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| Abstract | ||||||||||||||||||
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| An Italian seller delivered floor tiles to a Dutch buyer, who resold a part of them to customers. Seven months after delivery, just before summer vacation, the buyer received complaints from a customer regarding the quality of the tiles, which had allegedly seriously worn down and whose surface had become dull and dark. The buyer inspected and cleaned the tiles within the following month (mid August) but did not give notice of the lack of conformity to the seller until three months later, when he received further complaints by the same customer and upon a second inspection was finally convinced that the goods were actually defective. The seller commenced an action asking for payment, which the buyer refused on the grounds of lack of conformity of the goods. At first instance the Courts decided in favor of the seller; the buyer appealed to the Supreme Court.
The Supreme Court confirmed the first instance decisions on the question of the applicability of CISG, as part of the governing law of the contract (Italian law). The lower Courts' decisions were confirmed also as regards the lack of conformity of the tiles. According to the Court, the buyer had not examined the goods as soon as practicable under the circumstances (Art. 38(1) CISG) and had failed to give notice of the lack of conformity to the seller within a reasonable time after he had discovered it or ought to have discovered it (Art. 39(1) CISG). The buyer should have inspected the goods immediately after receiving the customer's complaints in July instead of waiting until mid August, notwithstanding summer vacation, and should have given notice to the seller shortly afterwards and not almost four months later. The mere fact the buyer wanted to be sure of the existence of the defects before communicating it to the seller was not sufficient to consider the notice given within a reasonable time, since the buyer could have given notice if necessary expressing his own doubts as to whether the customer's complaints were well founded. Furthermore, the notice could have been sufficiently precise because the alleged defects could have been precisely described (early serious wearing down and altered coloration of the tiles). The seller was awarded interest on the sums due at the Italian statutory rate, accruing from the date in which payment had to be made, without the need of a formal request by the seller (Arts. 78 and 59 CISG). |