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| Abstract | ||||||||||||||||||
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| A German seller and an Egyptian buyer concluded a contract for the sale of nine items related to a printing machinery. The goods were to be delivered in two consignments of six and three items respectively. The buyer paid part of the total price for the first six items .The seller only delivered three of the first consignment of six items, to a value lower than the part of price already paid by the buyer. After expiration of the terms for delivery of both the first and the second consignments, the buyer fixed an additional period of eleven days for delivery of all the missing items. After the additional term fixed by the buyer expired, the seller offered to deliver different goods. The buyer refused to accept any other delivery, declared the contract avoided and commenced action against the seller claiming damages for delay and for partial non- performance, and the restitution of the price paid in excess in respect of the items actually delivered.
The Court found that the buyer was entitled to avoid the contract for non-performance under Art.49(1) CISG, as the seller failed to deliver all the goods within the additional period fixed by the buyer, according to Art. 47(1) CISG. The Court further held that the fact that part of the goods had already been delivered did not affect the buyer's right to declare the contract avoided for the missing items (Art. 51(1) CISG). The Court further held that the additional eleven-day period of time fixed by the buyer for performance was not unreasonable. The Court entitled the buyer to recover the amount paid in excess in respect of the goods actually delivered, according to Art. 81(2) CISG, plus interest according to Art. 84(1) CISG. The Court did not pronounce itself on the buyer's claim for damages. The Court awarded the buyer an interest rate of 4%, corresponding to the German statutory rate, German Law being the law applicable to the contract according to the rules of German private international law. |