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| Abstract | ||||||||||||||||||
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| A German buyer ordered 58 pair of shoes from an Italian seller. The day after the delivery the buyer, alleging that the shoes had been delivered late, requested by letter that either the price be reduced by 50% or the seller take back the goods. Since the buyer did not pay a part of the fixed price, the seller commenced an action to recover the full contract price.
The Court held that the contract was governed by CISG, as at the time of the conclusion of the contract the parties had their places of business in contracting States (Italy and Germany) (Art. 1(1)(a) CISG). In the Court's opinion the contract had not been avoided according to Arts. 49 and 25 CISG, as the buyer had not given notice of avoidance after delivery. According to Art. 26 CISG the buyer's notice of declaration of avoidance must represent his clear intention to avoid the contract, which in this case neither the buyer's request for a price reduction nor that the goods be taken back could represent. The Court held that the seller was entitled to the payment of the rest of the price. In addition, the Court awarded the seller interest (Art. 78 CISG) and observed that under CISG the duty to pay interest for the delay in payment for the price is not conditional upon a formal request. The interest rate was determined in accordance with the law applicable by virtue of German private international rules (Italy). |