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| Buyer and seller entered into a contract for the sale of organic barley.
Lacking a certificate proving the organic origins of the product, as required by European Regulations, and due to the refusal, by the Supervising Authority of the Belgian Ministry of Agriculture to qualify the barley as “organic”, the buyer could not process and sell it to the ultimate customer. The buyer commenced a legal action, alleging the lack of conformity of the goods, claiming damages for the difference between the agreed and delivered goods, and for the costs incurred on account of the substitute contract necessary to fulfill its obligation towards the final customer. The first instance tribunal decided in favour of the seller. Buyer appealed. The Court of Appeal held that, irrespective of whether the seller had performed its obligations under Arts. 30 and 34 CISG, the buyer, according to Art. 39 CISG, had lost its right to rely on the lack of conformity of the goods since it had not given notice to the seller within a reasonable time. Furthermore, the Court rejected the buyer's argument that it had To wait until the competent authority stated the non-conformity of the goods and the impossibility of further processing and reselling them, so that until it received such official statement it was excused from giving notice to the seller of the absence of the required certificate concerning the organic origin of the goods. According to the court the fact that the goods were delivered without the required certificate was in itself a case of non conformity which the buyer should have notified to the seller without having to wait for a formal declaration by the competent authority. |