A German seller and a Swiss buyer entered into a contract for the sale of a chemical product, described as menthol of a certain brand in "big crystals". A dispute arose between the parties when the buyer asserted the non-conformity of the goods delivered by the seller because the crystals did not conform to contract specifications (they were allegedly too small). The seller brought an action before the Court of First Instance claiming payment of the goods. The Court of First Instance ruled the case in favor of the seller. The buyer appealed to the Federal Court.
The Court confirmed the application of CISG and found that Art. 35 CISG enbodies a general notion of non-conformity which would in principle encompass the alleged defect of the sold goods.
The Court held, however, that the buyer has the burden of proving the non-conformity after acceptance of delivery of the goods. In particular, referring both to Swiss law on contract interpretation and to scholarly opinions on CISG, the Court ruled that the buyer, in the case at hand, had failed to prove that the goods were meant for a specific use made known to the seller and for which crystals of a certain size were required. |