|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A Belgian buyer and a French seller concluded a contract for the sale of cotton fabrics. About two months after delivery the buyer gave notice of the non conformity of the goods by telephone and sent back the goods to the seller. In another month a notice by fax followed in which the buyer complained about the "bad quality" of the delivered goods. As the price remained unpaid, the assignee of the seller's claim commenced an action to obtain payment of the price as well as damages and interest. The buyer counter-claimed asking for avoidance of the contract and damages.
The Court held that the contract was governed by CISG because the parties at trial agreed on CISG as the applicable law. In the Court's opinion the buyer had lost the right to rely on a lack of conformity of the goods because it had not given notice of their non conformity within a reasonable time after its discovery and had failed to specify the nature of the defects in compliance with Art. 39(1) CISG. As regards the time of notice, the Court found that even the first notice by telephone was late: a period of approximately two months after delivery was not reasonable, taking into account that the defects were easily noticeable and that in the trade concerned the goods are usually processed or sold quickly. With respect to the requirements for notice, the Court considered the buyer's complaint of "bad quality" as a failure to specify the nature of the defects. The Court awarded the seller payment of the price as well as interest under Art. 78 CISG. As CISG does not specify the rate of interest payable, the Court, considering the circumstances of the case, decided to award interest at the Belgian statutory rate. Furthermore the Court, though observing that CISG does not require a formal request for payment, decided that under the circumstances of the case interest accrued from the date of the seller's formal request for payment. |