|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A Belgian seller entered into a contract with a German buyer for the sale of pork-meat. It was agreed that the meat should be delivered directly to the buyer’s customer and from there redispatched to the final destination, a company in Bosnia-Herzegovina. The meat was delivered in three instalments, whereby each delivery was accompanied by a certificate of suitability to consumption. After the buyer paid a part of the contract price, the seller assigned the claim to the plaintiff.
Shortly thereafter, a suspicion arose in both Germany and Belgium that the meat produced in Belgium be contaminated by dioxin. This prompted first Germany, then the EU and afterwards also Belgium to enact a regulation on the subject, requiring inter alia for pork-meat a certificate stating the absence of dioxin. The sold meat was confiscated by the Bosnian custom. As the seller failed to deliver the requested certificate, the buyer refused to pay the outstanding price amount. The plaintiff brought legal action against the buyer, asking for payment of the remainder of the price. The first and second instance courts rejected the claim and the plaintiff brought recourse to the Supreme Court. The Court confirmed that CISG was applicable to the dispute under its Art. 1(1)(a) as the two parties were situated in contracting States. In addition it held that CISG is to be applied taking into account its international character and thus it is to be interpreted autonomously, without recourse to the non-uniform national laws and judicial decisions relating to them (Art. 7(1) CISG). The court further held that two of the three deliveries of meat were non-conforming according to Art. 35 (2) (a) CISG, as the suspicion of contamination by dioxin frustrated the re-sale of the meat, which is to be considered the ‘ordinary use’ in intermediary trade. In this respect there was no need to ascertain whether the goods actually contained dioxin, as the mere suspicion of such a contamination which had prompted public authority measures was sufficient to render the meat unsaleable and therefore non-conforming. This applies even though the EU regulation was passed after delivery to the buyer, since the non-conformity, though not yet discovered, already existed at the time the risk passed to the buyer (Arts. 36 (1) and 67 CISG). As to the non-conformity to public authority regulations on consumption of goods, the court observed that as a rule, the seller would not be under an obligation to know of such requirements in the buyer’s country, unless they were the same in the seller’s country or the seller had under the circumstances knowledge of such requirements. In reaching this conclusion the court referred inter alia to previous CISG decisions of a foreign Supreme Court (Austrian Supreme Court). The buyer was entitled to reduce the price of the goods for lack of conformity of the goods under Art. 50 CISG. |