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| An Italian seller and a German buyer concluded a contract for the sale of textiles. The buyer claimed a lack of conformity in part of the goods 25 days after delivery and failed to pay the balance of the price. The seller commenced action to recover the full contract price.
The Court held that the contract was governed by CISG as the German private international law rules led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). The Court held that the contract could not be avoided under Art. 49(1)(a) CISG, because there was no evidence of a fundamental breach by the seller as to conformity of the goods. In any case, the buyer had not timely given notice of the lack of conformity of the goods according to Art. 39 CISG. In the Court's opinion, the reasonableness of the time of notice depends on the circumstances of each case and it is to be valued strictly. In consideration of the fact that the purported defects were apparent, as the buyer itself had admitted, the Court held that 25 days after delivery was not a reasonable time of notice. The Court then examined whether the seller had actually waived its right to assert the defense that notice of non conformity was not timely given. The Court held that under CISG the same rule applies as in German domestic law, according to which the mere fact that the seller had been willing to carry on an examination of the goods upon receiving the buyer's claim of non conformity did not result in a loss of the right to plead that notice of non conformity was not timely. This rule derives from the fact that the availability of the seller to an amicable settlement when notice is not timely given, is to be appreciated. As a consequence, the seller could not be considered to have waived its rights under Art. 39 CISG. The seller was thus awarded the balance of the price plus interest. |