In May 1991 a Danish flower dealer sold, inter alia, daisies to a German flower shop. The buyer paid for the first two deliveries and sold the plants on to several customers. At the end of July, however, the buyer refused to pay for a third delivery, alleging it had to refund customers following complaints that the daisies did not flower throughout summer as expected. The seller sued for payment; the lower Court decided in favor of the seller and the buyer appealed.
The appellate Court held that the buyer had to pay the price and was not entitled either to damages or to avoidance of contract for non conformity of the goods, since it had failed to prove the existence of a defect according to Arts. 35 and 36 CISG. The buyer did not produced sufficient evidence that the early withering of the daisies was caused by improper cultivation on the part of the seller and that the defect therefore already existed upon passing of risk on to the buyer (Art. 36(1) CISG). Nor did the buyer prove the existence of an express guarantee in the contract as to the length of time the plants would bloom (Art. 36(2) CISG).
Under the circumstances, there was no need to address the further question of whether notice of non conformity had been timely and sufficiently precise. |