Data

Date:
31-08-2010
Country:
Austria
Number:
4 Ob 98/10f
Court:
Oberster Gerichtshof
Parties:
--

Keywords

TIME-LIMIT FOR NOTICE OF LACK OF CONFORMITY - DUE CONSIDERATION OF RELEVANT CIRCUMSTANCES NEEDED (ART. 39 CISG) - NOTICE WITHIN 14 DAYS - TIMELY

PARTIALLY CONFORMING DELIVERY - TERMINATION OF CONTRACT IN ITS ENTIRETY ADMISSIBLE (ART. 51 CISG)

Abstract

[CLOUT case n. 1520; abstract prepared by Martin Adensamer, National Correspondent]

The buyer is a joiner specializing in matured timber in Austria. For a renovation of
an old palace it ordered some parquet floor, which had to be at least 100 years old
and of antique and elegant appearance, from the seller in Germany. Due to time pressure, a delivery in two instalments at an interval of 13 days was agreed. Most of the parquet floor from the first delivery had already been installed when the buyer realised that the goods partly did not meet the agreed specifications. The buyer notified this fact after seven days and asked the seller that the second delivery only included goods of the agreed quality. The quality of the second delivery, however,was even lower. On the same day the buyer gave notice that the delivery was lacking conformity and in a quite detailed way informed the seller of the nature of the defects and asked for an immediate delivery of conforming goods. The seller answered that it could not deliver such parquet floor and it would avoid the contract. Ten days later the buyer declared the contract avoided. Removal of the parquet floor which had already been installed resulted in breaking most of it. The parquet floor of the first delivery was burnt later on. The parquet floor of the second delivery was
retained.

The seller demanded the payment of the purchase price of the first shipment, alleging that the buyer had lost any warranty claims because the goods had been installed and the notification of defects was too belated. Therefore, there was no ground for an avoidance of the contract. The buyer argued that its notification of lack of conformity was effective and so was the declaration of avoidance of the contract, which was made after the seller had declared that it could not deliver the parquet floor of the agreed quality.
The court of first instance partly dismissed the claim and partly granted it in
substance. The buyer had lost the right to declare the contract avoided with respect
to the first shipment because it was impossible to return the goods in the same
condition they had been received, whereas for the second shipment the avoidance
was effective. The Court of Appeal affirmed the decision and held that the
notification of lack of conformity was timely.

The Supreme Court rejected the seller’s argument that if it is impossible to return even parts of the goods in the same conditions in which they have been received, the
contract as whole cannot be avoided, i.e. avoidance cannot be declared even in
respect of those goods which can be returned. In the view of the court, Articles 51
and 73 CISG set forth the principle that whenever the delivery consists of
independent parts, avoidance of the contract as to those independent parts is
allowed. The terms “[…]goods or part of the goods[…]” in Article 82(2)(b) and (c)
CISG support this interpretation. The court further noted that the reason to limit the
possibility to declare the contract avoided is to protect the seller and prevent any
situation in which the seller does not receive the price for the goods delivered or the
goods are not returned.

As to the time limit for notification of the lack of conformity of the goods under
Article 39(1) CISG, the Supreme Court held that the circumstances of the case need
to be considered, in particular the business and private situation of the buyer, the
nature of the goods, the volume of delivery and the kind of remedy chosen by the
buyer. Where there are no special reasons for a shorter time limit, the notification
within 14 days is sufficient. In this case the notification was also sufficiently
detailed as it made clear the extent to which the goods lacked conformity with the contract.

Fulltext

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Source

Published in original:
- Internationales Handelsrecht (IHR), 2011, 85 ff.
- available at the University of Basel website, www.globalsaleslaw.org}}