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| An Italian seller and a German buyer concluded a contract for the sale of wine. The buyer did not pay part of the purchase price, alleging that the wine received was unmarketable in Germany as it had been blended with water. The addition of water had led to the issue of an order by the German public authorities, grounded on EC law, forbidding the sale of the wine and imposing its destruction. The seller commenced action in order to recover the remaining part of the purchase price. The buyer contested the claim alleging lack of conformity.
The Court held that the contract was governed by CISG, as the parties had their place of business in two contracting States (Art. 1(1)(a) CISG). The Court found that the wine received by the buyer was not in conformity with the contract as it had been blended with water and therefore was unmarketable according to EC law. The buyer had not lost its right to rely on the lack of conformity. The Court stated that in case of sale of wine, unless there are some particular reasons to do so, the buyer is not bound to have the wine examined with respect to possible water additions, since this kind of examination is not included among the ones generally undertaken in the wine branch. This all the more so in consideration of the fact that samples of the wine had been taken for examination one day after delivery. In any case, the seller could not rely on Arts. 38 and 39 CISG, pursuant to Art. 40 CISG, since the addition of water constituted a defect that the seller could not be unaware of, being necessarily the result of an intentional behaviour. The Court therefore rejected the seller's action, and granted the buyer damages plus interest (Art. 78 CISG). |