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| Abstract | ||||||||||||||||||
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| The German Defendant had been in a longstanding business relationship with a Danish company producing smoked salmon which it usually bought from the Norwegian Claimant. Due to economic difficulties of the Danish company, Claimant contacted Defendant offering to sell directly to it a certain quantity of raw salmon for further processing by the Danish company. Defendant accepted. The contract provided for delivery of the goods at a public warehouse at buyer's disposal. Notwithstanding that, Claimant delivered the goods at the place of business of the Danish company, as indicated in the invoices and delivery notes to which Defendant never objected. After the delivery of the goods the Danish company turned bankrupt and Defendant never received either the raw salmon nor the smoked salmon. Requested by Claimant to pay the price of the raw salmon, Defendant refused to pay and asked for avoidance of the contract, claiming that Claimant had failed to deliver the goods at the place indicated in the contract.
The Court held that CISG was applicable as both parties had their place of business in contracting States (Art. 1 (1) CISG). As to the merits of the case the Court found that Defendant was not entitled to avoid the contract. First of all, Claimant's delivery of the goods at the place of business of the Danish company had been tacitly accepted by Defendant. Moreover, in no case it could amount to a fundamental breach of the contract according to Art. 25 CISG, since it did not deprive Defendant of what it was entitled to under the contract: indeed, at the time of the contract it did not appear to endanger Defendant's position, given that the contract not only made it clear that the goods remained in Defendant's property, but also that they were to be delivered, once processed, to Defendant. Finally, the Court found that Defendant had at any rate lost its right to declare the contract avoided since it had not done so within a reasonable time according to Art. 49(2)(b) CISG. Since Claimant had fulfilled its contractual duty by delivering the goods to the Danish company, the risk had passed to Defendant according to Art. 69(2) CISG. Therefore Defendant was not discharged from its obligation to pay the price according to Art. 66 CISG. |