Date: 30.06.1995
Country: Switzerland
Number: OKZ 93-1
Court: Gerichtskommission Oberrheintal
Parties: Unknown
A Swiss buyer had charged an Austrian seller with the delivery and installation of four gates to be used for the construction of two halls. The parties later agreed on the substitution of the gates for a surcharge. After the installation of the replacement gates, the seller made out an invoice for the surcharge. Since neither the replacement gates were conforming to the contract the seller had to repair them a few months after their installation. The seller commenced an action asking for payment of the surcharge one year later. The buyer claimed that the work was not completed and therefore the term to give notice of the defects had not begun. In the alternative, the buyer relied on the lack of conformity of the replacement gates, claiming that notice of the defects had been given in due time.

The Court held that the contract was governed by CISG, as the Swiss private international law rules led to the application of the law of Austria, a contracting state (Art. 1(1)(b) CISG) and as the supply of labor (installation of the gates) clearly did not amount to a preponderant part of the obligation of the party furnishing the goods (Art. 3(2) CISG).

The case was decided in favor of the seller. The Court observed that according to Art. 58(1) CISG, if the contract does not contain any different provision the buyer must pay the price when the seller places the goods at the buyer's disposal. In this case the Court held that delivery had taken place when the seller completed the installation of the replacement gates. The seller was therefore entitled to payment of the surcharge on the price beginning from this date.

Moreover, the Court held that under Art. 39 CISG notice of non-conformity must be given within a reasonable time. In the case at hand, a notice given one year after delivery was found not to be reasonable.