|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A Spanish seller and a French buyer concluded a contract for the sale of technical equipment. The goods were delivered but the buyer refused to pay the price alleging delay in delivery and non-conformity of goods. Moreover, it claimed for set-off between damages it had suffered as a result of non-performance and the price contractually agreed upon.
The first instance Court ruled in favour of the seller. The appellate Court upheld the lower Court's decision. First of all, the Court of Appeal held CISG applicable in the case at hand as both parties were situated in contracting States (Art. 1(1)(a) CISG). With respect to the alleged late delivery, the Court found that, notwithstanding the fact that the orders placed by the buyer expressly cointained the clause "urgent", the seller effected the first delivery only two months after receipt of the order (the remaining deliveries being performed within the two following months). However, the buyer neither required performance by the seller as provided by Art. 46 CISG, nor fixed an additional time for performance under Art. 47(1) CISG. Moreover, there was no evidence that the penalties for late delivery paid by the buyer in favour of the final customer were due to a delay in delivery on the part of the seller. Consequently, the Court held that the buyer had failed to provide adequate proof both as to the fact that a time for delivery had been fixed and that delivery had not been effected within that period. The appellate Court rejected also the claim concerning the lack of conformity of the goods, holding that the buyer had failed to give notice thereof within a reasonable time (Arts. 38 and 39 CISG). Even if the buyer had succeeded in demonstrating that the goods were defective and that the defects could have been identified only after a period of usage, a notice of non-conformity 13 months after the issue of the last invoice (as it was in the case at hand) could not be deemed as timely. Finally, the appellate Court confirmed the first instance decision as to calculation of interest to be paid by the buyer. Absent an express indication as to the time of accrual of interest in Art. 78 CISG, it was appropriate to calculate interest not as from the time when payment had fallen due (as put forward by the seller), but as from the time indicated in the seller's pleadings. |