered in exchange for handing back the defective goods (Giger, Berner Kommentar, Art. 206 OR, N 25).
The consideration of the clear wording of clause 5 para. 2 of the Settlement Agreement must be given priority over all other criteria of interpretation according to Art. 8(3) CISG (Witz / Salger / Lorenz, International Einheitliches Kaufrecht - Praktiker-Kommentar und Vertragsgestaltung zum CISG, 2000, Art. 8 note 11) . This must be concluded given that the Settlement has been signed by two attorneys seated in Zurich. Therefore, it is irrelevant whether the parties have discussed the duty to take back deliveries during their negotiations. Neither party has submitted facts as to the content of these negotiations or, as to the intent of the agents acting on behalf of both sides.
The usage the parties had established in similar previous cases where deficient goods had been delivered, is of crucial relevance to the case at hand. [Seller] admitted that prior to and after the conclusion of the Settlement Agreement, it had always taken back singular defective goods when providing [Buyer] with substitutes. For instance, this had been the case when [Seller] replaced the seventy mattresses that were mentioned under clause 2 of the Settlement Agreement. The same happened when [Seller] replaced twenty-five mattresses in January 2001. [Seller] points out that in these cases the mattresses had been taken back as a mere gesture of goodwill while it had not acknowledged any legal obligation therewith. Thus, the parties had -- voluntarily -- established a usage which is equally relevant for the case at hand, where replacement had been provided voluntarily as well according to [Seller]. According to Article 9(1) CISG, [Seller] was bound to this usage. This adherence to established usages is derived from the principle of good faith and shall prevent a party from suddenly acting inconsistently within an established business relationship (Schlechtriem / Junge, supra, Art. 9 note 7). The German Federal Supreme Court (Bundesgerichtshof; BGH) held on this account that acts of mere goodwill that are not explicitly pointed out as such may have binding contractual effects pursuant to CISG regulations (Decision of 25 November 1998 in: NJW 1999 pp. 1260 et seq.). [Seller] itself does not allege having pointed out to [Buyer] on all previous occasions of defective deliveries that the substitutes were meant to be delivered merely on a goodwill basis.
Therefore, the Court does not need to decide whether the collection of deficient mattresses was customary within the parties' industry. Both the objectively existing consensus between the parties and the established practice according to Art. 3 and Art. 9(1) CISG shall be given prior consideration over the usages of the relevant industry (Witz / Salger / Lorenz, supra, Art. 8 note 12; Schlechtriem/Junge, supra, Art. 9 note 7). In any event, it has to be noted that, under CISG regulations, it falls within the [Seller]'s responsibility to provide substitute deliveries and to organize and account for the costs of taking back deficient goods (Schlechtriem / Huber, supra, Art. 46 note 53 et seq.).
Originally, [Seller] itself presumed to be obliged to collect the twelve defective mattresses, but then, however, refused to take back the goods after receiving [Buyer]'s letter of 2 May 2001. Thereafter, [Seller] -- in response to [Buyer]'s letter of 9 May 2001 -- offered a "replacement delivery."
cc) Considering all this, it must be concluded that the duty to provide replacement goods stated under clause 5 para.2 of the Settlement Agreement entails the duty to take back defective goods.
4. a) Concerning the twelve mattresses that had been the subject of its complaint, [Buyer] asked [Seller] to "provide for their collection within a period of fifteen days as according to clause 5 para. 2 of the Settlement Agreement" by letters of 2 May 2001 and of 9 May 2001. However, [Seller] only provided for the substitute delivery of new mattresses on 14 May 2001. As regards the collection of the old items, as required under clause 5 para.2 of the Settlement Agreement, the deadline set by [Buyer] had expired. Hence, [Seller] defaulted on its contractual obligations wherefore pursuant to clause 5 para. 2 of the Settlement Agreement all title to further payments shall forfeit. The same would have had to be concluded if one assumed that the fifteen days period began to run after [Seller] had received [Buyer]'s letter dated 9 May 2001, as [Seller] had argued in its response letter of 17 May 2001. In any event, the fifteen-day period expired before 30 June 2001, the payment date of the third installment.
b) aa) [Seller] argues that the legal consequences of its default that were stipulated under clause 5 para 2 of the Settlement Agreement in the particular circumstances of the case at hand meant undue hardship. Such case has not been provided for in the Settlement Agreement. Therefore, the Agreement must be amended on this point. [Buyer], on the other hand, denies this and refers to the conflicting interests of the parties.
bb) The CISG does not provide for a seller's default on taking back defective goods in case of a replacement delivery (respectively, in case of the avoidance of the contract). Such cases are to be decided by taking into account the reasonable interests of both parties in the particular case (Schlechtriem / Leser / Hornung, supra, Art. 81 note 19a). For the case at hand, the Court finds that it would be unreasonable if [Seller]'s default resulted in the forfeiture of all rights to further payments.
This can be drawn from Art. 25 CISG, which defines a fundamental breach of contract (that may justify the avoidance of the contract as provided under Art. 49, 51 and 64 CISG), as a breach resulting in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract. Whether this is the case will be decided considering the nature of the mutually agreed obligations as well as the particular circumstances of the case (Schlechtriem, supra, Art. 25 CISG notes 4 et seq, and 24). By way of the Settlement Agreement, [Buyer] and [Seller] intended to settle the differences that had occurred on several occasions since 1998 about the liability of [Seller] for defective deliveries. As the caption of the contract indicates, the Settlement Agreement mainly regulates the issues of the [Buyer]'s obligation to payment. This corresponds with [Seller]'s duty to provide replacement for deficient mattresses. Essentially, this duty under clause 3 and clause 5 para. 2 of the Agreement requires the delivery of new non-defective mattresses as substitutes. The duty to take back the defective goods is not essential to the Agreement. If the [Seller] fails to comply with this duty, the [Buyer] may take measures on its own initiative and dispose of the deficient goods. [Buyer] rightfully argues that this may mean some personnel costs and financial effort on its side. However, as the case at hand only concerned the collection of twelve deficient mattresses, [Buyer]'s effort can be regarded as inconsiderable. From an objective perspective, the interest in the collection of the old mattresses that could have reasonably been involved on [Buyer]'s side cannot be regarded as sufficiently substantial to constitute more than a mere accessory obligation.
Given all this, [Seller]'s failure to take back the mattresses should not amount to the same consequences as a default on the delivery of substitutes -- as the essential part of the duty to provide replacement -- would have amounted to. This conclusion also holds true under the principle of good faith in international trade, as stated in Art. 7 CISG.
c) Refusing to take back the twelve mattresses, [Seller] breached its obligations under the Settlement Agreement, and thus came in default. Only, due to the insignificance of this breach of contract, it may not amount to further consequences as stipulated under the Settlement Agreement. [Buyer]'s obligation to pay the two remaining installments of DM 30.000,00 on 30 June and 31 December 2001 remains.
5. [Buyer] relied on [Seller]'s refusal to take back the twelve mattresses, arguing that [Seller] had thus forfeited its right to payment. Therefore, [Buyer] refused to pay the two remaining installments. Based on clause 5 para. 1 of the Settlement Agreement, [Seller] claims that [Buyer] has been in default as concerns the payments of the remaining installments (1.), and that therefore [Seller] would be entitled to claim further DM 83,255.00.
a) According to clause 2 of the Settlement Agreement, the first of the installments relevant to the case at hand was due "on 30 June 2001 at the latest." Pursuant to the arrangement in clause 2 and clause 5 of the Settlement Agreement, which is compliant with Art. 59 CISG, [Buyer] became in default when failing to comply with its duty to pay (see Schlechtriem / Hager, supra, Art. 59 note 2). Hence, the Court has to decide whether [Buyer] was obliged to pay until 30 June 2001 as stated under the Settlement Agreement, despite [Seller]'s breach of contract, i.e., its refusal to take back deficient mattresses, for which [Seller] would have normally forfeited its right to payment, and/or whether [Buyer] had the right to refuse the payment of the installment.
b) As explained above, clause 5 para. 2 of the Settlement Agreement stipulates that [Seller] shall forfeit its rights to payment of the remaining installments, if being in default on its duty to replace of deficient goods after the expiry of a period of fifteen days. Thus, the replacement of deficient goods was of substantial importance to the parties' agreement: compliance with this obligation was a condition for the right to receive payment. Concerning the refusal to take back the twelve mattresses, the Court has assumed that [Seller] defaulted on its obligations in the sense provided for under clause 5 para. 2 of the Settlement Agreement. Only due to the fact that the issue at hand concerned merely twelve mattresses and that [Seller] had actually delivered substitute goods, the Court found that [Seller] had not forfeited its rights to payment. [Seller]'s breach of contract, thus, is neither denied nor has it been approved or remedied. Only its sanction has been suspended. However, if [Seller] came in default for a breach of contract, that was irrelevant if considered separately, but nevertheless concerned a duty to which compliance has been important and indeed a condition for payment, [Buyer] could not possibly default on its duty to pay the installments (see also Schlechtriem / Hager, supra, Art. 58 note 13).
c) This holds true under the following considerations. According to the principle of good faith laid down in Art. 7 CISG, the sanction for [Seller]'s breach of contract, i.e., the forfeiture of [Seller]'s rights to payment of the two remaining installments, may only be suspended. However, the sanctioned breach of contract may not be interpreted in a way that [Buyer]'s reaction, which at the time had been adequate, would ex post appear as default in the sense provided under clause 5 No. 1 of the Settlement Agreement, with all its detrimental consequences. This would mean an undue advantage to [Seller], as [Seller] would not only suffer no disadvantage, but would positively receive a benefit from its non-compliance with the Settlement Agreement, to the [Buyer]'s detriment.
6. [Seller] neither submitted nor substantiated that it had taken back the twelve mattresses meanwhile, or that it had provided for their removal. Hence, [Seller] is in a state of permanent breach of contract. This entitles [Buyer] to hold back the payment of the remaining installments of DM 30,000.00, each, which would have been due on 30 June 2001 and on 31 December 2001. [Buyer]'s refusal to pay must not be considered as a default in the sense of clause 5(1) of the Settlement Agreement. [Seller] is not entitled to payment of DM 83,255.00. Hence, its claim has to be dismissed.
1. a) [Buyer] claims CHF 175,032.00 for expenses that accrued in the context of the replacement of the said mattresses.
[Buyer] submits that from July 1997 to January 2002 it had provided 936 replacements for its customers in total. In each case [Buyer] had given sufficiently specified and timely notice of the defect. Even when [Seller], in some cases, had provided substitute items, [Buyer] had been left with the costs for back carriage, storage, and disposal of the defective goods. Furthermore, [Buyer] had suffered non-material damages to its reputation. Finally, [Buyer] argues that its risk to be held further liable under warranty had to be taken into account. The provisions under clause 6 of the Settlement Agreement would not exclude its claim. These would only take effect after the proper execution of the contract. Until then, the parties had reserved their rights to raise further claims.
b) [Seller] disputes these submissions and claims that [Buyer] had not sufficiently substantiated its facts. [Seller] points out that in many of the mentioned cases of defective deliveries, [Buyer] had indeed failed to give notice of the claimed defect at all. [Seller] also submits the following: The rate of CHF 2.50 per kilometer, which had been used by [Buyer] as a basis for its calculations, would be far too high. [Buyer]'s claim would be excluded by clause 6 of the Settlement Agreement, which would not cease to be effective in singular cases of default on provisions of the Settlement Agreement, respectively, disputes thereon. Therefore, [Buyer] would not be entitled to raise claims which have not been mentioned in the provisions in clause 6 of the Settlement Agreement.
2. Clause 6 of the Settlement Agreement must be interpreted in the same manner as set out above (under IV 3.b) ).
[Buyer] does not submit anything in respect to its own intent or that of [Seller]. Objectively, the parties chose a common phrasing that did not entail any reservations. They declared that there should be no further claims by and against either of them if the Settlement Agreement has been executed. The respective mode of execution is set out under clause 2, clause 3, and clause 4 of the Settlement Agreement, whereas clause 5 stipulates the consequences of default on the contract.
The contractual provisions do not indicate or support [Buyer]'s interpretation of the contract, i.e., that all possible claims between the parties should be reserved until the Settlement Agreement has been fully executed. The Agreement itself defines which obligations shall remain between the parties and how and when they shall be fulfilled. Commonly, a set-off clause is meant to exclude further claims if both parties comply with their mutual contractually-defined duties to perform. Yet, as clause 5 provides for cases of defaulted performance and defines the parties' rights and obligations in such cases, it must be concluded that the Agreement was not meant to become entirely void in the event of any default. Adjacent to the provisions of clause 5, the Agreement provides for set-offs in clause 6. This indicates that the regulations in clause 6 shall have effect in cases of defaulted performance provided for under clause 5, as well. This holds true irrespective of the fact that under clause 3 [Seller] can still be held liable until the guarantee period expires. According to the clear wording of the Agreement, [Seller] shall only be liable to provide replacement, but not to damages of any kind.
3. a) Furthermore, [Buyer] has indeed failed to sufficiently substantiate its claim for damages. [Buyer] needed to submit all facts that indicated the occurrence of damages, and the extent of the suffered loss, as far as it could reasonably be expected (Frank / Sträuli / Messmer, Kommentar zur zürcherischen Zivilprozessordnung, 3d ed. 1997, � 113 ZPO note 3 et seq.). As a general principle, the parties have to submit the facts of a case. Civil proceedings are based solely on the parties' submissions of facts (Para. 54(1) of the Swiss Code of Civil Procedure (Zivilprozessordnung)). Such submissions must be comprehensive and sufficiently substantiated. A party may also submit facts in respect to allegations made by the other party (Para. 113 et seq. ZPO)). If the claimant does not provide compressive and substantiated facts for its claim, the defendant will not be capable to respond to these allegations (ZR 1967 No. 35). In particular, a party must not confine itself to mere general and vague allegations, assuming that a subsequent taking of evidence will support its claim. On the contrary, the taking of evidence presupposes and requires the comprehensive and specified submission of facts (ZR 1996, No. 62. p. 190 et seq., see also: ZR 2003 No. 15 p. 68 and Decision of the Federal Court of 7 October 2002, ibid. p. 72).
b) On 18 April 2002. the Court advised [Buyer], pursuant to Para. 55 ZPO, that it needed to substantiate every single position, i.e., every collection of defective mattresses, in detail. Yet, [Buyer] has failed to do so.
[Buyer] listed all warranty cases that had occurred in five different time frames. [Buyer] also provided the total number of incidents for each time frame together with the total mileage for each frame. Based on a rate of CHF 2.50 spent per kilometer [Buyer] calculated the amount of its total loss, and reduced this amount by � due to the fact that in addition to the defective goods that are the subject of this case, other goods have also been delivered as well. However, [Buyer] does not submit the specific details of each collection, e.g., the destination of each carriage. [Buyer]'s calculations, moreover, are not based on actual expenses, and thus must be considered inadequate to determine the amount of compensation that [Buyer] may be entitled to. As [Buyer] itself mentioned, it would have incurred the claimed expenses, only if it had commissioned a professional carrier to undertake the collections. [Buyer] did not submit any facts or calculations, respectively, as concerns the costs for storage and disposal as well as the other positions, and failed to indicate why doing so would be unreasonable or impossible.
The documents [Buyer] submitted as attachments to its pleadings cannot make up for its insufficient submission of facts. In these pleadings, [Buyer] only vaguely refers to attached documents. As a general rule, the documents that are attached to a brief may count as pieces of evidence. However, they can only be considered a submission of facts, if the party makes specific reference to a particular document, or parts of it, in its pleading in a way that shows the party's clear intention that the content of this document shall be seen as a submission of facts. A merely general resort to a document together with the note that the content of all attachments shall be considered as a submission of facts does not satisfy these requirements (ZR 1998 No. 87, see also Decision of the BG 108 II p. 338 et seq). The parties have been advised on this point during the proceedings.
4. According to the Court's interpretation of the set-off provision in clause 6 of the Settlement Agreement, [Buyer]'s claim for damages is not justified. Furthermore, it has not been substantiated. Therefore, it must be dismissed.
The decisions on costs is based on paras. 64(2) and 68(1) of the Swiss Code of Civil Procedure (Zivilprozessordnung; ZPO). Under these provisions, the defeated party bears the costs of the proceedings. The values of [Seller]'s claim and [Buyer]'s counterclaim, which do not stand in contradiction to each other, must be added (Para. 19(2) ZPO). [Seller]'s claim is valued at CHF 108,014.00 (DM 143,255.00 * 0.7540 [official exchange rate as of 26 October 2001, as the day the claim became pending]), [Buyer]'s counterclaim is valued at CHF 175,032.00. Both amount to a sum of CHF 283,046.00. Based on this total amount, [Seller] lost the dispute by a rate of 3/8; [Buyer] by 5/8.
(1) The [Seller]'s claim is dismissed.
(2) The [Buyer]'s counterclaim is also dismissed.
(4) [Seller] bears 3/8 and [Buyer] bears 5/8 of the sum of these amounts.
(5) [Buyer] has to compensate [Seller] to the amount of CHF 5,600.00.
* All translations should be verified by cross-checking against the original text. For the purposes of this translation the Plaintiff and Defendant of the counterclaim is referred to as [Seller], the Defendant and Plaintiff of the counterclaim is referred to as [Buyer]. Amounts in the uniform European currency (Euro) are indicated as [EUR]; amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM]; amounts in the currency of Switzerland (Swiss francs) are indicated as [CHF].

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Art 29
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Art. 8
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Art. 82
Art. 206
Art. 206
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Art. 59
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