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| An Italian seller and a Spanish buyer concluded a contract for the sale of an industrial machine. The price was paid with the delivery of a promissory note. Afer the buyer did not honour the note, the seller commenced proceedings to judicially execute the payment of the amount corresponding to the face value of the note.
The buyer started an opposition action against the execution proceedings, alleging the non performance of the seller’s obligation to delivery a functioning machine as agreed. The court rejected the opposition action on Spanish procedural law grounds. The court observed, obiter dictum, that CISG was applicable to the case at hand as the parties resided in different contracting States. The court also observed that, with respect to the fixed term of 30 days allowed by Spanish domestic law for notification of defects, Article 39 CISG contained a “laxer wording” to establish the obligation of the buyer to send notice of lack of conformity of the delivered goods, and that the buyer had failed to give any notice within a reasonable time after discovery of the alleged lack of conformity. |