|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A Portuguese seller and a French buyer concluded a contract for the sale of a stock of pressure cookers to be distributed in a French chain of supermarkets. After delivery, some of the cookers showed a defect that made their use dangerous. As a result, both the buyer and the distributor brought an action against the seller claiming, respectively, termination of contract and damages.
The first instance Court held the contract terminated and condemned the seller to pay damages. Moreover, it ordered that all items were to be withdrawn from the market. The seller appealed, putting forward that termination should have been limited to those cookers which were defective, whose identification was possible by looking at their reference number. The appellate Court confirmed the lower's Court decision. In so doing, it firstly held that CISG was applicable at the case at hand by virtue of the French conflict of law rules (namely, the 1955 Hague Convention on the law applicable to the sale of goods), which led to the application of the law of a Contracting State (i.e. France)(Art.1(1(b)CISG). With respect to the merits, the Court rejected the seller's claim. Since the number of the defective pressure cookers amounted almost to a third of the total number, the breach of contract by the seller (according to Art. 35 CISG) had to be considered fundamental under Art. 49 CISG (taking into account the kind of goods and the need of security in their use). Moreover, although the seller had alleged that the defective items had a different reference number, this did not result from the invoices, where they were referred to by the same number. Nor did the seller provide for another way to identify the defective items. Partial termination was therefore not admissible. |