A Canadian seller and an US buyer concluded a contract for the production and delivery of molds which the buyer would use to manufacture automobiles parts. When the seller was delayed in production, the buyer had to engage another producer to manufacture one of the ordered molds, as to ensure delivery to the final customer in due time. Other molds had to be finished ("grained") by another company. Accordingly, when the seller sued for payment, the buyer counterclaimed damages for the extra costs caused by the change of producer, and by the "graining" of the other molds. The buyer further claimed damages for breach of warranty, since some of the molds did not conform to contract specifications.
The buyer based its counterclaim both on breach of contractual warranty and on lack of conformity of the goods according to the applicable CISG provisions (Arts. 1(1), 35(1), 36(1)(2), 45(1)(a)(b) and 74 CISG). The Court granted the buyer damages without discussing CISG provisions on lack of conformity, notwithstanding the fact that CISG was applicable to the case at hand under its Art. 1(1)(a). |