Date: 13.01.1993
Country: Germany
Number: 1 U 69/92
Court: Oberlandesgericht Saarbr├╝cken
Parties: Unknown
A German buyer, who had established a business relationship with a French seller, ordered doors to be produced by the seller in order to resell them to its customers. The seller sent to the buyer a letter of confirmation containing (printed on the backpage) its standard terms according to which 'Notice of defects is valid only if made within 8 days after the date of delivery'. The buyer refused to pay alleging, inter alia, non conformity of the goods. The seller commenced an action requiring full payment of the price. It assumed that the buyer did not have the right to rely on a lack of conformity of the goods since it had not examined them and given notice of their non-conformity in compliance with Arts. 38(1) and 39(1) CISG. The buyer affirmed it was not obliged to examine the goods because, on the one hand, these were packaged in such a manner (the doors were wrapped up in plastic sheets) to render an immediate examination, if not impossible, at least extremely uneconomical; on the other hand, it was exempted from such an examination according to Art. 38(3) CISG since the goods had been stored in its warehouse in order to be resold to third parties; finally, the buyer asserted the existence of a particular usage in this type of trade according to which an immediate examination of the goods is not requested.

The Court held that the contract was governed by CISG not only because the requirements of Arts. 1(1)(b) and 3(1) CISG were satisfied, but also because the parties, at trial, had expressly agreed on CISG as the applicable law.

In the Court's opinion, a sales contract had been validly concluded between the parties. The Court noted that the buyer's taking delivery of the goods constituted conduct indicating assent to the offer and amounted therefore to an implied acceptance of the standard terms contained in the letter of confirmation sent by the seller (Art. 18(1) CISG).

The Court held that the buyer had to pay the purchase price, because, apart from the circumstance that it had not sufficiently specified the lack of conformity (Art. 39(1) CISG), it had not examined the goods within as short a period as is practicable in the circumstances (Art. 38(1) CISG) and had not given timely notice of the non conformity (Art. 39(1) CISG) as the seller received notice more than 2 and a half months after the last delivery. In the Court's opinion, the buyer could not either rely on Art. 44 CISG, since it had not provided evidence of having a reasonable excuse for its failure to give timely notice.

In the Court's opinion, an examination of the goods immediately after delivery was not impossible because of their packaging: since the defects were repetitive and easily recognisable, the buyer could have discovered them by simply examining samples of the goods.

Furthermore, the Court held that the buyer could not rely on Art. 38(3) CISG which, in case of redirection in transit or redispatch of the goods by the buyer, states that the examination may be deferred until after the goods have arrived at the new direction; in the Court's opinion, the rule set forth in this Article applies only when the buyer is a simple intermediary or when the goods are directly delivered to the end- customers and does not apply when, as in the case at hand, the buyer takes delivery of the goods at its own warehouse without knowing in advance to what extent and, above all, when the goods will be resold to its customers.

The Court finally stated that the buyer could not refer to a particular trade usage according to which an examination of the goods immediately after delivery is not requested. Apart from the circumstance that the buyer had not sufficiently proved its sphere of application, a usage could not have been taken into consideration in any case. As a matter of fact, the Court observed that the provisions contained in the Arts. 38 and 39 CISG can be derogated also through a usage but, in the case at hand, excluded such a possibility since a provision contained in the seller's standard terms stated that the buyer should have given notice of the non-conformity of the goods within eight days after delivery. The Court left open to what extent this provision modified the rules set forth in Arts. 38 and 39 CISG as its sole existence excluded the applicability of the usage invoked by the buyer.