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| Abstract | ||||||||||||||||||
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| A Danish citizen, owner of a sailing yacht cruising in the Caribbean Sea, ordered a generator as well as a set of spare parts from a German seller. The generator was meant to provide the electric current for a cooling system on the buyer's boat. In the correspondence preceding the conclusion of the contract, the seller assured the buyer that the generator was appropriate for the said purpose. Following payment of the purchase price the seller sent the generator to the buyer's Caribbean address, but failed to supply the spare parts. The buyer had the generator installed on board its vessel, but the cooling system did not work. After several weeks of vain attempts to get the system going, the buyer returned the generator to the seller, alleging that it was unfit to power the cooling system. The buyer commenced an action against the seller to recover the purchase price, further claiming freight and installation costs. The seller insisted on the conformity of the generator. In addition, it asserted that the buyer's claims were time-barred.
Disregarding the fact that the purchase of the generator by the buyer was clearly intended for personal use and therefore should not fall within the scope of application of CISG (Art. 2(a) CISG), the Court held that the contract was governed by CISG. CISG was applied, moreover, on the ground of Art. 1(1)(a), even though the seller's standard terms provided for the sole application of German law and expressly excluded the applicability of the Uniform Law on the International Sale of Goods of 1964 (ULIS). Referring to Art. 6 CISG the Court noted that the choice of the law of a contracting State as governing law of the contract could not in itself amount to an implied exclusion of CISG, because CISG is part of the domestic law of that State. Moreover, in the opinion of the Court, the express exclusion of the Uniform Law on the International Sale of Goods of 1964 (ULIS) without any reference to CISG neither amounted to an implied exclusion of CISG. Concerning the purchase price of the generator, the Court found that the seller was not obliged to refund the money according to Art. 81(2) CISG, since the buyer had not avoided the contract in accordance with Arts. 45(1)(a) and 49 CISG before the relevant prescription term had expired. As CISG does not contain any provision dealing with prescription, the Court stated that this question must be solved in compliance with the domestic law applicable by virtue of private international law rules. The prescription term for the buyer's right to declare the contract avoided was thus determined by German law, which specifically stipulates that the buyer must exercise its remedies pursuant to Art. 45 CISG within 6 months after giving notice to the seller as required under Art. 39 CISG. In the case at hand, the buyer filed its claim more than eleven months after giving notice, thereby exceeding the 6-month period. The buyer's right to avoid the contract was therefore time-barred, as was the buyer's claim for freight and installation costs (Arts. 45(1)(b) and 74 CISG). With respect to the set of spare parts that had never been delivered, the Court noted that the buyer was not entitled to partial avoidance of the contract for non-delivery of a part of the goods (Arts. 51 and 49(1) CISG) because it failed to fix an additional period of time for performance by the seller (Arts. 49(1)(b) and 47 CISG). |