A French seller and an Italian buyer concluded a contract for the sale of sporting clothes. A dispute arose between the parties when the Italian buyer refused to pay the balance of the price alleging that the clothes had turned out to be of bigger sizes than the ones agreed upon (French sizes rather than Italian sizes) and that it was therefore almost impossible to resell them. The seller objected that the notice of lack of conformity was not timely given.
The Court, also citing foreign case law on Art. 39 CISG, stated that the reasonableness of the time of notice of non conformity referred to in Art. 39 CISG is strictly connected with the duty to examine the goods within as short a period as is practicable in the circumstances set forth in Art. 38 CISG. Consequently, when the defects are easy to discover by a prompt examination of the goods, the time of notice must accordingly be reduced.
On this ground, the Court found that a notice given 23 days after delivery was not timely and that the buyer had therefore lost the right to rely on the lack of conformity. |