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| Abstract | ||||||||||||||||||
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| A producer of hydraulic presses and welding machines (the buyer) concluded a contract for the purchase of two engines to be used in the manufacture of its products with a German seller who was the distributor in Turkey of engines manufactured by a German producer. The first engine was delivered in January 1992, while the other one was delivered in May 1993. According to the contract the engines should have had a 'high slip 8-13 %'. After the second delivery the buyer, upon discovering that the engines did not possess the contractually agreed technical qualities, commissioned an expertise by a University. Thereupon the buyer started legal action against the German seller and the German producer, claiming for refund of price paid and damages suffered due to the non conformity of the engines.
The Court held that under the sales contract the buyer was entitled to claim only against the German seller, not against the German producer of the engines, since the contractual relationship was between the buyer and the seller only, while the German producer was not a party to the sales contract. The Court rejected the buyer's claims. After ascertaining the actual lack of conformity of the goods, the Court held that the buyer had lost its right to rely on a lack of conformity, since the requirements of Arts. 38 and 39 CISG had not been complied with. The Court noted that Art. 38(1) CISG is usually interpreted in scholarly writing as imposing on the buyer the duty to examine the goods within a few working days; in the case at hand, however, the buyer, in order to discover possible defects, necessarily had first to install the engines and put them into operation, which required a certain time. In this case, however, the buyer had actually examined both engines a full four months after the second delivery; this could not be considered 'as short as is practicable in the circumstances' as required by art. 38 CISG. Moreover, the buyer had not given notice of non-conformity to the seller within a reasonable time after discovering the defects as required by Art. 39(1) CISG; the reasonable period of time within which the buyer should have given notice started to run at the latest at the moment when the buyer had concluded its own examination. Instead of giving notice thereof to the seller, the buyer had sent the engines to the University for further examination. |