- 8 O 57/01
- Oberlandesgericht Frankfurt am Main
LACK OF CONFORMITY OF GOODS - SUSPICION OF NON-CONFORMITY BECOMING APPARENT AFTER PASSING OF THE RISK (ART. 36(1) CISG)
LACK OF CONFORMITY - PUBLIC LAW REQUIREMENTS IN BUYER'S COUNTRY - SELLER LIABLE IF THE SALE IS ALSO PREVENTED IN ITS OWN COUNTRY UNDER EU RULES
A Belgian seller and a German buyer concluded a contract for the sale of pork to be resold to the buyer's final customers. Shortly after delivery, the pork was suspected of having been contaminated with dioxin. As a result, the German government ruled that the purchase of pork from Belgium would have been possible only if the Belgian seller had certified the pork as being non-contaminated. Concomitantly, the EU required the absence of dioxin to be certified in the whole EU. Since the seller had not complied with this requirement, the pork was seized by the German authorities.
As the buyer refused to pay the purchase price, the seller brought an action to recover it. The first instance Court dismissed the claim and the appellate Court upheld the lower Court's decision.
After stating that CISG was applicable in the case at hand pursuant to Art. 1(1)(a) CISG, the Court held that the pork was non-conforming (Art. 35 CISG). In reaching this conclusion the Court found that although the suspicion of contamination had become apparent only after the risk had passed to the buyer (Art. 36(1) CISG), it amounted nonetheless to a lack of conformity as the facts which had given rise to suspicion already existed when the risk passed to the buyer.
Moreover, the Court rejected the buyer's argument that it was not liable if goods failed to meet the public law requirements of the buyer's country. Without further specification, the Court held that the seizure was determined by non-conformity, and that the lack of certification that the goods were not contaminated would prevent the sale also in the seller's country by virtue of EU rules. Therefore the buyer was liable under CISG.
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Original text in German available at the University of Basel website, http://www.cisg-online.ch}}
Published in German:
- available at the University of Basel website, http://www.cisg-online.ch}}