A German buyer ordered textiles from a French seller to be handed over to the carrier within a specified period. According to the seller's standard sale conditions, complaints had to be made within eight days by registered letter. Two days after the agreed time for delivery, the goods were handed over to the carrier and delivered two days later. The buyer maintained that it had given notice of the late arrival six weeks after the delivery. Later, the buyer informed the seller that it would keep the goods only at a reduced price. The seller commenced an action against the buyer claiming full payment of the purchase price and interest.
At first instance, the Court (Amtsgericht Ludwigsburg, dated 21- 12-1990, No. 4 C 549/90) upheld the seller's action. The contract was held to be governed by CISG, as the German private international law led to the application of the law of France, a contracting State (Art. 1(1)(b) CISG). The Court held that delivery after two days of the agreed time did not amount to a fundamental breach of contract according to Art. 25 CISG, enabling the buyer to avoid the contract. Furthermore, the Court held that the buyer had not avoided the contract within a reasonable time after it became aware of the late delivery (Art. 49(2)(a) CISG), since the Court considered six weeks not to be reasonable.
The appellate Court upheld the judgment but the decision was based on other grounds. In the opinion of the Court, the parties had implicitly derogated from CISG in respect of complaints about the delivery of the goods by agreeing on the seller's own standard sale conditions, Art. 6 CISG. In particular, the parties derogated from Art. 27 CISG which states that the receiver bears the risk of transmission of communications. |