|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A German seller and an Austrian buyer entered into a contract for the purchase of Polypropylen-Plastic granulate to be manufactured in accordance with the chemical compositions specified under the contract. According to the contract, the seller had the duty to examine the goods and to deliver them to a Danish company with which the buyer entertained a permanent supply agreement. The seller delivered the goods without examining them before. About one month after delivery, the Danish company notified the buyer that the goods did not conform with the specifications set forth under the contract and asked for damages. The buyer gave the seller notice of the non conformity of the goods and of the claim for damages of the Danish customer only about two months later.
The Court held that the contract was governed by CISG according to Art. 1(1)(a) CISG. The Court also held that CISG applied because the choice of German law as the law governing the contract did not impliedly exclude CISG pursuant to Art. 6 CISG. The Court considered that the contract was a contract of sale because the buyer did not undertake to supply any materials necessary for the manufacture (Art. 3(1) CISG). In the Court's opinion, the buyer had lost its right to rely on a lack of conformity because it had not given notice of non conformity within a reasonable time after discovery (Art. 39(1) CISG). First, the Court doubted whether the time of notice given by the Danish company was reasonable. It held that as the seller could and should have examined the goods before delivery, it would be reasonable to believe that the Danish company could and should have examined the goods soon after receiving them (Art. 38(1) CISG). Therefore, the Danish company could have discovered the non conformity of the goods sooner than one month upon delivery. Specifically, the Court held that under normal circumstances in a sale of durable non season-dependent goods (as in the present case) eight days is a reasonable time of notice. As a matter of fact the buyer who causes the goods to be examined must also carry the burden of a delay in the examination (Art. 38(1) CISG). In any case, the buyer had notified the seller two months after receipt of the otice from the Danish company. In the Court's opinion, this period of time was undoubtedly unreasonable. Finally, the Court addressed the issue of whether the buyer had a reasonable excuse for its failure to give a timely notice (Art. 44 CISG). In answering this question, it considered the fast-paced nature of the buyer's business which required quick decisions and prompt actions. For this reason the Court determined that the buyer did not have a reasonable excuse. It noted that in taking into account the relevant circumstances and equitable considerations, it would be easier to allow such an excuse to a single trader, an artisan, or to a free professional. |