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| Abstract | ||||||||||||||||||
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| A German buyer bought inter alia six platforms from an Italian company in order to install them on lorries. Since five of the platforms did not conform to the contract, they were taken back by the seller to be repaired. Once repaired, they were handed over to the buyer who failed to pay the purchase price. The seller commenced an action claiming payment and interest. The buyer alleged that repair had been unsuccessful.
The Court held that the contract was governed by CISG as at the time of its conclusion the parties had their places of business in two contracting states (Art. 1(1)(a) CISG). The Court stated that the buyer had to pay the purchase price according to Art. 53 CISG. It left open the question whether repair did remedy the lack of conformity of the platforms or not, as the buyer would have lost its right to rely on it since after having received the repaired goods the buyer had not given a new notice to the seller that the repaired goods were still non-conforming (Art. 39 CISG). In the opinion of the Court a failed repair represents another non- performance of the contract, so that the exercise of remedies of the buyer for breach of contract by the seller requires another notice. The Court stated, however, that the buyer was not deprived of its right to claim damages according to Art. 45(1)(b) CISG. The Court awarded interest (Art. 78 CISG) to the seller. Since CISG does not determine the rate of interest, it had to be determined in accordance with German international private law, which led to the application of the statutory interest rate of the seller's country (Italy). |