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| Abstract | ||||||||||||||||||
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| A German seller and a Moroccan buyer concluded a contract for the delivery of a chemical substance to be used for the production of plastic (PVC) tubes. Approximately one month after delivery the buyer tried to produce the plastic tubes by means of a used machinery which had been bought for this purpose. Production however failed since the PVC tubes kept catching fire. The buyer alleged that the goods were defective and asked for damages.
The Court held that the buyer was not entitled to rely on a lack of conformity of the substance since it did not examine it as soon as practicable under the circumstances and did not give notice of the defects within a reasonable time after discovery (Arts. 38 and 39 CISG). Generally speaking, examination of the goods by the buyer should occur within a week after delivery and notice of the lack of conformity should be given in another week at the most. No proof was produced by the buyer to show why in this specific case a longer period would have been appropriate. In the case at hand the buyer first discovered the alleged defect when it started production of the tubes, that is more than one month after the seller had put the goods at the buyer's disposal, while it should have processed a sample of the substance with the machinery it intended to use as soon as practicable under the circumstances. The fact that the buyer's deficient organisation caused delay in installing and putting the machinery into operation did not constitute a reasonable excuse but was well within the buyer's sphere of control. Nor was the buyer exempted from giving notice of lack of conformity due to the fact that the seller did not give any warning as regards the type of machinery which should have been used for treatment of the substance (Art. 40 CISG). The seller had delivered a standard blend which did not cause any problems if processed with a standard machinery, but which could not be used by the outdated machinery bought by the buyer. It was up to the buyer to inform the seller that it intended to operate an unusually old machinery (almost twenty years old). This was all the more so since the buyer was to be considered a competent tradesman. The Court finally held that the seller had not waived its right to set up the defense that notice of non conformity was late. The mere fact that the seller had sent its employees to check the machinery after receiving notice of lack of conformity did not result in the loss of the right to plead that notice was late. The party's intention to waive should on the contrary be clearly established. |