A Dutch buyer purchased a certain quantity of plants (daisies) from a Belgian seller. After taking delivery the buyer refused to pay the price alleging that the plants were defective. The seller commenced an action to obtain payment.
The Court held that there was no need to ascertain whether the plants were defective. The buyer could not rely on a lack of conformity of the plants since it had not given notice to the seller within a reasonable time after the defect was discovered or ought to have been discovered (Art. 39 CISG). A written notice was sent four months after delivery. This was not considered reasonable, especially on account of the fact that daisies are perishable and usually have a limited duration, that the defects alleged by the buyer were easily discoverable (being related to the appearance and color of the plants) and that the plants were intended for resale. The buyer failed to prove that it had given notice at an earlier time.
The Court observed that in any case the buyer had lost the right to declare the contract avoided under Art. 49(1) CISG, since it should have sent to the seller notice of avoidance within a reasonable time (Art 49(2) CISG). A further reason for denying the buyer's right to avoid the contract was based on the fact that the buyer was unable to make restitution of the goods as required by Art. 82(1) CISG, having disposed of some of them and having resold the ones which could be cleaned. |