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| Abstract | ||||||||||||||||||
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| A Swiss buyer purchased from a German seller grinding material in order to manufacture paper products. The products were then sold to another Swiss company and processed into finished goods. After using the grinding material the buyer ascertained damage to its equipment and to the material itself. About twenty days later the second Swiss company also complained that the tissues manufactured by using the buyer's paper products were defective. An expert examination was then ordered. Upon receiving its results the buyer notified the seller of the defects in the delivered material. An action against the seller was brought by the second company as an assignee of the buyer's claim for damages.
At first and second instance the courts rejected the buyer's claim, holding that notice of lack of conformity had not been given within a reasonable time according to Art. 39(1) CISG. The buyer should have taken action immediately after discovering the damage even if its cause was then not fully ascertained, and therefore seven weeks after that discovery were not timely. The Supreme Court reversed and held that the the notice of lack of conformity had been timely given. In the case at hand, the buyer could not have discovered the defect by an ordinary examination of the purchased goods either upon delivery, or at any time before damage ensued. Given the difficulty to determine the cause of the damage, the buyer should be further allowed a period of about one week from discovery of the damage to consider which actions were required. To this the two-week period of the expert examination is to be added, followed by the reasonable time for notice which according to the Court usually amounts to one month. Therefore, seven weeks after discovery of the damage was considered to be still reasonable. In the Court's opinion the buyer's notice had satisfied also the required precise specification of the nature of the lack of conformity (Art. 39(1) CISG). In the case of machineries and technical equipment it is enough to describe the defects without the need to specify their origin. |