A German buyer ordered a used agricultural machine from an Austrian company. The seller delivered the machine and requested the buyer to pay the agreed price to its German distributor. The buyer paid only part of the price alleging non-conformity. The Austrian seller declared itself ready to repair the machine on the distributor's premises. The buyer, who had already resold the machine to a third party, insisted on having it repaired on its own premises. The German distributor commenced an action against the German buyer requiring full payment of the price. The buyer counterclaimed costs for having the machine repaired on its own.
The Court held that the contract was concluded between the Austrian company and the German buyer, since the German distributor only acted as a collector of the money paid for the agricultural machine. The contract was governed by CISG, as at the time of its conclusion the parties had their places of business in two contracting states (Art. 1(1)(a) CISG).
According to the Court, the buyer was not entitled to reduce the price pursuant to Art. 50 CISG, as in its opinion the parties had agreed that the machine should be repaired by the Austrian seller and the buyer, by not taking the machine to the distributor's premises, prevented it from doing so. |