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| Abstract | ||||||||||||||||||
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| A Greek seller and a Dutch buyer concluded an oral contract for the sale of watermelons. Under the contract, the carriage of the goods was to take place for the account and at the risk of the buyer. After delivery of the goods, the buyer left some of the invoices unpaid. As a result, the seller sued the buyer for payment of the price, but the latter denied its liability, arguing that the watermelons were of inferior quality.
The Court held that the contract was governed by CISG as the parties had their places of business in Contracting States (Art. 1(1)(a) CISG) and the contract involved movable goods. In so doing, the Court also found it irrelevant that the parties had entered into an oral agreement, as a contract does not need to be concluded in, or evidenced by, writing in order to be governed by CISG (Art. 11 CISG). As to the merits, the Court ruled that, since the contract at hand did not involve the carriage of the goods, the seller was only liable for the defects in the watermelons that already existed at the time of shipment, such a time being the moment on which the risk passed to the buyer (Art. 35(1) CISG and Art. 36(1) CISG). This meant that, pursuant to Art. 38 CISG, the buyer was obliged to examine the watermelons before transportation to the Netherlands and that the period within with the seller should have been given notice of lack of conformity had started to run from the time when the inspection could have been carried out and the lack of conformity discovered, that is before carriage of the goods. The Court also rejected the buyer's argument that a large batch of watermelons had been delivered at different times in different places, or delivered elsewhere, and that in some cases an inspection had taken place at the final destination as, according to Art. 38(2) CISG, inspection can be postponed until after delivery at the place of destination only in those cases in which the contract involves carriage of the goods. Moreover, the Court found that the perishable nature of the goods and other relevant circumstances of the case required a short period in order for the lack of conformity to be notified (Art. 39 CISG). Although the buyer argued that it had orally complained to the seller about the defects as soon as they had appeared, it failed to provide adequate proof thereof. As a result, as the buyer did not invoke any other provisions that might have prevented the seller's reliance on Art. 39 CISG or would have given the buyer the possibility to reduce the price or claim damages pursuant to Art. 44 CISG, the Court concluded that - even if non-conformity had occurred - the buyer had lost the right to avail itself of the related remedies. Accordingly, the buyer was sentenced to pay the amounts in arrears, as well as legal interest on those sums (Art. 78 CISG) at the rate calculated on the basis of the otherwise applicable law (i.e., Greek law). Finally, the seller's claim for reimbursement of the extrajudicial collection costs was recognized pursuant to Art. 74 CISG. |