Data
- Date:
- 30-11-1998
- Country:
- Switzerland
- Number:
- HG 930634
- Court:
- Handelsgericht des Kantons Zürich
- Parties:
- --
Keywords
APPLICATION OF CISG – RULES OF PRIVATE INTERNATIONAL LAW REFERRING TO LAW OF A CONTRACTING STATE (ART. 1(1)(b) CISG)
AGENCY - MATTER NOT EXPRESSLY SETTLED BY THE CONVENTION (ART. 4) - DOMESTIC LAW APPLICABLE
BURDEN OF PROOF OF LACK OF CONFORMITY - MATTER GOVERNED BUT NOT EXPRESSLY SETTLED BY CISG (ARTS. 4, 7(2) CISG)
LACK OF CONFORMITY OF GOODS (ART.35) - BURDEN OF PROOF - ALLOCATED BETWEEN SELLER AND BUYER
INTEREST (ART. 78 CISG) - RATE OF INTEREST - DETERMINED BY DOMESTIC LAW OTHERWISE APPLICABLE
Abstract
A Swiss seller sold lambskin coats to a Liechtenstein buyer. The lambskin coats, which the seller had bought from a Macedonian intermediary trader, were delivered to Belarus in instalments between the end of 1992 and the beginning of 1993. After delivery, the buyer notified the seller that the goods were defective. The buyer then demanded termination of contract and the reimbursement of the payments already made; the seller, on its part, asked for the remainder of the agreed price.
As to the applicable law, the Court found that the Convention could not applied under Art. 1(1)(a) as Liechtenstein is not a Contracting State. However, under the Swiss rules of private international law, in conjunction with Art. 3(1) of the 1955 Hague Convention on the Law Applicable to International Sales of Goods, the Court found that the contract was governed by the law of the State of the seller’s habitual residence, i.e., Swiss law. As a result, CISG was applicable as a part of Swiss law (Art. 1(1)(b) CISG).
The Court characterized the sales agreement as a contract for the supply of goods by instalments and held that, even though the deliveries were for different items (lambskin coats for men and coats for women), Art. 73 CISG could apply.
Further, the Court addressed the issue of whether the buyer had validly notified the lack of conformity by addressing it to another company, which allegedly acted as seller’s agent. After establishing that such an issue was for the otherwise applicable law to be answered (i.e., Swiss law), the Court determined that the buyer’s notice was valid, as the seller had to be considered aware of anything of which its agent was notified.
In addition, the Court discussed the issue of the burden of proof concerning conformity of the goods. In this regard, the Court noted that that issue is not expressly resolved by the Convention (art. 4 CISG); yet certain general principles may be inferred from it. More specifically, as liability for the defect of goods is a critical aspect of the seller’s obligations under the contract, it is incumbent upon the seller to prove the absence of defects at the time of passing of risk. As to the buyer, this latter must prove that it had examined the goods and given notice of any lack of conformity in due time; however, after having accepted the goods without giving notice of non-conformity, the burden of proof for the existence of any defects at the time of passing the risk shifts to it.
The Court then found that the buyer had failed to comply with its obligation to give notice of the lack of conformity within a reasonable time with regard to all the delivered instalments (Art. 39(1) CISG).
Moreover, the Court rejected the buyer’s argument that the seller was aware of the lack of conformity and had not disclosed it to the buyer, since the latter could not provide adequate proof. Nor did the buyer submit any evidence supporting the conclusion that its failure to notify the defects within a reasonable time was excusable under Art. 44 CISG.
Besides, the Court found that, even though the seller may deliberately waive its right to rely on the buyer’s failure to give timely notification about the lack of conformity, this had not happened in the present case. In fact, the seller’s checking of the defects after the period for notification has expired cannot amount to an implicit waiver of its rights to rely on a late notice. Nor could the fact that the seller had invoked late notification after having examined the goods be considered contrary to the principle of good faith as reflected in the Convention.
Conclusively, the Court declared that the seller was entitled to full payment plus interest (Art. 78 CISG), calculated at the interest rate determined according to Swiss national law.
Fulltext
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Source
Original in German and English Translation:
- available at www.cisg-online.org}}