Data

Date:
16-02-2012
Country:
Spain
Number:
No. 70/2012
Court:
Las Palmas de Gran Canaria Provincial High Court
Parties:
--

Keywords

FAILURE TO INSPECT THE GOODS AS SOON AS PRACTICABLE UNDER THE CIRCUMSTANCES (ART. 38 CISG) AND TO GIVE TIMELY NOTICE OF NON-CONFORMITY (ART. 39 CISG) - BUYER'S CLAIM DISMISSED

Abstract

[CLOUT Case no. 1345. Abstract prepared by María del Pilar Perales Viscasillas, National Correspondent]

A contract was concluded between the parties on the purchase and sale of margarine for making croissants and puff pastry. There was no dispute as to the fact that it was governed by the United Nations Convention on the International Sale of Goods of 1980. The court of first instance ordered the buyer to pay the price, plus legal interest. The buyer appealed, on the grounds that the goods were not of the quality contracted for. The seller, for its part, claimed the price agreed under the contract and outstanding interest, in accordance with Act No. 3/2004 on late payment in commercial transactions between companies.

The Provincial High Court considered the issue of a fundamental breach (pursuant to CISG art. 25), but decided that there was insufficient evidence of this. It also considered the question of the claim of the goods’ lack of conformity, although, since it considered the notification period laid down by the court of first instance to be valid and not open to appeal, it could not overturn the lower court’s judgement on that point. However, the Court found that the goods had arrived in poor condition, the buyer having complained of defects five months after it had received them. In that connection, the Court held that, since margarine was undoubtedly a perishable product, the buyer had an obligation, under the Convention, to examine it as quickly as possible and, where appropriate, to complain of defects within a reasonable period of time. In the present case, the buyer had not undertaken such an examination nor lodged a complaint within a reasonable time, which should be measured in days or, at most, a number of weeks, but should never extend over a period of five months, which was the length of time that it had taken it to send a written communication clearly indicating the nature of the lack of conformity. It was important for reasons of legal protection that a reasonable period should be fixed, since trade relations ought not to be maintained in a state of uncertainty that left them open to question and delay for long periods, causing serious harm to economic operators. The time limit of two years referred to in CISG article 39 (2) should not call into question longer or shorter time limits, when the regulations were applicable to all kinds of goods, with the exception of the circumstances set out in CISG article 2, and thus covered goods ranging from simple, perishable goods to durable and complex goods that could require longer time limits, as in the case of complex equipment, for example. That did not, the court continued, preclude the need in specific circumstances to assess whether a claim was made within a reasonable time or not, with a view to ensuring that contractual relations were not terminated and that the passage of time did not introduce elements that might skew any possible claim. Thus, in the present case, the passage of time had raised doubts as to the moment at which the damage to the goods might have occurred, in view of their perishable nature and the care with which they should be treated and stored at all times. Failure to do so could have caused them damage.

The Court also held that a party could not cite the provisions of the Commercial Code, or the case law interpreting it, since it was clear that CISG took precedence, its primacy reflecting the principle of the inviolability of treaties, as was frequently asserted by the case law and as stated in the second sentence of article 96, paragraph 1, of the Spanish Constitution; such a domestic law could be cited only with regard to questions not expressly settled by the Convention (CISG art. 7 (2)). Allowing a long deadline, with a two-year limit in circumstances such as those in the current case, could, in addition to the problems described above, leave it to the discretion of one or other of the parties to fulfil a contract, although that was prohibited under article 1256 of the Civil Code, because the goods were fully in its power and there was no possibility for the other party to take action.

Fulltext

Original in Spanish:
- available at www.cisgspanish.com}}

Source

Case Law on UNCITRAL Texts, A/CN.9/SER.C/ABSTRACTS/142}}