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| Abstract | ||||||||||||||||||
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| A Russian buyer ordered a load of fish from a Danish seller. The parties had on previous occasions entered into agreements but only once before for the sale of fish. The documents related to the agreement included a specification provided by the seller on the buyer’s request. This specification included a description of the species of the fish - the name also given in Latin, the size of the fish, the manner of packing case and the date of production [..the catch..]. Subsequently the seller confirmed the order, repeating the description, except for the name in Latin which was omitted. Subsequently in an invoice issued by the seller to the buyer name in Latin was also omitted, but otherwise the invoice described the fish as in the specification.
Shortly after delivery the buyer gave notice to the seller, claiming lack of conformity concerning the species of the fish. The parties argued for several months without reaching a solution. During these months the fish were stored in freezer containers at the buyer’s expense. Seven months after the delivery buyer gave notice to seller, stating that the time of production was not that agreed in the contract. Subsequently the parties agreed to an expert appraisal of the fish. The buyer then sued the seller claiming damages. It argued that the species of the fish did not conform to the agreement. It also argued that the packaging of the fish showed that they had been caught prior to the agreed time and that the expert appraisal had established a lack of conformity in relation to the quality of the fish, existing at the time of delivery. The seller disclaimed any liability and filed an independent claim against the buyer for payment of the outstanding price. Without making any reference to Arts. 8 or 9 CISG, the Court stated that the commonly used way to specify the species of the fish in commercial transactions is to use its Latin name. In the business relationship between the parties it was normal procedure to provide a specification to describe the goods. As the buyer had placed his order on the basis of this specification, and as the fish delivered were in accordance with the Latin name in the contract, the Court decided that there was no lack of conformity (Art. 35(1) CISG). In relation to the production time and quality of the fish, the Court also ruled in favor of the seller. It stated that the buyer could easily have examined the packaging of the fish and thereby seen the time of production, or it could have checked the fish itself at the time of delivery. Thus, the buyer had not examined the fish within as short a period as practicable (Art. 38 (1) CISG). By not giving prompt notice to the seller concerning time of production and quality, the buyer had lost its right to rely on lack of conformity for these reasons (Art. 39 (1) CISG). The Court finally stated that the buyer not did have a reasonable excuse for its failure to give the required notice (Art. 44 CISG). |