An Italian buyer and a Swiss seller have been in commercial relationships since several years for the sale of furniture. As some disputes arose, the parties decided to quit their commercial relationships. The seller requested the buyer to pay the price of the outstanding invoices. The buyer refused to pay alleging non conformity of some delivered furniture for which the seller requested payment. The seller brought an action for the recovery of the unpaid price.
In the Court's opinion the buyer had lost its right to rely on lack of conformity of the goods as it did not give timely notice of lack of conformity specifying the nature of the lack of conformity as required under Art. 39(1) CISG. The Court held that the correspondence between the buyer and its customers, in which the latter complained about some defects in the resold furniture, could not be considered a proper notice of non conformity under Art. 39(1) as such correspondence was external to the contractual relationships between the seller and the buyer. Also the correspondence between the buyer and the seller was not sufficient to meet the requirement of a notice of non conformity. In the opinion of the Court the phrases included in the correspondence were too general and did not specify the nature of the lack of conformity of the goods as required by Art. 39(1) CISG.
The Court decided in favor of the seller and awarded the seller the contract price plus interest according to Art. 78 CISG. Since CISG does not determine the interest rate, the Court applied the Swiss law as the law otherwise applicable to the contract and applied the statutory interest rate of Switzerland. |