An Italian seller and a German buyer concluded a contract for the sale of marble tiles to be produced in accordance with the buyer's specifications. The buyer refused to pay the price alleging that it had complained by telephone of the lack of conformity of the goods to an independent third party who had acted as a mediator in the contract formation between the parties. The seller never received the complaint and commenced legal action to recover the contract price.
The Court stated that the buyer could not rely on lack of conformity as it had not given notice to the seller within a reasonable time after discovery (Art. 39(1) CISG). In particular, the notice given to an independent mediator who had no further relationship with the seller could not be considered as having been given by means appropriate in the circumstances (Art. 27 CISG) and for this reason the buyer had to bear the risk of its failure to reach the seller. The seller was therefore awarded the contract price. |