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| Abstract | ||||||||||||||||||
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| An Italian seller and a German buyer concluded a contract for the delivery of textiles with two different patterns. Upon delivery, the buyer alleged that the goods did not meet the contract specifications since one pattern was different than that agreed upon. The buyer returned the portion of textiles with the non conforming pattern and paid only part of the price relating to the conforming portion. The buyer alleged that since part of the goods delivered did not conform with the agreed pattern, neither could the conforming textiles be used as contemplated under the contract. The seller commenced legal action demanding full payment of the price for the conforming textiles.
The Court decided in favor of the seller. In its opinion the buyer was not entitled to declare the contract avoided because of the non conformity of part of the textiles (Art. 49 CISG). On one hand, the buyer did not give sufficient evidence that either the conforming textiles could no longer be used as contemplated under the contract. The simple fact the buyer had ordered textiles with two different patterns was not in itself sufficient to show the buyer's intention to resell them only together in a combined manner. After all the buyer could have bought the missing parts elsewhere. On the other hand, the fact that, at the time of delivery, the seller had expressly declared that for the time being it could not deliver the missing textiles, did not constitute a definitive refusal to perform. This would only have been the case if the seller had not performed within an additional period of time for performance fixed by the buyer in accordance with Art. 47 CISG. A further reason for denying the buyer's right to avoid the contract was found in the fact that the buyer, having resold part of the conforming textiles, was unable to make restitution of the goods as required by Art. 82(1) CISG. As to the rate of interest on the unpaid price, the Court held that it was to be determined according to the statutory rate of the country the law of which had been chosen by the parties as the applicable law. |