- Cour d'appel Bordeaux
LACK OF CONFORMITY OF GOODS – GOODS UNFIT FOR THEIR USE (ART. 35(1)(B) CISG) - SELLER’S KNOWLEDGE OF LACK OF CONFORMITY (ART. 40 CISG)
An Italian manufacturer and French buyer concluded a contract concerning tile coverings. The French buyer resold the goods to private individuals. A dispute arose between the parties when the goods were found to be defective and the final customers sued the French company for damages.
The Court of Appeal of Bordeaux held that CISG was applicable to the case at hand, as both parties had their places of business in different contracting States (Art. 1(1)(a) CISG).
As to the merits, the Court, after recalling that Art. 35 of the Convention requires the seller to deliver goods which are in conformity with the contract, pointed out that, according to the expert’s report, in the case at hand the goods were not fit for the normal use for which such goods were intended, as the enamel coating of the tiles was not sufficiently thick.
Nonetheless, even if the buyer had given notice of the defects more than two years after delivery, it had not lost its rights to rely on a lack of conformity (Art. 39). In reaching such a conclusion, the Court considered that, although the contract provided for laboratory testing to be provided by the seller prior to delivery, this latter had refused to furnish the court expert with the test results and had not provided any explanation of its failure to do so. This conduct by the seller lead the Court to believe that tests and trials were unfavorable to the seller and that, for such a reason, the seller had not disclosed them to the buyer. The Court then concluded that the requirements for application of Art. 40 CISG were met, as the seller could not been unaware of the alleged lack of conformity at the time of delivery.
Original in French:
- available at the CISG-France website, www.cisg-france.org}}