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| A German buyer and a French seller entered into a contract about delicatessen. The seller brought an action claiming payment of the price. In a partial decision (see Oberlandesgericht Rostock 10.10.2001, 6 U 126/00, Abstract and Fulltext in UNILEX) the Court had already decided on the applicability of CISG and on some of the claims concerned. In its final decision the Court had to deal with the claims not yet (fully) decided upon.
The Court rejected the buyer´s contention that some of the goods were defective or were delivered in an excessive quantity., since the buyer did not bring enough evidence that it gave sufficient notice of the lack of conformity within a reasonable time after it discovered it or ought to have discovered it (Art. 39(1) CISG). In particular, the Court held that such a notice must be given also in the case of excessive delivery. If the buyer either accepts the goods or does not notify the excessive quantity according to Art. 39(1) CISG, the price to be paid rises proportionally (Art. 52(2) CISG). Nor is Art. 40 CISG applicable, as the deviation from the contract was clearly stated in the documents delivered with the goods. Finally, the Court granted the seller interest (Art. 78 CISG) at the rate determined by German law, either because it was the law otherwise applicable to the contract, or because it was the law of the State in which currency the price had to be paid. |