|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| In 1991 a German buyer and an Italian seller concluded a contract for the sale of a stock of women shoes. The buyer did not pay part of the price alleging that the seller had not delivered the goods within the agreed time and that the goods did not conform to the contract. The seller commenced legal action claiming payment of the balance of the price.
The court applied CISG as both parties had their places of business in contracting States (Italy and Germany) at the moment of the conclusion of the contract (Art. 1(1)(a) CISG). The court held that the buyer had not validly declared the contract avoided. In the court's opinion, the buyer, in order to declare the contract avoided for late delivery, has to fix an additional period of time for performance by the seller; moreover, such period has to elapse without the seller performing its obligation (Arts. 49(1)(b) and 47(1) CISG). In the case at hand, the buyer was found not to have given evidence of fixing such an additional period of time. With respect to the alleged non conformity of the goods, the court stated that the lack of conformity entitles the buyer to declare the contract avoided only when it amounts to a fundamental breach of the contract (Art. 49(1)(a) CISG). In the opinion of the court such a requirement is not met, for instance, when the defects do not prevent the buyer from making all the same a reasonable use of the goods. In the case at hand, the buyer had only alleged that the shoes had 'defects' and that they had been made with a material different from the material agreed upon by the parties; the buyer, however, had not proved that the shoes could not be reasonably used otherwise because of their defects. The court granted the seller the right to payment of the balance of the price as well as interest at the rate of 10% (statutory rate of the country of the creditor-seller). The seller was not awarded the higher interest rate of 13,5% as further damages, since it had not given evidence of making recourse to bank loans. To this effect, the mere production of a certificate issued by the Central Bank of Italy, showing the trend of the discount rate in Italy, was held not to be sufficient evidence. |