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| Abstract | ||||||||||||||||||
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| A German seller and a Danish buyer concluded a contract concerning the sale of living sheep delivered for slaughter. The sheep were delivered on time and were examined by the buyer the day after their nightly delivery. Four days after the delivery the buyer gave notice to the seller claiming lack of conformity, as he did not accept the condition of the sheep and that he subsequently refused to pay the purchase price. The seller commenced legal actions claiming payment of the full purchase price due according to the contract with interest.
The buyer submitted that he was not bound by the contract as he had given the seller timely notice of the lack of conformity of the sheep. The buyer argued that upon examination of the sheep it had made a phone call to seller in which the buyer had stated that it did not agree with the quality of the sheep. Furthermore, the buyer submitted that the seller had lost his right to rely on Art. 38 and 39 CISG as the seller knew or could not have been unaware of the lack of conformity (Art. 40 CISG). The Court first stated that CISG was applicable on the contract (Art. 1 (1) (a) CISG), as living animals were within the scope of definition of the concept »sale of goods« under Art. 1(1) CISG. The Court then established that the buyer had examined the sheep within the time required for in Art. 38 (1) CISG. However, in the Courts opinion the buyer had failed to comply with the Art. 39 (1) CISG as it could not be proved that the buyer had given timely notice concerning the lack of conformity. In this connection the buyer had failed to show that it did make the phone call to the seller upon examination of the sheep. Moreover this alleged notice given by phone did not fulfil the requirements in Art. 39 (1) CISG, as it did not sufficiently specify the lack of conformity. As a consequence the seller would have no chance to take the necessary steps for the relief of the lack of conformity. The buyer did evidently give a notice of lack of conformity four days subsequent to the delivery. However, in this case the Court held that as far as the living sheep delivered for slaughter were concerned a notice of lack of conformity had to be given within no more than two or three days (Art. 39 (1) CISG). Finally the Court denied the buyer´s argument that the seller had lost his right to rely on Art. 38 and 39 CISG, as the buyer had failed to show that the seller had any knowledge of the lack of conformity (Art. 40 CISG). The Court then concluded that the buyer was obliged to pay the purchase price to the seller under the contract and awarded the seller interest according to German law as this matter was not covered by the provisions of CISG. |