A Swiss buyer ordered goods (plastic knapsacks, wallets and bags) from an Italian seller. The order contained a request that the goods be delivered within 10 to 15 days. Two months later the seller, after asking the buyer to renew its order, specified the purchase price and assured the buyer that all the goods would be dispatched within a week. Almost two months after paying the price, the buyer had not yet received the goods. As a consequence the buyer sent the seller a notice cancelling the order and requiring refund of the price. The seller admitted that it had handed over the goods to the carrier only after receiving the notice of cancellation from the buyer and that, moreover, the delivery was partial. The buyer refused to accept the late and partial delivery and commenced an action claiming avoidance of the contract for breach by the seller. The buyer also claimed a refund of the purchase price with interest and damages.
The Court held that according to the statements and conduct of the parties the contract was to be considered concluded when the seller specified the price and that the seller was bound to dispatch all the goods within the following week. Therefore the Court held that the delay by the seller in delivering the goods together with the fact that after two months from the conclusion of the contract the seller had delivered only one third of the goods sold amounted to a fundamental breach of the contract according to Art. 49(1)(a) CISG.
The Court held that the buyer was entitled to avoid the contract and to recover the full purchase price already paid to the seller. Without referring to CISG, the Court awarded the buyer interest on the price to be refunded at the Italian statutory interest rate. Contrary to what is provided in Art. 84(1) CISG with regard to time of accrual of interest, the Court held that interest was payable from the date of avoidance of the contract. The Court did not grant any further damages as there was no evidence of any further damage suffered by the buyer. |