A French company, acting as sole distributor on behalf of a U.S. company, sold a freezer to another French company, which in its turn sold it installed on a thermostatic truck trailer to a French transport company. The transport company carried a load of nuts and fish which thawed during carriage. The consignee refused to take delivery. The transport company commenced a legal action against the U.S. company, claiming damage. At first instance the Court decided in favor of the transport company, without applying CISG.
The Court of Appeal stated that, as the U.S. company had granted directly to the transport company a document of guarantee containing the transport company's name, the parties were bound by a contractual relationship, that the Court considered to be a sales contract. This contract was governed by CISG, as the parties had their places of business in contracting States (France and USA).
The Court held that, according to Art. 36 CISG, the seller was liable for any lack of conformity of the goods which existed at the time when the risk passed to the buyer, even though the lack of conformity became apparent only subsequently, unless it gave evidence of the real cause of it. In the case at hand, the lack of conformity became apparent shortly (about fifteen days) after delivery of the freezer, and the real cause remained unknown. The U.S. company was therefore held liable under Arts. 35(2)(a) and 36 CISG for the damage suffered by the transport company. |