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| A German buyer ordered in writing computer software from a French seller in conformity with a sample provided by the seller. Two months later the software was installed on the buyer's premises and the seller issued an invoice for the purchase price. Three months later, the buyer refused to conclude the contract and sent the program back to the seller. As the buyer failed to pay the invoice, the seller commenced an action claiming payment of the price. The buyer denied that a sales contract had ever been concluded between the parties and alleged that, in any case, the delivered software presented such defects as to justify avoidance of the contract.
The Court held CISG applicable since the final sale of standard software against payment of a sole compensation must be regarded as a 'contract for the sale of goods' in the sense of Art. 1(1) CISG. In the Court's opinion a contract had been concluded between the parties as they had both signed the purchase order and had come to an agreement on the minimum contract requirements (identification of the goods and price determination; Arts. 14, 18 and 23 CISG). The buyer was not entitled to avoid the contract because of non-conformity of the goods to the contract, as the software conformed to the sample received by the buyer (Art. 35(2)(c) CISG). Furthermore, the buyer had in any case lost its right to rely on a lack of conformity as it had not given notice of the non-conformity to the seller within a reasonable period of time (Art. 39 CISG). |