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Date: 07.07.2004 Country: Switzerland Number: 4C.144/2004 Court: Schweizerisches Bundesgericht Parties: - Citation: http://www.unilex.info/case.cfm?id=991

PARTIAL DELIVERY – TO BE CONSIDERED AS NON-CONFORMING DELIVERY – BUYER’S OBLIGATION TO EXAMINE GOODS AS SOON AS POSSIBLE UNDER CIRCUMSTANCES (ART. 38 (1) CISG) – BUYER’S OBLIGATION TO GIVE NOTICE WITHIN REASONABLE TIME (ART. 39 (1) CISG) – THREE DAYS AFTER DELIVERY TIMELY UNDER CIRCUMSTANCES BURDEN OF PROOF OF NON-CONFORMITY – RISK PASSES UPON DELIVERY WITHOUT OBJECTION ON PART OF BUYER (ART. 36 CISG) BURDEN OF PROOF OF NON-CONFORMITY – MATTER GOVERNED BUT NOT EXPRESSLY SETTLED BY CISG – TO BE SOLVED BY APPLYING GENERAL PRINCIPLE UNDERLYING CISG (ART. 7 (2) CISG) – BUYER HAS TO PROVE FACTS ON WHICH EXERCISE OF OWN RIGHTS IS BASED SCOPE OF CISG – CLAIM FOR UNJUST ENRICHMENT – SET-OFF – MATTERS EXCLUDED FROM CISG (ART. 4 CISG) – DOMESTIC LAW APPLICABLE