An Italian seller and a Spanish buyer entered into an agreement for the sale of several kinds of quartz. The buyer refused to pay two invoices alleging that the delivered goods did not conform to the contract specifications. The seller brought an action against the buyer to obtain payment, but the Court of First Instance dismissed the seller’s claim.
On appeal, the seller argued that the Court of First Instance had, incorrectly, failed to apply CISG, having referred only to the national case law concerning the aliud pro alio doctrine, while buyer had lost its right to rely on the lack of conformity of the goods since it had failed to give notice thereof to the seller within the maximum period (two years from the date on which the goods were handed over) as Art. 39(2) CISG provides.
The Appellate Court approved the lower court’s dismissal of the claim. In any case, it found that the buyer had not lost the right provided for by Art. 39 CISG because it had started negotiations with the seller to find a mutually agreeable solution to the matter (thereby expressing its claim) before the expiration of the two year-time period.
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