- 2R 62/02h
- Oberlandesgericht Graz
PRESERVATION OF THE GOODS - SELLER'S RIGHT TO SELL THE GOODS (ART. 88 CISG) - PROPER NOTICE OF INTENTION TO SELL THE GOODS TO THE OTHER PARTY REQUIRED
[CLOUT Case no.540: abstract prepared by Martin Adensamer, National Correspondent]
A German buyer purchased garments from an Austrian seller, but did not take delivery of the goods. After requesting the buyer by fax and telephone to take possession, the seller sold the goods to other buyers at a significantly lower price and sued the first buyer to recover the difference between the original agreed price and the actual price the seller had received.
The Court of Appeal found that, as the buyer was in unreasonable delay in taking possession of the goods, the seller was entitled under Art. 88 CISG to sell the goods elsewhere. The Court found that the seller had complied with his duty to give proper notice to the buyer of its intention to sell the goods by fax and telephone. The Court also found that the fourteen days term indicated by the seller to the buyer to take possession of the goods was reasonable within the meaning of Art. 88 CISG. Finally, the Court stated that the fact that the fax, although sent to the correct number, might have failed to actually reach the buyer did not deprive the seller of the right to rely on the communication under Art. 27 CISG.
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Abstract: CLOUT Case no. 540, in A/CN.9/SER.C/ABSTRACTS/47}}