Date: 16.12.1991
Country: Switzerland
Number: 15/91
Court: Pretura di Locarno-Campagna
Parties: Unknown
In summer 1990, a French seller concluded a sales contract with a Swiss buyer. Subsequently, the buyer refused to pay by the due date (July 12, 1990), alleging that the sum due should be set-off against the value of a sample of goods which it had sent back to the seller on June, 26. After the seller commenced legal action to recover the price, it was found in August 1991 that the seller refused to accept the sample, which the mail service later destroyed. Though the buyer acknowledged that it had to pay the price, it claimed that interest on the price should accrue only from August 1991, when the buyer was first informed of the seller's refusal to accept the sample, as the buyer could not be held responsible for the delay in receiving such information.

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 France, a contracting State (Art. 1(1)(b) CISG).

The court observed that according to Art. 78 CISG, the duty to pay interest for the delay in payment for the price is not subordinated to a formal request by the seller. The court held that the events concerning the sample did not alter the buyer's obligation to pay interest from the date by which the price was due (July 12, 1990).

The court held that the rate of interest be determined by the law governing the contract in the absence of CISG (in the case at hand, French law as the law of the seller's place of business). The relevant rate amounted to 9.5% but since the seller asked only for 6% interest rate, the court awarded the latter rate.