I AGa 84/18
Białystok Court of Appeal



[Clout Case 1809; Abstract prepared by Maciej Zachariasiewicz, National Correspondent]

The parties concluded a contract for the sale of oak wood. The contract provided for the delivery of a certain amount of wood on a monthly basis from Polish sellers to a German buyer. The wood was transported to a facility in Poland where it was packed in containers, sealed and then redirected to a port. It was then loaded on a ship and sent to faraway destinations (not otherwise defined by the court) to subpurchasers who purchased the wood from the buyer. The buyer did not examine the wood nor cause it to be examined. Only when the goods were received by the subpurchasers at their final destination were various defects discovered (including insufficient amount of wood and too boarding that was too short). The buyer then refused to make full payments for the wood. The sellers sued for the rest of the price in a Polish court. The court of first instance found for the sellers and ordered the buyer to pay the remaining part of the price. The buyer appealed.
The central question in the case was whether the buyer should have examined the goods while they were still in Poland, before they were dispatched to subpurchasers. The buyer contended that it was sufficient to examine the goods upon their receipt at the final destination by the sub-purchasers. The Court of Appeals disagreed. It noted that unless otherwise agreed by the parties, the goods should be examined at the place of delivery determined in accordance with Article 31 CISG. In the case at hand this was where the wood was loaded to containers (which was in Poland). The Court underlined that it would have been reasonable to examine the goods at that occasion and not wait for them to be delivered at their final destination, which was thousands of kilometers away. The buyer could have hired an agent to examine the wood or ask the goods’ carrier to do so. The Court pointed out that the alleged defects of the wood (boarding that was too short) could have been discovered upon visual, routine scrutiny before the wood was loaded to containers. In fact, the buyer never examined the goods or caused them to be examined but merely waited for the notification by the sub-purchasers. The Court found Article 38(3) CISG not to be applicable.
The Court also noted that the time limit for notifying a lack of conformity ran from the moment the lack of conformity ought to have been discovered (Article 39 CISG), which in this case was the moment when the goods were to be examined. This time must not exceed what is reasonable under the circumstances. The Court found that the notification only after the buyer learned of the defects from its sub-purchasers was not within the reasonable time pursuant to Article 39 CISG. Therefore, the buyer had lost its right to rely on a lack of conformity, including the remedies specified in Articles 46, 49, 50 and 74 CISG.




CLOUT Case no. 1809, A/CN.9/SER.C/ABSTRACTS/198

Original in Polish:
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