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| A Spanish seller and a US buyer concluded a contract for the sale of frozen chicken to be delivered in Ukraine. Before the conclusion of the contract the buyer inspected the seller's farm and approved the quality and features of the sample.
As the goods failed to meet the requirements of Ukrainian law they could not be placed on the local market and the buyer therefore commenced an action agaist the seller alleging lack of conformity. The Spanish first instance Court rejected the claim on the ground of lack of proof of non–conformity of the goods. The Appellate Court declared that the contract was governed by CISG, as the parties had their places of business in contracting States, and confirmed the first instance decision in favor of the seller, in application of Art. 35 CISG. It held that the mere circumstance that the goods failed to meet the specific law requirements of the country in which they would be marketed did not automatically mean that they should be deemed unfit for ordinary use according to Art. 35(2)(a) CISG if they complied with the law requirements of their country of origin, if the buyer had not specifically mentioned this necessity to the seller and, especially, if the buyer had examined and approved a sample of the same goods beforehand. As to the alleged inadequate transportation conditions the Court stated that since the carrier, having taken charge of the goods, had declared that they were in proper condition and since the buyer had delayed the goods' inspection to 4-5 days after arrival, the buyer was responsible of any consequent deterioration. |