Date: 05.03.1997
Country: Netherlands
Number: HA ZA 95-640
Court: Arrondissementsrechtbank Zwolle
Parties: CME Cooperative Maritime Etaploise S.A.C.V v. Bos Fishproducts Urk BV
A French seller delivered fish to a Dutch buyer which transformed it into fish filets and sold them inter alia to customers in England and Austria. Following customers' complaints over the quality of the product the buyer refused to pay part of the price and claimed set-off with damages. The seller commenced an action to obtain full payment.

The Court held that the buyer had lost the right to rely on a lack of conformity of the goods because it did not give notice to the seller within a reasonable time after it ought to have discovered the lack of conformity (Art. 39 CISG). In the case at hand the buyer should have discovered the defects by examining all the goods as soon as practicable (Art. 38 CISG) which under the circumstances was at the time of delivery or shortly afterwards.

In reaching this conclusion the Court took into account several factors. Firstly, the seller's standard terms, applicable to the contract, provided for short terms for notice of defects in frozen products, thereby also abiding to a usage in the fish market (Art. 9(2) CISG)). Secondly, a very short term for examination of the goods was necessary in view of the nature of the goods (perishable food products) and of the fact that the goods had to be transformed by the buyer, thus making it impossible for the seller to ascertain whether the goods sold were really defective.

Moreover, the Court observed that the buyer had both the opportunity and the duty to examine all the fish and not only a sample of it well before selling the products on to customers, since it could do so at the latest when it started processing each single fish unit into fish filets, and it could be expected to do so having already discovered and duly notified a lack of conformity in another type of fish delivered by the seller.

Finally, in order to confirm the given interpretation of Arts. 38 and 39 CISG, the Court referred to the duty of good faith and cooperation between the parties which is provided for by French law (the domestic law otherwise applicable to the contract). In this respect the Court observed - in agreement with scholarly writing - that the French notion of good faith is generally understood in a subjective way, and that it does not (yet) go far enough as international conventions (i.e. Art. 7(1) CISG) or as the UNIDROIT Principles for international commercial contracts. In the Court's opinion, the objective notion of the duty of good faith in the said international instruments gives more weight to the conclusion that in the case at hand the buyer should have examined the fish and discovered the defects before selling its products to foreign customers.