Date: 10.02.1994
Country: Germany
Number: 6 U 32/93
Court: Oberlandesgericht Düsseldorf
Parties: Unknown
Between February and July 1989, a German trading company ordered textiles from a French company in order to sell them on to prospective customers on its own behalf. After the delivery of the goods, the German buyer refused to pay the agreed price as it alleged, inter alia, non conformity of the goods. The French seller commenced an action against the German buyer requiring full payment of the price and claiming the costs of collecting the outstanding credits.

The court held that the contract was governed by CISG, as the German private international law rules led to the application of the law of France, a contracting State (Art. 1(1)(b) CISG).

The court held that the buyer had to pay the purchase price (Art. 53 CISG), and did not have the right to rely on a lack of conformity of the goods, as it had not examined them and given notice of their non-conformity in compliance with Arts. 38 and 39 CISG. The court stated that these requirements must be construed strictly. In determining whether the buyer has examined the goods and given timely notice to the seller of their non-conformity, the circumstances of the case and the opportunities of the parties to the contract have to be taken into account. According to the court, the buyer could have easily examined samples of the goods and given notice to the seller of their non-conformity within a few days after delivery, while it actually did so not earlier than two months after delivery. The court found that a period of more than two months was not reasonable, as required in Art. 39(1) CISG.

The court stated that the seller might be entitled to recover damages (Art. 74 CISG) deriving from the costs of collecting the outstanding credits. The court held that any failure to perform a contractual obligation amounts to a breach without the need for the other party to formally request performance.

According to Art. 78 CISG, the seller was entitled to interest on the price, with the interest rate being determined in accordance with the domestic law otherwise applicable to the contract (French law as the law of the seller's country).