|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A Greek buyer and a Dutch seller concluded a contract for the sale of furs. Shortly after delivery the furs were sent to a third party for processing, which noticed that a part of the furs were defective. As a consequence the buyer commenced an action against the seller claiming avoidance of the contract as well as damages. The seller contested the extent as well as the nature of the damages and alleged that the buyer had failed to give notice in time.
At first instance, the Court held that the contract was governed by CISG. The Court further held that the buyer had lost its right to rely on a lack of conformity as it did not examine the goods 'within as short a period as practicable in the circumstances', i.e. before processing of the goods, and as it had not given timely notice of the defects. The Court considered the notice given three weeks after the goods were sent to the third party for processing as not timely, considering that at that moment the goods had already undergone processing. The buyer appealed. The appellate Court confirmed the lower Court's decision. It specified that Art. 38 CISG does not contain a duty for the buyer to examine the goods; omission of examination however deprives the buyer of the right to rely on a lack of non conformity of the goods. Furthermore, the Court addressed the issue of whether the buyer had a reasonable excuse for its failure to give the required notice (Art. 44 CISG). Considering that the buyer could have had the goods examined earlier because an expert could have taken a sample at the moment of delivery, and taking into account the existing means of communication, the Court found that the buyer did not have a reasonable excuse. |