Date: 17.06.1996
Country: Germany
Number: 417 O 165/95
Court: Landgericht Hamburg
Parties: Roberto Catinari & Uvaldo Raccosta v. Florencemoda GmbH
A German buyer and an Italian seller concluded a number of contracts for the sale of shoes. The buyer refused to pay part of the price for the first delivery. The following deliveries, which were all late, remained unpaid. The seller commenced an action to recover the contract price with interest. The buyer alleged non-conformity of the first delivery. It argued that with regard to the said non-conformity and in consideration of the delay of all the other deliveries it had reached an agreement with the seller to reduce the purchase price by 50 per cent. It further stated that, as deliveries were incomplete, it was entitled to claim damages for lost profits.

The Court found no evidence of an agreement on a price reduction by the parties. Furthermore, the question of the lack of conformity of the goods remained undecided as, in the Court's opinion, the buyer had in any case lost its right to rely on the lack of conformity, since it had failed to prove that it had given notice thereof to the seller within a reasonable period of time (Art. 39 CISG).

Regarding the claim for damages for lost profits, the Court held that the buyer had failed to provide sufficient evidence thereof; in order to recover the lost profits, the buyer should have proved how many customers would have purchased the shoes the seller failed to supply, and, not finding them available, have not bought any other type of shoes from the buyer.

The seller was therefore awarded the full purchase price and interest according to Art. 78 CISG.