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CISG CASE PRESENTATION

ICC Arbitration Case No. 9083 of August 1999 (Books case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/999083i1.html]

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

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Case identification

DATE OF DECISION: 19990800 (August 1999)

JURISDICTION: Arbitration ; ICC

TRIBUNAL: Court of Arbitration of the International Chamber of Commerce

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 9083 of August 1999

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Unavailable (claimant)

BUYER'S COUNTRY: Unavailable (respondent)

GOODS INVOLVED: Books


UNCITRAL case abstract

ICC Arbitration Case No. 9083 of August 1999

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/110],
CLOUT abstract no. 1086

Reproduced with permission of UNCITRAL

Abstract prepared by Jean-Pierre Michaelle

The claimant (the seller) entered into contract with the respondent (the buyer) to print and supply books to be resold to supermarkets and cut-price bookshops. The seller delivered the books in four instalments. About thirty-three days after the fourth instalment the buyer informed the seller that it would not pay, alleging discrepancies between the quantities delivered and those agreed upon and delay in the delivery of the books and the restitution of the films used for printing. The buyer argued that it was contractually entitled to compensation from the seller, which should be used to offset against the seller's claim. The seller brought suit before the Arbitral Tribunal sitting in Vienna, which determined that Austrian law was to be applied in accordance with the printing contract.

The Tribunal held the CISG applicable to the dispute as the parties had chosen Austrian law to govern the contract and the CISG is part of Austria's legal system. The printing contract was considered a sales contract as it related to goods to be produced and delivered by the seller (Article 3).

On the substance of the dispute, the tribunal noted that pursuant to Article 38 CISG, the buyer has a duty to examine the goods, or cause them to be examined within as short a time as practicable under the circumstances. Pursuant to Article 39 CISG, the buyer also has a duty to provide notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered or ought to have discovered the defect. Under the circumstance, the tribunal held that the buyer did not comply with either Articles 38 or 39 CISG nor did it offer any evidence to establish a reasonable excuse pursuant to Article 44. Thus the buyer was not able to avail himself of the remedies of article 45 CISG. The tribunal commented on the Supreme Court of Austria's decision that fourteen days is a reasonable time for an overall inspection and complaint when there are no special circumstances in support of a reduction or extension. In this case, the buyer did not notify the seller of the discrepancies in quantity until 3 July 1995, more than a month after the last instalment, 31 May 1995. No special circumstances or reasonable excuses were alleged by the buyer.

The Tribunal also considered whether the buyer could benefit from article 40 CISG, which prevents the seller from relying on Articles 38 and 39 where the lack of conformity relates to facts of which the seller knew or could not have been unaware and did not disclose to the buyer. Here, for the two deliveries of March 1995 and 17 April 1995, the seller disclosed the shortages in its accompanying invoices; thus, Article 40 was inapplicable.

The Tribunal also considered whether the shipment of 27 April 1995, in which the seller made up for the deficiencies in the two prior shipments by sending more than the contracted quantity would allow the buyer to avail itself of Article 40. The issue presented was whether delivery shortages in the small proportions as here, which are made up for in later deliveries within the overall delivery period, may be deemed not to be in conformity with the contract. The Tribunal denied the non-conformity of such a temporary shortage because the contract did not contain provisions for quantity discrepancies. If the buyer wanted a literal application of the contract then it should have informed the seller of its objection upon the first insufficient or excessive delivery. Since no such complaints were made, the seller was reasonable in assuming that it had complied with the contract and the buyer has no claims for deficiency or delay. The tribunal also stated that trading practices must be taken into consideration when interpreting the contract. The tribunal noted that up to 5 per cent of discrepancies are to be tolerated by the contractual partners especially when the difference is made up within the overall delivery time by subsequent deliveries.

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Classification of issues present

APPLICATION OF CISG: Yes. In choosing Austrian law the parties thereby also chose the CISG, which is part of that legal system.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 3 ; 8 ; 9 ; 38 ; 39(1) ; 40 [Also cited: Articles 45 ; 46 ; 47 ; 48 ; 49 ; 50 ; 51 ; 52 ; 74 ; 75 ; 76 ; 77 ]

Classification of issues using UNCITRAL classification code numbers:

3A ; 3B [Goods to be manufactured; Services [not] preponderant part of obligation];

8A ; 8C [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct; Interpretation in light of surrounding circumstances];

9D1 [Usages and practices: parties bound by applicable usages and practices];

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];

40A ; 40B [Seller fails to disclose known non-conformity; Seller loses right to rely on articles 38 and 39 (not applicable in this case)]

Descriptors: Applicability ; Choice of law ; Materials supplied by buyer ; Services ; Lack of conformity notice, timeliness ; Lack of conformity known to seller ; Intent ; Usages and practices

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=465&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): Unavailable

Translation: (English): ICC International Court of Arbitration Bulletin [ICAB], Vol. 11/No. 2 (Fall 2000) 78-82; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=465&step=FullText>; cisg-online.ch website <http://www.cisg-online.ch/cisg/urteile/706.htm>; case digest presented below

CITATIONS TO COMMENTS ON DECISION

English: van Houtte, ICAB (Fall 2000) 24 n.14 [choice of law], 26 n.35 [CISG and concurrent national law], 27 n.45 [notion of "sale"], 29 n.58 [inspection and notification]; Witz, ICAB (Fall 2000) 21 n.50 [inspection and notification]; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.612, 615; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 84; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 35 para. 8 Art. 37 para. 7 Art. 40 para. 7

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Case digest

EDITOR: Daniel J. Morse [*]

ICC Arbitration Award
Case No. 9083 of August 1999

Facts. This dispute arose out of a printing and supply contract. The Claimant [seller] agreed to print and supply the Defendant [buyer] with books to be resold to supermarkets and cut-price bookshops. Delivery was made, however the [buyer] refused to make payment for the goods, citing discrepancies between the quantity of goods delivered as compared with the contract amount, delay in the shipment and deficiency in the restitution of the films used for the printing. As such, [buyer] argued that it was entitled to compensation for the [seller] to offset any amount owed to the [seller] by the [purchaser].

Applicable law; Choice of law. The Arbitrator determined that Austrian substantive law is to be applied. This decision was based on Art. 6(1) of the ICC Rules of Arbitration, according to which the arbitration rules in effect at the commencement of the arbitral proceedings will apply, unless the parties agree otherwise in the contract.

"The United Nations sales law (CISG) (not excluded in the present case) itself constitutes substantive law, unless excluded by the parties (Art. 6). The CISG provisions concerning the questions presently to be settled are largely similar to those of Austrian law." [page 78] [**]

With respect to the alleged discrepancies in the quantities delivered.

4.1. "The printing assignment at issue, whereby, upon [buyer]'s order, [seller] mass-produced movable goods in bulk (books) using means which it provided, should be described as a sales contract within the meaning of 377 Handelsgesetzbuch (HGB) [Austrian Commercial Code], Art. 1 CISG. There is no need to examine whether the material or labor aspect is predominant.

If the purchase is a commercial transaction for both parties, then under 371(1) HGB the buyer must inspect the goods immediately after delivery by the seller, to the extent that this is feasible in the ordinary course of business, and, if a deficiency is apparent, immediately notify the seller thereof. Failure to do this implies that the goods have been accepted, according to 377, para. 2 HGB, unless the deficiency is one that could not be recognized when the inspection took place." [page 78]

The Arbitrator determined that the above provision also pertains to the quantity of goods delivered, so long as the goods delivered do not so obviously differ from those ordered such that the [seller] should have known of the deficiency. Thus, the inspection must take place immediately and, if such inspection reveals a deficiency, notice must also be immediate. This notice must substantiate the deficiency and, in the case of a discrepancy in quantity, must denote the missing amount. Failure to do so results in the loss of the [buyer]'s rights to recover for the deficiency and thus all damages from same are excluded.

4.2. The CISG governs contracts for the sale of movable goods between parties residing in different Contracting States. In this matter, both the parties resided in States that have adopted the Convention [Contracting States]. Furthermore, Austria, the State whose law the Arbitrator determined to apply, also is a Contracting State.

Materials supplied by buyer; Services. "Contracts for the delivery of goods to be manufactured or produced are treated like contracts of sale, unless the person who placed the order provided a substantial part of the materials necessary for such manufacture or production (Art. 3 CISG). The CISG is also applicable to mixed contracts for sale and work when the sales contract aspect is foremost, as here." [page 79]

Examination of goods; Lack of conformity notice, timeliness. Pursuant to Art. 38 CISG, the [buyer] is obligated to examine the goods, or cause them to be examined, within as short a time as practicable. If the contract requires carriage of the goods, such examination may be deferred until after the arrival at the destination. Further, if the goods are to be re-dispatched while in transit, the examination can be deferred until their arrival at the new destination. The [buyer] loses its rights to recover for discrepancies or deficiencies, pursuant to Art. 39 CISG if it does not give notice of the deficiency to the [seller] within a reasonable time of discovering same or when the deficiency should have been discovered. Should the [buyer] be able to establish a reasonable excuse for the lack of notice, however, Art. 44 CISG allows it to do so.

However, the [seller] loses its entitlement to rely on Articles 38 or 39 if the deficiency is of such a nature that it "knew or could not have been unaware and which he did not disclose to the buyer". [page 79]

In the instant matter, the [buyer] did not comply with either Articles 38 or 39 CISG nor did it offer any evidence to establish a reasonable excuse pursuant to Art. 44 CISG. Thus, the [buyer] lost all legal remedies available to it pursuant to Art. 45 CISG, which includes all those rights included in Articles 46 to 52 CISG (performance, cancellation of the contract, price reduction) and damages pursuant to Articles 74 to 77.

4.3. In the instant matter, inspection by the [buyer] needed to be completed once the goods were deposited with the firm, which the [buyer] fully entrusted with its obligation to inspect the goods. According to the record, the auxiliary inspected the goods for quality and quantity and forwarded this to the [buyer].

Under the CISG, the "reasonable" time for inspection and complaints is longer than that of 377 HGB ("immediately"). The "reasonable" time is determined by the objective and subjective circumstances of each case, although it is specified as eight days to one month in Caemmerer/Schlechtriem (op. cit. no. 17 re Art. 39). In Schwimann (no. 4 re Art. 39), a complaint of more than six weeks is said to be too late.

"In Honsell (Kommentar zum UN-Kaufrecht, no. 21 re Art. 39), a time limit of one week is given for notification and a period of fourteen days indicated for the overall time limit for inspection and notification. The Supreme Court of Austria (15 October 1998, 2 Ob 1919/98x, RdW 1999, 139 et seq. [<http://cisgw3.law.pace.edu/cases/981015a3.html>]) has come to the same conclusion. In its view, 'an overall inspection and complaints time limit of fourteen days [is] to be considered as reasonable, when there are no special circumstances in support of a reduction or extension.'" [page 80] No such circumstances were established in this matter.

4.5. The initial complaint over the shortages in the quantities did not occur until a written document dated 3 July 1995 with attachments dated 15 June 1995. This constituted a period of 2-3 months after which a complaint could be made. The complaint did not even occur within a reasonable time of the last delivery of 31 May 1995 by which time the missing quantities had been more than made up. Thus, the complaints obligation of the [buyer] has been violated and thus it has lost its rights to claim damages due to an insufficient quantity.

Consideration must next be given to whether the [buyer] may benefit from Art. 40 CISG. In comparing this provision to 377 HGB, the Arbitrator indicates that Art. 40 provides much more protection to the [buyer] since 377 HGB only benefits the [buyer] where the [seller] has committed fraud. [page 81]

Lack of conformity known to seller. Art. 40 CISG relieves the [purchaser] of the complaints obligation where the seller did not disclose to the [purchaser] a non-conformity of which it was aware or could "not have been unaware". In the deliveries of 30 March 1995 and 17 April 1995, however, the [seller] unequivocally advised the [buyer] of the discrepancy in quantities in the invoices. Thus, the complaint obligation was preserved.

4.6. It remained to be seen whether the shipment of 27 April 1995, in which the [seller] made up for the temporary deficiencies in the two prior shipments and sent more than the contracted quantity will allow the [purchaser] to avail itself of the Art. 40 CISG protection. The issue presented was whether temporary shortages which are made up in later shipments constitutes a non-conformity with the contract. The Arbitrator determined that it did not.

Intent. The contract did not provide special explicit provision regarding quantity discrepancies in partial deliveries. Nor is there any evidence that an oral or written rider to this effect was agreed upon by the parties.

The facts presented revealed that the [buyer] had accepted shipments which included both excessive and insufficient quantities of books. Nonetheless, these shipments were accepted. As such, the [seller] was entirely reasonable in determining that it was in compliance with the contract.

Usages and practices. Likewise, the Arbitrator concluded that such practice was common in the shipping industry. Shipments cannot always consist of an equal number of goods being shipped with each shipment. The ability to ship goods depends on the space available and the manner in which such goods are loaded. Where, in this case, the total shipment consists of several partial shipments, where the total number of goods balances itself out in the end, then there cannot be a claim for non-conformity. Thus, the [buyer] has no claims for deficiencies.


FOOTNOTES

* Daniel J. Morse is a member of the New York Bar. He is associated with the law firm Hardin, Kundla, McKeon, Poletto & Polifroni.

** Pagination is to publication of the case text at ICC International Court of Arbitration Bulletin, Vol. 11/No. 2 (Fall 2000) 78-82.

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Pace Law School Institute of International Commercial Law - Last updated January 19, 2011
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