An Italian seller and a German buyer concluded a contract for the sale of shoes. The buyer ordered 3.240 pairs of shoes, but the seller delivered 540 pairs less. After taking delivery, the buyer complained over the telephone lack of conformity of the goods and refused to pay the price. The seller commenced an action to recover the contract price. The buyer counterclaimed loss of profit that it would have gained had the seller delivered also the remaining 540 pairs of shoes.
The appellate Court confirmed the decision of the lower Court, stating that the buyer was obliged to pay the price according to Art. 53 CISG. As in the first instance, the Court held that the buyer could not rely on lack of conformity because it had not proved either to have given notice within a reasonable time, or to have specified the nature of the defects, as required in Art. 38(1) and Art. 39(1) CISG.
With respect to the buyer's counterclaim, the Court held that the buyer was not entitled to recover damages under Art. 74 CISG. In the Court's reasoning, the buyer's original order for 3.240 pairs of shoes constituted an offer pursuant to Art. 14 CISG and the delivery by the seller amounted to an acceptance by performance (Art. 18(3) CISG). However, since the delivery of a different quantity of goods materially alters the terms of the offer (Art. 19(3) CISG), the seller's delivery of 540 pair less was to be considered a rejection of the offer and a counter-offer (Art. 19(1) CISG). The contract was then concluded only with regard to the lesser quantity delivered by the seller. |