A German buyer, who from 1982 had had a business relationship with an Italian seller, ordered tiles from the seller. The seller agreed in writing and referred to its general conditions, which provided 'Notice of defects are valid only if made within 30 days after the date of the invoice'. The buyer paid only a part of the price, alleging non-conformity of the tiles sent. The seller commenced action to recover the purchase price. The buyer counterclaimed for damages.
The court held that the contract was governed by CISG, as the German private international law led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG).
The court held that the time-limit for notice of defects as fixed in the general conditions of the seller had become part of the contract since a term contained in the acceptance indicating that notice of defects must be given within 30 days after the date of invoice could not be considered a material modification of the terms of the offer in accordance with Art. 19(2) CISG. Therefore, as the buyer did not give notice of the non-conformity within 30 days after the date of the invoice, the court held that the buyer had to pay the entire price and rejected the buyer's counterclaim. |