Serbia 12 July 1994 Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of
Commerce (Baby beef hide case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940712sb.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: T-3/92
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Yugoslavia / Serbia (claimant)
BUYER'S COUNTRY: Germany (respondent)
GOODS INVOLVED: Wet-salted baby beef hides of Yugoslav origin
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
38A [Buyer's obligation to examine goods: time for examining goods]; 39A2 [Requirement to notify seller of lack of conformity: buyer must notify
seller within reasonable time]
38A [Buyer's obligation to examine goods: time for examining goods];
39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Serbian): Click here for excerpt of Serbian text [published in the Collection of the 1997 FTCA awards (Zbornik arbitrazne prakse Spoljnotrgovinske arbitraze, Beograd 1997), pp. 80-81]
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Award of 12 July 1994 [Proceedings No. T-3/92]
Translation [*] by Marko Jovanovic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]
A period of over twenty days is beyond a reasonable time-limit for giving notice of non-conformity of the goods.
SUMMARY OF FACTS
[Seller] submitted that he concluded a contract with [Buyer], on the basis of which he sold to [Buyer] the goods specified in the contract. Acting in conformity with contractual provisions, [Seller] delivered the goods to [Buyer] and sent him invoices that [Buyer] never paid. [Seller] requested that the Arbitration Court order the [Buyer] to pay the price for the delivered goods.
[Buyer] rejected the claim and submitted that [Seller] never delivered the goods in conformity with the contract. Additionally, [Buyer] asserted that he sent [Seller] a notice of non-conformity specifying the deficiencies regarding the quality of the goods.
[Seller] replied that the notice of non-conformity was not sent in due time.
REASONS FOR THE DECISION (EXCERPT)
The issue of conformity of the goods to contractual requirements is governed by the contract itself and by Articles 38 and 39 of the UN Convention on Contracts for the International Sale of Goods.
According to the contract, the delivery of the goods of agreed quality and quantity was to be taken in the warehouse of [Seller] in Yugoslavia and the authorized representatives of [Buyer] were to issue a certificate thereof, without the right to subsequent objections. Pursuant to the "Delivered at Frontier" clause, the risk passes to [Buyer] at the moment when the goods pass the Yugoslav-Hungarian border. Pursuant to Article 38 of the CISG, the buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. Finally, pursuant to Article 39(1) of the CISG, 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 the case at hand, the authorized representative of [Buyer] issued a certificate of conformity of the goods on 18 October 1991. The goods were loaded on six trucks and passed the Yugoslav-Hungarian border between 4 and 8 November 1991, but the first complaint to the quality was sent by telex on 30 November 1991. The buyer must examine the goods within as short a period as practicable and 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. The relevant time-limit for examining the conformity of the goods is the moment of passing of the risk. [Seller] will be liable for the lack of conformity which has occurred after the abovementioned time-limit only if the cause of such non-conformity already existed before the passing of the risk. Otherwise, [Seller] will not be liable (Article 66 of the CISG). Passing of the risk concerning the last shipment took place on 8 November 1991. The Arbitral Tribunal considers that a period of over twenty days is not a reasonable time-limit for giving notice of non-conformity of the goods. The deficiencies of the goods invoked by [Buyer] were not hidden but apparent. [Buyer] ought to have given notice of such lack of conformity "without delay". The rules on short time-limits are dictated by the trade needs and established in order to eliminate uncertainty. Duty of cooperation between the seller and the buyer stems from the principle of diligence and good faith and from trade usages. Bearing in mind all the aforementioned arguments, the Arbitral Tribunal considers that, even if the goods were not conforming, [Buyer] lost his right to rely on a lack of conformity, as he failed to give notice thereof within a reasonable period of time (Article 39 of the CISG). Such opinion is further supported by the fact that [Buyer] failed to prove that he had a reasonable excuse for not giving the required notice in due time (Article 44 of the CISG).
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of Yugoslavia/Serbia is referred to as [Seller] and Respondent of Germany is referred to as [Buyer].
** Marko Jovanovic, LL.M. (U. of Belgrade) is a Doctorate student at the University of Paris 1 - Panthéon Sorbonne and at the University of Belgrade. Dr. Vladimir Pavic is an Assistant Professor in Private International Law and Arbitration, and Milena Djordjevic, LL.M. (U. of Pittsburgh) is a Lecturer in International Commercial Law at the University of Belgrade Faculty of Law.Go to Case Table of Contents