An Austrian buyer and a German seller concluded a contract for the delivery of pineapples. The parties had agreed that COFREUROP (European standard terms for the sale of fresh fruits and vegetables) should govern the contract. When the goods were delivered, the buyer discovered that a part of the goods were defective. The buyer therefore claimed lack of conformity and only partially paid the purchase price. The buyer alleged it had immediately notified the seller of the non-conformity of the goods by fax, but such fax had only been transmitted the following day. The seller alleged that the buyer did not send the notice of lack of conformity within the 12 hours period provided by Art. 17(2)(c) COFREUROP.
The Supreme Court remanded the case to the lower court, instructing it to make a clear finding of facts on the circumstances that had prevented the buyer from sending a timely notice. With reference to scholarly writing on German domestic sales law - but without specific reference to CISG - the court stated that the buyer had the burden of proving whether or not it had made a timely notice.
Finally the court stated that according to Art. 27 CISG - which was considered to be applicable to the contract - the buyer did not bear the risk of delay of the notice of lack of conformity or its failure to reach the seller. |