A Romanian seller and an Austrian buyer concluded a contract for the sale of grinding material. The buyer refused to pay the price alleging that the goods were contaminated and informing the seller thereof. The lower Courts decided in favor of the buyer.
The Supreme Court did not accept the seller’s recourse against the lower Courts’ decisions, holding that since both parties had their places of business in two different contracting States, CISG and not non-uniform German law applied.
According to the facts established by the lower Courts, the buyer had brought evidence of giving notice to the seller of the lack of conformity within a reasonable time after it discovered or ought to have discovered it (Art. 39(1) CISG). The buyer had in fact only to prove that it sent the notice of non-conformity within the said time: the risk of delay or failure of transmission, according to Art. 27 CISG, lies on the recipient of the notice, therefore the seller.
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