- No. 11/08248
- Cour d'appel de Douai
- Getec v. Bystronic
BUYER’S RIGHT OF TERMINATION OF CONTRACT – NOTICE OF TERMINATION – WITHIN A REASONABLE TIME (ART. 49(2)(B) CISG) - TWO-YEAR PERIOD AFTER DISCOVERY OF DEFECTS - REASONABLE
BUYER'S RIGHT TO TERMINATION - IMPAIRED IF AFTER MANY YEARS OF USE IT CANNOT MAKE RESTITUTION OF THE GOODS SUBSTANTIALLY IN THE SAME CONDITION IT HAD RECEIVED THEM
A French company ordered two press breaks from a Swiss seller. A dispute arose between the parties as, during their use, the goods showed some defects. After an attempt to settle the dispute amicably had failed, the buyer filed a claim against the seller seeking to obtain, inter alia, termination of contract. On its part, the seller asked for damages.
By confirming the first instance decision, the Court of Appeal ruled in favor of the seller, but the decision was partially quashed by the Supreme Court which remanded the case to the lower Court for further action (see Cour de Cassation, 08.11.2011, in UNILEX).
In reviewing the case, the Court of Appeal came to the conclusion that the period of time in which termination had been declared was reasonable. After noting that according to case law a two-year period is considered of a reasonably length, it noted that, in the present case, the lapse of thirteen months before the buyer had notified the seller of its intention to bring the contract to an end was to be treated as reasonable under Art. 49(2)(b) CISG. Due consideration was to be paid indeed to the buyer’s legitimate attempt to preserve the contract and the usefulness of the machinery for continuing its business activity.
However, the Court denied that the buyer was entitled to terminate the contract as, after many years of use, it could make restitution of the goods substantially in the same condition in which it had received them (Art. 82 CISG).
Original in French:
-available at CISG France website, http://www.cisg.fr/}}