Date: 23.05.2001
Country: Belgium
Number: 1999A/2160
Court: Hof van Beroep, Gent
Parties: Hoechst Trevira GmbH & Co KG v. N.V. Recospin
A Belgian buyer bought textiles from a German seller, which were delivered in successive instalments. The seller sued the buyer for payment of the price. The buyer counter-claimed for damages alleging of non-conformity of the goods. The first instance court with an interim decision appointed an expert to investigate the quality of the goods. The seller appealed that decision, claiming that the buyer could no longer rely on the lack of conformity since it did not give timely notice thereof within the reasonable time set forth in Art. 39 CISG, and that too much time had passed for an expert investigation on the existence of the alleged defects.

The Court applied CISG since the relevant conflict of law rules (i.e. the 1955 Hague Convention on the law applicable to international sales of goods) referred to the law of Germany, a contracting State (Art. 1(1)(a) CISG).

According to the Court, with respect to two deliveries, though the buyer did give notice to the seller within a reasonable time after discovery of the defects (Art. 39 (1) CISG), it could nevertheless no longer rely on the lack of conformity since it did not react to the seller's disclaimer of liability nor did it seek to appoint an expert investigation concerning the alleged lack of conformity. The buyer did so only several years later, which was considered to be too late since it is up to the buyer to prove the lack of conformity. The first instance decision appointing an expert was therefore not upheld.

had to be applied to find the applicable law. According to Article 3, the law of the seller had to be applied, thus German law. As Germany was party to CISG, CISG had to be applied. Notice of non-conformity had been given too late and the fact that the seller had delivered fibre to the buyer two years earlier did not mean that the buyer should have known the seller's production methods. The buyer did nothing for three years and then formulated a big counter-claim. This did not seem reasonable. The court granted the seller’s claim. The parties did not agree on an interest rate and the Belgian legal rate was applied.