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| Abstract | ||||||||||||||||||
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| A French company, specialized in delivery of construction material, and a Swiss construction company had entered into a contract for the sale of a certain quantity of resins. The buyer did not pay the price. A dispute arose between the same parties when a machinery, which the seller had given to the buyer in order to explain its usage, accidentally broke up. The seller brought an action before the Cantonal Court claiming payment of the price for sale of the resin including the expenses for the fixing of the machinery.
The Court ruled in favor of the seller. Subsequently, the buyer appealed contesting that the seller had not delivered the resin and as regards the machinery, that it was not under its control when the accident occurred. The Court of Second Instance rejected the appeal and confirmed the decision of the Cantonal Court. The buyer brought a suit before the Federal Court claiming a violation of Swiss Federal Law. As to the applicable law to the contract of sale, the Court held that the contract was governed by CISG in accordance with Art 1(a) CISG. The Court examined the matter of the burden of proof on the alleged non-performance of the seller as regards the contract of sale. The Court held that the burden of proof is a matter governed but not expressly settled by CISG, which has to be settled in conformity with CISG and not with domestic law. The Court upheld a general principle which states that it is up to the plaintiff to prove the fact of the failure to perform as such. Therefore, it was up to the buyer to prove the seller’s non-performance, which it did not prove. The buyer was thus obliged to pay (Art. 52(a) CISG) and the seller entitled to seek payment under Art.62 CISG. The Court finally found that as regards the machinery, the parties had concluded a loan for use agreement and granted the seller also reibursement of the expenses incurred in fixing the machinery under the applicable domestic law (Swiss Law). |