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| Abstract | ||||||||||||||||||
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| A Dutch car dealer bought from a German seller an used car. Approximately two months later the car was seized by the police due to the suspicion that it could have been a vehicle previously stolen in Paris. Later on the buyer, formally requested by the insurance company - which had indemnified the owner – to return the car, refused alleging acquisition in good faith. A dispute brought before a Dutch court on this issue was still pending at the time of the present decision.
Meanwhile, two months after the seizure the buyer asked the seller in writing for restitution of the price already paid and later filed a suit in a German court to obtain termination of the contract and damages. The first instance court (LG Bielefeld 3.4.2003, 10 O 54/02) decided in favour of the buyer. The appellate court (OLG Hamm, 15.7.2004, 2 U 83/03) on the contrary, rejected the buyer’s claim. The buyer appealed to the Supreme Court. The Court first of all confirmed the application of CISG since the parties had their places of business in two different contracting States (Art. 1(1)(a) CISG). On the merits, the Court confirmed the appellate decision rejecting the buyer’s claim for avoidance (termination) of the contract and damages for non-conformity of the goods sold under Art. 41 CISG. The Court held that though the seller is obliged to deliver goods which are free from any right or claim of a third party (Art. 41 CISG), the buyer could not rely on this provision because it had not given notice to the seller within a reasonable time after it became aware or ought to have become aware of the third party’s right or claim (Art. 43(1) CISG). After observing that the reasonableness of the time depends on the circumstances of each case and inter alia the kind of right or claim involved, the Court considered that a notice given more than two months after the seizure of the car by the police was untimely, since the buyer did not need any expert counselling to understand that such a seizure implied the possibility of a third party asserting rights of ownership on the car sold and therefore it should have given earlier notice to the seller. Nor could the buyer rely on the later claims raised by the insurance company with respect to the car since there was no evidence of a sufficient notice concerning such an issue mentioning the third party involved and given within a reasonable time after the request for restitution of the car by the insurance company. Finally, there was no evidence of a reasonable excuse on the part of the buyer under Art. 44 CISG. |