Data
- Date:
- 08-12-2020
- Country:
- Japan
- Number:
- 2018(Wa)No.26853
- Court:
- Tokyo Chiho Saibansho [District Court]
- Parties:
- Nantong Jun Sen International Trading Co. v. Waymark
Keywords
PARTIAL DEROGATION OF CISG - EXPRESS DEROGATION (ART. 6)
LACK OF CONFORMITY - TIMELY NOTICE OF LACK OF CONFORMITY - CONTRACTUAL AGREEMENT FOR DIFFERENT PERIOD OF GUARANTEE (ART. 39(2)CISG)
Abstract
[Abstract prepared by prof. Yasutoshi Ishida, Himeji-Dokkyo University]
A Chinese manufacturer and exporter of apparel goods and a Japanese buyer engaged in the design, manufacturing, sale, and export of apparel goods repeatedly entered sales contracts for apparel goods. Among the goods delivered under two of these contracts, concluded in May and June 2017, some were found to be defective. Several of the buyer’s customers reported non-conformities, leading to returns or requests for price reductions, which the buyer was obligated to honor. As a result, the buyer incurred damages.
The seller sued the buyer for the unpaid price, while the buyer sought to offset this amount with damages arising from the defective goods. The seller denied liability for the damages, arguing that the notice of non-conformity was submitted too late.
Both contracts included a clause stating, “The seller is not liable for complaints regarding the quality or quantity of the products unless the buyer notifies the seller within 15 days after the goods have arrived at the port of destination.”
Citing this clause, the Tokyo District Court stated, “Article 39(1) CISG stipulates that the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. In contrast, the two contracts specify that the seller is not liable for complaints regarding the quality or quantity of the products unless the buyer notifies the seller within 15 days after the goods have arrived at the port of destination. Therefore, in this case, it is reasonable to interpret the ‘reasonable time’ referred to in Article 39(1) of the CISG as 15 days.”
Applying this criterion, the Court held, “The defendant accepted delivery of the goods before July 21, 2017 (…). However, it was not until October 27 of that year, more than three months later, that the defendant notified the plaintiff of defects in some of the delivered goods (…). Based on all the evidence, we cannot accept that the defendant notified the plaintiff of the non-conformity within 15 days of delivery. Therefore, under Article 39(1) CISG, the defendant cannot claim non-conformity for the affected goods.”
Fulltext
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Source
Original in Japanese:
- available at www.cisg-online.ch
Commented on by:
- 志馬 (Yasunori) 康紀 (Shima), 'ウィーン売買条約の日本での裁判例(5件)：日本法の事実認定論との交錯（契約の解釈）[Japan’s CISG Cases: Panorama of the five cases (2017–2023) and analysis of the “Damages of Complete Replacement” zooming in the factual findings and CISG Article 8]', 52(5) 国際商事法務 (Journal of the Japanese Institute of International Business Law) (2024年5月15日), 539–544 [– in Japanese]}}