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| A Dutch seller sold aerosol paints to a French buyer through its commercial agent in France. The goods were to be furnished to final users. By letter dated 26th November 1991, the parties agreed on the non breakability of the sealing caps. Starting from February 1994, difficulties arose between the parties as the buyer stopped paying the invoices, complaining that the caps were non unbreakable, while the seller put forward that the agreed order volume have not been respected. This led to the breaking off of parties’ commercial relationship in October 1994. Then, in March 1995, the buyer, which had been removed from the final user's list of suppliers, sued the seller and its agent.
The First Instance Court upheld the buyer’s claim and declared set-off between the amount of damages to be paid by the seller and the amount due to the seller for unpaid invoices. The seller appealed. The Court of Appeal (see Cour d’Appel d’Amiens, 27.09.2007, in UNILEX) partially reversed the lower court’s decision and ruled in favour of the seller, stating that the buyer’s claim was time-barred according to Art. 39 CISG. The buyer appealed contending that the two-year period prescribed by Art. 39 CISG was a time limit for giving notice of lack of conformity, not a time limit within which an action against the other party must be brought. Therefore, the Court of Appeal had wrongly declared that the deliveries of February 1992 could no longer be contested, since a first reclamation had been made by letter in January 1994. Furthermore, the buyer affirmed that, by virtue of Art. 40 CISG, the seller is not entitled to rely on Art. 39 CISG if the non-conformity relates to facts which he knew, or could not have been unaware of, and which he did not disclose to the buyer. In the case at hand, the seller could not have been unaware that the delivered caps did not meet the contractual specification. The Supreme Court reversed the Court of Appeal's decision, though only insofar as it had declared the buyer’s claim precluded in application of Art. 39 CISG. |