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| Abstract | ||||||||||||||||||
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| A French buyer and a Danish seller concluded a contract for the sale of a particular variety of Christmas trees. The documents of the contract included a fax message from the buyer, specifying the requested percentage of respectively first and good second class trees and furthermore describing the quality, height and price of the trees. Upon delivery in France on December 2, the buyer gave notice to the seller, stating that the quality seemed fine but that the height of the trees did not comply with the specifications in the contract; thus the price had to be reduced. Furthermore the buyer stated that the price of the transport was too high. The seller did not accept this notice from buyer. The buyer repeated its objections in a second notice given three days after the first notice, stating that it was willing to pay a reduced price for the trees. The seller refused to accept also this second offer and claimed the purchase price as agreed in the contract. On December 10 the buyer gave another notice to the seller, declaring that the contract was avoided on the ground of lack of conformity of the goods. The seller then brought an action against the buyer claiming payment of the full price.
In its decision the High Court, upholding all the reasons given by the lower court [Randers Byret, November 4 1998, case number BS 9700016-4], found that the fax message from the buyer specifying the quality and quantity of the trees was the decisive document of the contract since the seller had not objected to this fax message. The Court, in interpreting the wording of the contract, found that the delivery was non-conforming. The court found that in the circumstances there had been a fundamental breach of contract by the seller (Art. 25 CISG). The court stated however that the buyer had not clearly declared the contract avoided in its notices prior to its fax message of December 10. Thus the buyer had lost the right to declare the contract avoided according to Art. 49(2) CISG, since the notice of avoidance had not been given within a reasonable time after the buyer discovered or should have discovered the defects. In reaching this conclusion the court took into consideration that the goods in question were Christmas trees and that the sale of such goods should have taken place within a short period of time since the trees would be without any value after December 24. The Court then decided that the notices of December 2 and 4, concerning the height and the quality of the trees, had been given by the buyer in good time according to Art. 39(1) CISG. The buyer was thus entitled to an estimated reduction of the purchase price (Art. 50 CISG). The buyer’s other claims against the seller for its liability could not be met as there was no evidence thereof. Finally the Court decided that the buyer had not neglected its duty to preserve the goods (duty of concern) or the duty to limit its loss. |