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| Abstract | ||||||||||||||||||
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| A Dutch seller sold aerosol paints to a French buyer through its commercial agent in France. The goods were intended 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 not unbreakable, while the seller alleged that the contractual specification regarding order volume had not been respected. This led to the breaking off of parties’ commercial relationship in October 1994. In March 1995, the buyer, who had been removed from the final users' list of suppliers, sued the seller and its agent.
The First Instance Court ruled in favour of the buyer 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 stated that CISG was applicable according to its Art. 1(1)(a), even though the buyer had contracted with the seller through its commercial agent, a French company mandated by the seller on French territory. Indeed, since the buyer and the seller had direct contacts as from the very beginning of their commercial relationship (through meetings, letters, etc.), it could be correctly concluded that they were the parties to the contract. As to the merits, the Court of Appeal declared that, since the buyer sued the seller, lamenting non-conformity of goods delivered before February 1992, only in March 1995, its claim against the seller was precluded pursuant to Art. 39 CISG. Indeed, the Court held the time limit in Art. 39 CISG to be a strict preclusion period; therefore, the deliveries which took place more than two years before the commencement of the action could no longer be contested. Consequently, the Court of Appeal annulled and reversed the first instance judgment. |