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| Abstract | ||||||||||||||||||
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| A Belgian buyer, which was in a longstanding business relationship with a Dutch seller, concluded a contract for the sale of bread buns. A dispute arose between the parties concerning the late and partial deliveries. According to the buyer, not only were the deliveries not in time, they were furthermore not completely executed. The seller filed a motion claiming the full payment of the invoices. The buyer did not contest that the seller was entitled to payment of the claimed invoices. However, the buyer claimed the seller’s claim should be offset by the damage caused by the late and partial deliveries.
As to the applicable law, the Court held that CISG had to be applied to the dispute, since the two parties had their places of business in two different Contracting States at the time of the conclusion of the contract (Art.1(1)(a) CISG). As to the merits, the Court held that according to Art. 33 CISG the seller must deliver the goods on the date or within the period fixed in the contract. It specified that this can not be the date requested by the buyer on an order form without being accepted by the seller. Since in the dispute at hand it was the buyer which specified the period in which it wanted the goods to be delivered without the seller’s consent, the latter could not be liable for any late delivery. As to the non – conformity of the deliveries, the Court held that the buyer had lost its right to rely on lack of conformity of the goods because it had not given notice within a reasonable time after its discovery (more then 4 months after the first delivery) and had failed to specify the nature of the defects in compliance with Art. 39(1) CISG. Thus the Court concluded that the buyer was not entitled to any compensation for damages. The Court awarded the seller interests (Art. 78 CISG) on the sums of the invoices due. Since CISG does not provide an interest rate, the legal interest rate of the seller’s country was applied. Furthermore the seller was granted damages (Art. 74 CISG) which were assessed ex aequo et bono. |