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| Abstract | ||||||||||||||||||
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| An Argentinean seller and a Dutch buyer concluded a contract for the sale of 16,000 boxes of Argentinean cherries. The shipment was to be performed by aircraft in subsequent instalments. After having received 11,000 boxes in five instalments - the first three of which had been checked and approved of before shipment in Argentina by a "quality inspector" appointed by the buyer - the buyer refused to accept further shipments. It commenced an action against the seller claiming lack of conformity of the received cherries, in particular citing pitting (which could have been caused by hail), heavy bruising allegedly caused by the use of an unsuitable packaging, dullness of of the fruit, dust on the fruit allegedly caused by use of dirty water and dehydrated stems.
The Court held that the contract was governed by CISG as the parties had their places of business in contracting States (Art. 1(1)(a) CISG). The Court held that according to CISG the buyer was obliged to examine the goods of each delivery separately and as soon as possible under the circumstances (Art. 38(1) CISG), and to give notice of the lack of conformity within a reasonable time after discovery of the defects. As to the first three instalments, the Court ruled that the "pitting" and the unsuitable packaging which led to "bruising" of the fruit should have been dicscovered by the buyer's quality inspector in Argentina, since they were present before shipment and should have been easily detected by a reasonable inspector in the trade concemed. Regarding the other defects claimed by the buyer for the first three instalments, the Court held that it was up to the buyer to prove: a) that the alleged defects were present in a specific percentage of the received goods and that they rendered the goods not conforming to the quality standard agreed upon by the parties; b) that the defects were caused by conditions already existing before passing of risk to the buyer, i.e. before shipment; c) that such conditions could not be discovered before shipment by the quality inspector appointed by the buyer. Finally, concerning the claim for lack of conformity of the last two instalments, which had not been checked by the buyer's inspector before shipmetn, the buyer should further prove its statement that such an examination was unnecessary since it would not have led to discovery of the defects. |