- 89 o 20/99
- Landesgericht Köln
CONFORMITY OF GOODS - LACK OF CONFORMITY - TIME OF EXAMINATION - BURDEN OF PROOF ON THE BUYER (ART. 38 CISG)
CONFORMITY OF GOODS - NOTICE OF LACK OF CONFORMITY - PRECISE SPECIFICATION OF LACK OF CONFORMITY - BURDEN OF PROOF ON THE BUYER (ART. 39(1) CISG)
NOTICE OF LACK OF CONFORMITY - TIME OF NOTICE - WITHIN A REASONABLE TIME AFTER DISCOVERY - BURDEN OF PROOF ON THE BUYER - RECIPIENT OF NOTICE (ART. 39(1) CISG)
PAYMENT OF PURCHASE PRICE (ART. 53 CISG)- NO NEED OF FORMAL REQUEST BY SELLER
A German buyer and an Italian seller concluded a contract concerning the sale of stones for facades. The contract was concluded between the buyer and a third person in Germany who acted in the name of the Italian supplier. As the buyer found that many of the stones showed various defects, it paid only part of the purchase price. The seller commenced legal action claiming the remainder of the purchase price and interest. The buyer on its part submitted to have given notice of lack of conformity to the third person in Germany, stating that the stones were not labeled according to the schedule of items and that many of the stones had not been measured or glued as agreed upon. The buyer also submitted that it had subsequently given an oral notice directly to the Italian seller concerning the lack of conformity. In addition, the buyer claimed that it was under no obligation to pay the purchase price as it had not received a final invoice.
The Court held that CISG was applicable (Art. 1 (1)(a) CISG). In the opinion of the Court the third person clearly acted in the name of the Italian seller and was to be considered a representative of the seller.
As to the merits of the case the Court held in favor of the seller and ruled that the buyer was obliged to pay the remainder of the purchase price.
The Court primarily stated that since CISG does not require any formal request for payment (as e.g. a final invoice), the purchase price was to be paid in accordance with each single individual invoice.
Regarding the alleged lack of conformity, the Court stated that it was sufficient for the buyer to give notice to the seller's representative. In order to reach this conclusion the Court applied domestic law [i.e. German law], as the matter of the recipient of the notice was considered to be a question not covered by CISG.
The Court however found that the buyer did not bring sufficient evidence that it gave a specific notice of non-conformity to the seller or its representative. At the minimum such a notice had to include the exact number of defective stones and the type of defect (Art. 39(1) CISG).
Futhermore the buyer failed to prove that it had examined the stones within the shortest period practicable under the circumstances (Art. 38(1) CISG), as the buyer did not specify at what time it discovered or could have reasonably discovered the defects.
Finally the Court held that the buyer failed to show whether the notice to the seller or its representative was given within a reasonable period of time (Art. 39(1) CISG), as it was not clear at what time the buyer received the respective goods and when notice could have been reasonably given.
To be scanned.}}
Published in: Internationales Handelsrecht 2/2001, 69-72
English translation available on Pace internet: http://www.cisg.pace.law.edu}}