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| A German buyer and an Italian seller concluded a contract for the sale of fashion goods. The contract referred to autumn goods and contained the clause 'to be delivered July, August, September + -'. On September 26th the first delivery was attempted. The buyer, alleging that according to the contract the seller should have delivered a third of the goods in July, a third in August and a third in September, refused to accept the goods and returned the invoice on October 2nd. The seller commenced action alleging it had delivered on time and claimed payment of the full price.
The court held that the contract was governed by CISG, as the German private international law rules led to the application of the law of Italy, a contracting State (Art. 1(1)(b) CISG). The court held that even accepting the buyer's contention that the seller had not delivered on time according to Art. 33 CISG, the buyer had not effectively avoided the contract by refusing acceptance and returning the invoice. In order to avoid the contract as provided in Art. 49(1)(b) CISG, the buyer had to fix an additional period of time for performance after each alleged non-delivery. As the buyer did not fix the additional period of time for performance, the court held that the seller was entitled to the full purchase price. Further the court held that the seller was entitled to interest accruing from the date when payment was due (Arts. 59 and 78 CISG) at the statutory rate of interest in force in the seller's country (Italy). The court awarded additional interest as damages (Arts. 78 and 74 CISG). |