I AGa 123/18
Szczecin Court of Appeal




[CLOUT Case no. 1979; abstract prepared by Maciej Zachariasiewicz, National Correspondent and Aleksandra Pilipiuk]

A contract for sale of thermal paper was concluded on 21 November 2014 between A, a company with place of business in Poland (the seller) and B, a company with place of business in Lithuania (the buyer), for an agreed price of EUR 26,445.44. On 19 November 2013, the buyer paid EUR 16,445.44 on the basis of a proforma VAT invoice. The buyer was to pay the remaining amount within 30 days from the date of sale, which took place, in accordance with the terms of delivery, when the seller made the goods available at its warehouse. By letter of 8 January 2014, the seller requested the buyer to pay the remaining part of the price but the buyer failed to comply. The seller sued the buyer for the recovery of the outstanding balance and statutory interest in front of the District Court of Szczecin.

In front of the District Court, the buyer objected that the paper received was of poor quality, which made it not suitable for the intended use. Due to the defects of the delivered goods, which had been further processed and resold, the buyer alleged to have suffered losses in the total amount of EUR 30,979.90 and asked for compensation or, alternatively, set-off against the claim of the buyer.
By a judgment of 12 December 2017, the District Court in Szczecin awarded to the seller EUR 10,000 plus the statutory interest. The buyer filed appeal at the Court of Appeal in Szczecin.

The Court of Appeal (the Court) confirmed that the CISG applied under its article 1(1)(a) as both parties had place of business in countries parties to the Convention. The Court also found that the seller had provided sufficient evidence that the sales contract had been concluded and the goods had been delivered under the contract.

With respect to the counterclaim of the buyer for compensation of damages arising from non-conformity of the goods, the Court found that, if the buyer had inspected the goods in accordance with article 38 CISG, it could have detected possible defects in the quality of the paper when the paper was delivered before it was further processed and resold. However, the buyer did not notify the seller about the non-compliance within a reasonable time from the moment when the defects could have been discovered. The Court reminded that this, in accordance with article 39 CISG, resulted in the loss of the right to plead non-conformity of the goods.

More precisely, the Court noted that the buyer learned of the non-conformity of the goods on 10 January 2014, when its contracting party complained about the lack of quality of the final product. In the opinion of the Court, the notice of non-conformity sent to the seller on 11 April 2014 (i.e., 3 months after learning of the alleged non-conformity) could not be considered as made within a reasonable time within the meaning of article 39 CISG. The Court also noted that the buyer did not prove any circumstance that would allow to evade the effects of the expiry of the period in accordance with article 44 CISG. As a result, the Court concluded that the buyer had lost the right to rely on the non-compliance of the goods with the contract and, consequently, to claim damages (articles 45 and 74 CISG) or to have the price reduced (article 50 CISG).
Moreover, the Court, taking into account articles 8 and 9 CISG, noted that the contract was for the goods of “defective quality” (“stock lot sale”), which had a lower price. Furthermore, the Court stressed that given such quality of the goods the seller had made clear with every invoice sent to the buyer that it took no liability for the defects of the goods. Still, the buyer kept on ordering goods from the seller. Thus, the Court concluded that the buyer must be deemed to have known of the exclusion of the liability.
The Court also noted the correspondence between the parties concerning a possibility of deferred payment, in which the seller had agreed to delivery of the goods without “a chance for a complaint [about their quality]”, given that the goods were sold “stock lot”. Thus, it was clear that the buyer was aware of the meaning of the term “stock lot”.
The buyer, in turn, has not produced any evidence, indicating that it did not accept the exclusion of liability. The exclusion of liability thus constituted yet another reason to dismiss the buyer’s appeal.




CLOUT Case no. 1979, A/CN.9/SER.C/ABSTRACTS/215.}}