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| In 1989 an Italian seller and a Dutch buyer concluded a contract for the sale of cheese. The seller delivered frozen cheese. The buyer commenced legal action claiming that the seller was in breach of the contract because it had delivered cheese containing maggots.
The court held that the contract was governed by CISG, as the Dutch private international law rules led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). The court stated that the buyer, in order to have recourse to the remedies of reduction of price and damages in case of non conformity, must comply with the requirements established by Arts. 38 and 39 CISG, i.e. the buyer must examine the goods as soon as practicable and give notice of the non-conformity within a reasonable time from the moment it has discovered or should have discovered the defects of the goods. With respect to the examination of the goods, the court held that the fact that the cheese had been delivered frozen did not exempt the buyer from its duty to make timely examination, as the buyer could have defrosted a portion of the cheese. With respect to the notice of non-conformity, the court held that one of the elements to be taken into account in determining whether the buyer has given timely notice is the nature of the goods. In the case at hand the period within which the buyer should have given notice of non conformity was necessarily short, since cheese is a perishable good. The court found that the buyer had failed to give timely notice as to the presence of maggots in the cheese. The court held that the buyer should be given the opportunity to prove that the maggots were in the cheese when it was frozen in Italy. Obiter, the court observed that in the event that the buyer succeeded in proving that the maggots were in the cheese before carriage, the seller would be prevented by Art. 40 CISG from relying on the provisions of Arts. 38 and 39, and the buyer would be entitled to the remedy of reduction of price according to Art. 50 CISG. |