Switzerland 28 October 1997 Appellate Court Valais (Second hand bulldozer case)
[Cite as: http://cisgw3.law.pace.edu/cases/971028s1.html]
DATE OF DECISIONS:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: C1 97 167
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Switzerland (defendant)
GOODS INVOLVED: Second hand bulldozer
SWITZERLAND: Tribunal Cantonal Valais 28 October 1997
Case law on UNCITRAL texts (CLOUT) abstract no. 219
Reproduced with permission from UNCITRAL
An Italian plaintiff sold a bulldozer to a Swiss defendant, who did not pay two remaining instalments because of an alleged late delivery and a lack of conformity. The court granted the [seller's] claim for payment of the two instalments.
The court found the delivery, made within not more than two weeks after the seller had received the first instalment by handing over the machine to the carrier, to be in time as no date had been fixed by the parties (article 33(a) CISG). In addition, the court found the buyer's claim of non conformity not to be legitimate. The buyer had tested the bulldozer and the court deduced from article 36 CISG and the principle of good faith, the presumption that a person who buys goods in spite of obvious defects intended to accept the seller's offer. Furthermore, the buyer had not given notice of the alleged lack of conformity (article 39 CISG). The interest rate was determined in application of the forum's rules of private international law, which led to Italian law (article 1024 Codice Civile).
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issues:
Classification of issues using UNCITRAL classification code numbers:
7C22 [Recourse to general principles on which Convention is based: principle of good faith applied];
33C [Time for delivery: reasonable time set by court where parties had not fixed the date];
35C [Exception to seller's liability for non-conformity: goods which had been tested by buyer and purchased in spite of obvious defects];
39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];
78B [Interest on delay in receiving price: rate of interest (determined by applying forum's rules of private international law)]
Descriptors:
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=311&step=Abstract>
German: 1 Schweizerische Zeitschrift für Internationales und Europäisches Recht (1998) 77-78; [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 11
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/328.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=311&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: Honnold, Uniform Law for International Sales (1999) 279 [Art. 39(1) (specificity of notice)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 4-8 n.103; Liu Chengwei, Recovery of interest (November 2003) n.271; René Henschel, Conformity of Goods in International Sales Governed by CISG, pdf access at Nordic Journal of Commercial Law, Issue 2004 #1 <http://www.njcl.utu.fi> p. 11; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.548, 607; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 27; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 35; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 286; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 275
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