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CISG CASE PRESENTATION

Italy 12 April 2011 District Court Reggio Emilia (Ceramic case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/110412i3.html]

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

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Case identification

DATE OF DECISION: 20110412 (12 April 2011)

JURISDICTION: Italy

TRIBUNAL: Tribunale [District Court] di Reggio Emilia

JUDGE(S): Giovanni Fanticini

CASE NUMBER/DOCKET NUMBER: N.505/2010 R.G.

CASE NAME: Fliesen Kiessling v. Serenissima Cir Industrie Ceramiche SPA

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy

BUYER'S COUNTRY: Germany

GOODS INVOLVED: Ceramic material


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39

Classification of issues using UNCITRAL classification code numbers:

1A [Internationality: Parties' places of business in different States];

38 [Time for Examining Goods];

39 [Requirement to Notify Seller of Lack of Conformity: Sanctions]

Descriptors: Examination of goods ; Lack of conformity known to seller ; Lack of conformity notice, specificity ; Lack of conformity notice, timeliness

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Italian): CISG-online.ch database <http://www.globalsaleslaw.org/content/api/cisg/display.cfm?test=2229>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Tribunal of Reggio Emilia

Fliesen Kiessling v. Serenissima Cir Industrie Ceramiche SPA

12 April 2011

Translation [*] by Maja Perpar [**]

Translation edited by Pedro Martini [***]

--   noting that Art. 38 of the CISG request the buyer to perform a timely inspection of the purchased goods: "The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination";

--   noting that Art. 39 of the CISG provides 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";

--   noting that in the present case it results from [Buyer]’s own submissions (in addition to [Seller]’s documents), that the ordered ceramic material had been delivered on 12 August 2003 and 9 September 2003 to [Buyer], which immediately (on the same dates) resold the goods to installer Henri Borner;

--   noting that [Buyer] received the complaint from Reinhold Seligmann, the final buyer of the goods, on 19 November 2003 and that the same party confirms that it has notified (verbally) the agent of [Seller] in Germany in the same month, November 2003 (in fact, the first written notification is dated 8 January 2004), two months after the last delivery;

--   considering that [Buyer] failed to comply with its obligation to inspect the goods pursuant to Art. 38: this circumstance is evident from the fact that the products that had been bought from [Seller] were resold on the same day that they were delivered;

--   considering that the aforementioned circumstance is decisive for the dies a quo of the "reasonable time" referred to in Art. 39 of the CISG: like already pointed out in several court decisions applying the CISG,[1] the buyer (especially when a professional in the field, like [Buyer] in the present case) is requested to examine the delivered goods in a short time period to allow the seller to remedy its eventual non-performances (it was determined that in case the products are resold and the defect is discovered by a third party, the reasonable time period toexamine the goods is 15 days), if the buyer fails to conduct the due examination, it loses its right to rely on the breach of the contract;

--   noting that with regard to the reasonable time period indicated in Art. 39 of the CISG the prevailing case law [2] indicates that a period of one month (or a maximum of two months under specific conditions, that are not met in the present case) from the time when the buyer could (or could and should) have examined the goods can be considered adequate;

--   noting that [Buyer] has mentioned only today the action for recovery provided for in the Consumer Code, which is outside the scope of petitum and causa petendi of the preliminary statement and therefore cannot be considered;

--   considering that for these reasons [Buyer]’s request must be rejected and that it must bear the costs of the procedure.

For these reasons:


FOOTNOTE

* All translations should be verified by cross-checking against the original text.

** Maja Perpar studied law at University of Ljubljana, was a participant at 18th and a coach at 19th Willem C. Vis Moot.

*** Pedro Martini is a Brazilian legal practitioner in the field of domestic and international commercial arbitration.

1. Netherlands - 11/2/2009 - Rechtbank [District Court] Arhem: "The tendency of article 38 CISG as well as of provisions like article 9 of the general conditions is to protect the seller against late or difficult to dispute complaints and to allow him to repair his failure to perform his obligations";

Netherlands - 16/1/2009 - Rechtbank [District Court] Breda: "Article 38 of the CISG requires a buyer to examine the goods (or cause them to be examined) within as short a period as is practicable in the circumstances. Furthermore, article 39 CISG stipulates that a 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 discovered it or ought to have discovered it. The notice period starts at the moment on which the buyer discovered or should have discovered the non-conformity";

Germany - 19/5/2008 - Appellate Court Köln: "...this Court confirms the legal reasoning enunciated by the District Court (denying a claim for damages on the part of [Buyer] on the grounds of a breach of duty to examine and notify under Arts. 38, 39 CISG). It is undisputed that the goods have been delivered in February 2006 and, according to [Seller's] submissions, complaints have been raised on 28 July 2006 for the first time";

Switzerland - 18/8/2008 - Obergericht [Appellate Court] Appenzell Ausserhoden: "In case the buyer passes goods on to his customers and if it is their customers who discover defects, then an examination period of two weeks and a notification period of four weeks is reasonable under the CISG";

Belgium - 11/6/2008 - Appellate Court Ghent (NV Brux-Attout v. SA Chrismatex): "The buyer has the obligation to examine the goods within a period as short as practicable in the circumstances (Art. 38(1) CISG). The buyer has the obligation to give notice to the seller of the lack of conformity; if he does not do so, the buyer loses the right to rely on this lack of conformity (Art. 39(1) CISG). The buyer has not complied with its obligations in Art. 38(1) and 39(1) CISG and thus loses its right to rely on the alleged lack of conformity".

2. Germany - 15/10/2009 - District Court Stuttgart: "It is disputed how to measure the ‘reasonable time’ regarding the defect determined under Art. 39 CISG, however, according to jurisprudence and the leading doctrine, the gross average is approximately one month (cf. Schlechtriem/ Schwenzer, op. cit., No. 17, with firther references). In any case, an almost three-month period between discovering and giving notice [of a defect], as is the case here, does not meet the requirements set out in Art. 39 (1) CISG";

Switzerland - 18/5/2009 - Bundesgericht [Federal Supreme Court]: "In general, a period of one to two months will be necessary and reasonable for the buyer to sufficiently examine the situation, unless there is a special case which would objectively justify either an extended or a reduced period (cf. Brunner, Art. 49 para 12; Müller-Chen, in Schlechtriem/ Schwenzer, Art. 49 para 32 and footnote 114)";

Austria - 2/4/2009 - Supreme Court: "A period of fourteen days would be reasonable in order to examine the goods and give notice due to lack of special circumstances";

Germany - 2/4/2009 - Appellate Court Hamm: "A notice of non-conformity must be sufficiently specific so as to enable the seller to form an idea about the defect and to take the necessary steps. A notice of non-conformity given six weeks after the discovery of the defect is not reasonable in the sense of Art. 39 CISG".

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Pace Law School Institute of International Commercial Law - Last updated July 11, 2012
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