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| An Italian seller and a German seller concluded a contract for the sale of clothes, pursuant to which the seller was to deliver the goods to the carrier within a certain period of time (February-March-10 April). The seller commenced action claiming full payment of the price plus interest at the rate allegedly charged by its bank for a loan (13,5% per year). The buyer pleaded late delivery of part of the goods.
The Court held that the contract was governed by CISG according to Art. 1(1)(b) CISG. As to the late delivery, the Court found that the seller had complied with Art. 33 CISG because a one day delay is not a fundamental breach of contract unless the parties have agreed on an absolute time limit for delivery (Art. 25 CISG). Moreover the buyer had lost the right to declare the contract avoided according to Art. 49(2)(a) CISG, not having done so within a reasonable time after it had become aware that delivery had been made. The seller was thus awarded the contract price (Art. 53 CISG) as well as interest at the Italian statutory rate (Art. 78 CISG), since it had not given evidence of the claimed higher rate of interest. |