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CISG CASE PRESENTATION

Canada 1 May 2001 Superior Court of Justice, Ontario (Dunn Paving Ltd. v. Aerco Trading Inc.)
[Cite as: http://cisgw3.law.pace.edu/cases/010501c4.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20010501 (1 May 2001)

JURISDICTION: Canada

TRIBUNAL: Superior Court of Justice, Ontario

JUDGE(S): Rogin J.

CASE NUMBER/DOCKET NUMBER: 97-GD-41013

CASE NAME: Dunn Paving Ltd. v. Aerco Trading Inc.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Canada (plaintiff)

BUYER'S COUNTRY: United States (defendant)

GOODS INVOLVED: Scrap metal


Case abstract

CANADA: Ontario Superior Court of Justice 1 May 2001 (Dunn Paving Ltd. v. Aerco Trading Inc.)

Case law on UNCITRAL texts (CLOUT) abstract no. 531

Reproduced with permission from UNCITRAL

Abstract prepared by Geneviève Saumier, National Correspondent

The buyer, located in Michigan, contracted to buy scrap metal from the seller's recycling operation in Ontario. The scrap delivered was often contaminated by sand and this led to numerous price adjustments over a two-year period. In a dispute over monies owed, the buyer counterclaimed regarding the adjustments, arguing that the contract was a sale by sample governed by the domestic Sale of Goods Act. The seller argued that it was an international sale governed by the International Sale of Goods Act and thus the CISG.

The Court rejected the characterization of the transaction as a sale by sample, without deciding on the applicable law, and stating that "the acts are not dissimilar when they speak of sale by sample". Even if the sale had been by sample, the Court found that the buyer had had sufficient opportunity to inspect the goods and reject any that did not conform; moreover, the buyer had accepted the adjustment method for a long period and could not now claim to repudiate it. The buyer was ordered to pay the outstanding amounts owed on the contract.

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Classification of issues present

APPLICATION OF CISG: Seller pleaded the CISG; buyer pleaded the Sale of Goods Act. The court did not rule on which governing law applies.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 35

Classification of issues using UNCITRAL classification code numbers:

35A ; 35B3 [Conformity of the goods: quality quantity and description required by contract; Requirements implied by law: quality of goods held out as sample or model]

Descriptors: Conformity of goods

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (English): CISG Canada database <http://www.yorku.ca/osgoode/cisg/DunnPavingv.AercoTrading.htm>; see also [2001] Ontario Judgments no. 1736 (Lexis)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated February 16, 2006
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