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| An Italian seller and a German buyer concluded a contract for the sale of marble plates. After delivery the buyer discovered a lack of conformity of the goods. Nevertheless, it started to use and transform the goods shortly after.
The Court held that the contract was governed by CISG as the German rules of private international law led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). Even if in this case the actual lack of conformity of the goods was not in dispute it was not necessary to decide wether the buyer had complied or not with the requirements of Art. 38 and Art. 39 CISG, since according to Art. 82(1) the buyer was not entitled to declare the contract avoided under Art. 49 CISG: as a matter of fact the buyer had started to work on and with the marble plates after discovery of lack of conformity thus making it impossibile to make restitution of the goods in the condition in which they were received as provided by Art. 82 CISG. The Court held that the exceptions to the rule of Art. 82(1) CISG provided for in Art. 82 (2)(a) and (c) CISG were not applicable because the impossibility of restitution of the goods in the condition in which they were received was due to the buyer's act and furthermore arose after the discovery of lack of conformity. |