Date: 08.03.1995
Country: Germany
Number: VIII ZR 159/94
Court: Bundesgerichtshof
Parties: Unknown
A Swiss seller and a German buyer concluded a contract for the sale of New Zealand mussels. The buyer refused to pay the purchase price after the mussels were declared 'not completely safe' because of the quantity of cadmium they contained, which quantity was significantly greater than the advised cadmium levels published by the German Federal Health Department. The buyer gave notice to the seller of the contamination and asked it to take back the mussels. Six or eight weeks after the delivery of the mussels, the buyer complained about defects of the packaging. The seller commenced an action claiming payment and interest. At first instance the Court decided in favor of the seller, and the buyer's subsequent appeals were unsuccessful.

The Supreme Court confirmed the decisions of the lower courts, stating that the contract between the parties was governed by CISG according to Art. 1(1)(a) CISG.

The Court held that the buyer had to pay the purchase price. It was not entitled to declare the contract avoided under Arts. 25 and 49(1)(a) CISG, since the seller did not commit a fundamental breach of the contract. The Court confirmed the findings of the lower courts, according to which the mussels were conforming to the contract since they were fit for the purposes for which goods of the same description would ordinarily be used (Art. 35(2)(a) CISG). The Court did find that the fact that the mussels contained a greater quantity of cadmium than the advised cadmium levels could well affect the merchantability of the goods, provided that the corresponding public law requirements were relevant. However, like the lower courts, the Supreme Court excluded that the seller can generally be expected to observe special public law requirements of the buyer's state; it could only be expected to do so: (1) where the same rules also exist in the seller's country; (2) where the buyer draws the seller's attention to their existence; (3) or, possibly, where the seller knows or should know of those rules due to "special circumstances", such as (i) when the seller has a branch in the buyer's country, (ii) when the parties are in a longstanding business relationship, (iii) when the seller regularly exports in the buyer's country, or (iv) when the seller advertises its own products in the buyer's country.

The Court equally confirmed that the buyer was not entitled to avoid the contract because of non-conformity of the packaging (Art. 35(2)(c) CISG). However, in the Court's opinion the decisive fact was that the buyer did not give notice of the alleged non-conformity of the packaging in time (notice was given approximately two months after delivery), rather than the fact it delayed in declaring the contract avoided.