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| Abstract | ||||||||||||||||||
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| An Italian seller and a German buyer concluded a contract for the sale (on samples) of textiles. When the goods were delivered, the buyer complained that they did not conform to the samples, and fixed to the seller a further period of fourteen (14) days to deliver unobjectionable goods (einwandfreier Ware). The seller sent other samples to the buyer, but the latter refused to accept them. The seller brought legal proceedings claiming payment of the purchase price.
The Court held that the buyer had to pay the purchase price, because the textiles were generally suitable for the producing of skirts and matched the description of goods that would ordinarily be used for this purpose (Art. 35 (2) (a) CISG). In fact, the buyer had not informed the seller that the textiles were supposed to have specific characteristics, nor was this evident from the circumstances (Art. 35(2)(b) CISG). Moreover, the textiles had the qualities of the samples shown to the buyer (Art. 35 (2)(c) CISG). The Court further stated that the buyer could not rely on the lack of conformity because it had not specified the nature of the defect and had not given timely notice to the seller (Art. 39 (1) CISG). The Court held that in the case at hand a period of twelve (12) days for such notice was unreasonable. Finally, the Court pointed out that the buyer had refused to try other textiles offered by the seller and had only set an additional time for performance (14 days) without specifying the nature of the defect. In doing so, the buyer had deprived the seller of its right to cure laid down in Art. 48 CISG. The Court concluded that the buyer was not entitled to avoid the contract pursuant to 49 (2) (b) (ii), (iii) CISG. |