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Abstract

Date: 31.08.1989 Country: Germany Number: 3 KfH 0 97/89 Court: Landgericht Stuttgart Parties: Unknown

A German buyer ordered 48 pairs of shoes from an Italian seller, of the same model and colour as under a former order. One week after placing the second order the buyer cancelled it on the basis of customer complaints concerning the former order. The seller delivered the shoes in accordance with the second order. On delivery the buyer examined only a few pairs of shoes without finding any defect. Sixteen days after delivery, following receipt of customer complaints concerning the second order, the buyer notified the seller of imperfect sewing and measurement and decoloration of the shoes. The seller commenced action claiming payment of the full purchase price and interest at bank loan rates. The court held that the contract was governed by CISG, as the German private international law rules led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). The court left open whether Arts. 38 and 39 CISG applied or whether pursuant to Art. 7(2) CISG German domestic law applied, as in both cases the buyer was found neither to have properly examined the goods nor given timely notice of the non- conformity. With respect to the examination of the goods the court found that the buyer should have examined all the pairs of shoes from the second order and not only a few of them, having been forewarned by customer complaints concerning the first delivery. As to the notice of the defects discovered the court held that, although notice by telephone is per se admissible, in the case at hand it was not sufficient since the buyer could indicate neither the precise date of the call nor the person who received it. The court held that interest was payable. Since CISG does not determine the rate of interest, the court held that the rate was to be determined in accordance with the domestic law of the seller's country, as the country in which the seller is affected by the delayed payment, all the more so as payment was to be made in the currency of the seller's country.