|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| An Austrian seller and a German buyer concluded a contract for the sale of a high quality set of furniture which the buyer then resold to one of its customers. Upon complaints by the customer regarding the quality of the goods sold, the seller accepted to repair them. However, even after repairing, the defects initially indicated by the customer still persisted and the buyer declared the contract avoided.
The Court confirmed the first instance decision and found the buyer entitled to declare the contract avoided according to Art. 49(1)(a) CISG since the lack of conformity constituted a fundamental breach of contract. In the Court's opinion, the high cost of the goods sold would have required a high quality manufacture which, in the case at hand, was not supplied by the seller. The Court held that the buyer had complied with Art. 49(2)(b) CISG as it had declared the avoidance approximately five weeks after delivery of the repaired goods. The delay was deemed reasonable also in consideration of the time spent by the seller in unsuccessfully attempting to repair the goods. The buyer was not obliged to account to seller for benefits derived from the goods pursuant to Art. 84(2)(a) CISG as the seller has not given sufficient evidence of any benefit for the buyer. In the Court's opinion the mere possibility that the customer who bought the goods from the buyer could account to buyer is not sufficient ground for the seller's request under Art. 84(2)(a) CISG. |