|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| In February 1998, a French buyer and a Dutch seller entered into a contract for the sale of twenty-five tons of potatoes for growing purposes. Part of the tubers grown in the first harvesting were used for a second growing process. The potatoes matured during the second growing process were then resold to other farmers. In 2000, it appeared that the goods were infected with a bacterial disease. The buyer sued the seller for damages.
The Court of First Instance ordered an expert examination on the potatoes which revealed that they had been contaminated by the initial batch of potatoes purchased from the Dutch seller. The Court ruled in favour of the buyer. The seller appealed, and the Court of Appeal reversed the Court of First Instance’s judgment. In the opinion of the Court, the buyer had lost its right to rely on lack of conformity, as the notice of non-conformity was not given within the two-year time limit prescribed by Art. 39(2) CISG. The French buyer had recourse to the Supreme Court, alleging that the Court of Appeal should have taken into account that, since the plot of land where the potatoes had grown was infected, the seller was aware of the potatoes' risk of contamination, but failed to reveal it to the buyer. In its judgment, the Supreme Court pointed out that, since specific tests on the batches of potatoes had been performed, and a certificate stating that the potatoes were suitable for growing had been isuued, the seller could not have concealed a defect of which he was not aware. Moreover, the Supreme Court found that the seller's failure to inform the buyer of the land's infection could not be considered as a non-disclosure of a defect within the meaning of Art. 40 CISG. Therefore, the Supreme Court upheld the Court of Appeal's decision. |