|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| An Italian company and a Swiss company concluded a reciprocal exclusive distributorship agreement (accord de distribution exclusive réciproque), whereby each party was to purchase sport items from the other party and to resale same in certain countries. When the Italian company, facing financial difficulties, increased the price of its own products, the Swiss company stopped its purchase orders and ended their business relationship. The Italian company (acting as seller) commenced legal action to recover the unpaid balance of the price for goods previously sold and delivered to the Swiss company. The Swiss company (acting as buyer) raised the defense that certain deliveries by the Italian company were late and certain goods were non-conforming. Moreover, the Swiss company (acting as seller) counter-claimed the unpaid balance of the price for the goods that it had sold and delivered to the Italian company. The Swiss company also alleged that the Italian company's sudden increase of the price amounted to a breach of their agreement.
The Court held that the parties had in reality concluded multiple contracts for the reciprocal sale and purchase of goods (ventes mobiliéres successives), which were all governed by CISG as both parties had their places of business in contracting States (Art. 1(1)(a) CISG). As to the Swiss company's (buyer) argument that the deliveries were late, the Court noted that under the Convention the seller must deliver the goods, if a date is fixed or determinable from the contract, on that date (Art. 33(a) CISG), or if a period of time is not fixed by or determinable from the contract, at any time within that period, unless circumstances indicate that the buyer is to choose the date (Art. 33(b) CISG), or, in any other case, within a reasonable time after the conclusion of the contract (Art. 33(c) CISG). The Court concluded that, in the case at hand, the requirements of Art. 33 CISG were satisfied as there was neither evidence that the parties had fixed a date for the deliveries, nor that the alleged delays had caused any harm onto the Swiss company (buyer). On these grounds, the Swiss company's (buyer) argument was rejected. As to the Swiss company's (buyer) argument that the goods were non-conforming, the Court held that the buyer was not entitled to rely on the lack of conformity of the goods as it had failed to give notice thereof to the Italian company (seller) within a reasonable time (Art. 39 CISG). In the case at hand, the buyer gave notice of non-conformity to the seller eight months after delivery, which the Court held to be not a reasonable time. The Court further held that the notion of warranty (garantie) to be found in the various domestic laws is abandoned by the Convention and replaced by a unitary notion of conformity, provided by Art. 35 CISG. Citing Art. 35(3) CISG, which states that the seller is not liable for any lack of conformity if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity, the Court held that a buyer who purchases certain goods despite their manifest lack of conformity is supposed to have accepted them as they are. This rule can also be derived from Art. 36 CISG and reflects the general principle of good faith. As to the Swiss company's argument that the Italian company had breach the agreement by increasing the prices, the Court pointed out that such increase only referred to future orders and deliveries and that it was not precluded by their agreement. Moreover, in the Court's opinion, the Swiss company could have requested further negotiations before terminating the agreement. On these grounds, the Court held that the Italian company (seller) was entitled to payment of the price for the goods already delivered (Art. 59 CISG). No further damage under Art. 74 CISG was awarded by the Court as the seller had failed to provide evidence thereof. The Court awarded the Italian seller interest on the sum in arrears, in accordance with Art. 78 CISG. The Court observed that, pursuant to Art. 7(2) CISG, the interest rate should be determined in accordance with the law otherwise applicable to the contract. As the Swiss rules of private international law led to the application of Italian law, the Court applied the Italian statutory interest rate. |