|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A San Marino seller and a German buyer concluded a contract for the sale of clothes. A part of the ordered goods were delivered. The buyer alleged that the clothes were not saleable because of the missing parts. Shortly afterwards, the parties entered into an agreement in which the buyer would pay a reduced price for the goods actually delivered and the remaining goods would not be delivered. However, the buyer did not pay the agreed price alleging that the goods were defective. The seller commenced an action to recover the purchase price.
The Court decided that the agreement between buyer and seller barred the buyer from avoiding the contract because of non- complete delivery. As to the alleged non-conformity of the delivered goods, the Court held that the buyer had not proved that it had given notice of lack of conformity within a reasonable time after discovery (Art. 39 CISG). The Court stated that in case of notice of lack of conformity by telephone, the buyer must indicate the precise date of the call, the person who received it, and the contents of the conversation. The Court finally held that interest was payable according to Art. 78 CISG. Absent an express provision in CISG, the Court held that the interest rate was to be determined in accordance with the law otherwise applicable to the contract (German law) and not with the law of the creditor's country (San Marino). The Court therefore applied the German statutory interest rate. |