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| A German buyer bought several tons of live fish from a Czech seller. The seller commenced an action claiming the purchase price because the buyer refused the payment alleging that some of the fish had died during transport. According to the buyer this happened because the fish were fed against all rules by the seller before transport. Furthermore, it alleged that the surviving fish carried the VHS-virus which infected the healthy fish of the buyer and led to the death of around 7,5 tons of the buyer's fish. The infection arose several months after the delivery. The buyer gave notice of the infection one month after its discovery. The buyer set off with the damages occurring from the infection. The first instance court granted the seller's claim.
The appellate court confirmed the lower court's decision. CISG was held to be applied as both parties had their places of business in contracting states at the time of the conclusion of the contract (Art. 1 (1) (a) CISG) and because the parties agreed upon its application during proceedings. The Court found that the buyer had no right to reduce the purchase price according to Art. 50 CISG or to set off with damages occurring from the infection of the fish which caused the loss (Art. 74 CISG) because the buyer had neither examined the fish nor had it given notice of the lack of conformity of the goods (VHS-infection) to the seller in time (Art. 39 CISG). As to the examination the court held that the requirement of examination had to be fulfilled within a short time after the delivery even if the lack of conformity is hidden. The buyer did not prove that it examined the fish after their delivery at all. This failure would be of no importance if the hidden defect could have only been discovered by an expert. The buyer, however, did not bring evidence concerning the symptoms of the illness and the fact that the infection could not have been discovered by a non expert. As to the notice of lack of conformity the court stated that the buyer did not give notice of the non conformity of goods in time because it only informed the seller of the infection one month after the discovery. In the light of previous decisions and literature the court held that the reasonable time of notice in Art. 39 (1) CISG must be interpreted in a strict way taking into account the need of certainty in international trade. Therefore, the notice given by the byer one month after the delivery was certainly not reasonable. The court found that the buyer has no right to claim damages under tort law because CISG excludes the application of competitive tort law rules when the notice of the non-conformity of goods is not given in time as in the case at hand. |