Case number: 167
Article number: sales convention / 1(1)(a); 35; 38; 39(1); 44; 45(1)(b); 74
Thessaurs issue:
Country of decision: Germany
Year of decision: 1995
Type of decision: Judicial decision

Case 167: CISG 1(1)(a); 35; 38; 39(1); 44; 45(1)(b); 74

Germany: Oberlandesgericht München; 7 U 3758/94

8 February 1995

Original in German

Unpublished

The plaintiff, an Austrian insurance company, sued the defendant, a German company, for damages owing to the breach of a sales contract. The defendant had sold its product to the plaintiff's client, an Austrian company, which in turn sold it to a Danish company. The Danish buyer, after receiving and using the goods, informed the Austrian seller about the non-conformity of the goods. The Austrian seller did not inform the defendant, but gave notice to its insurance company, the plaintiff, for compensation. For this purpose, the Austrian seller assigned to the plaintiff its purported damages claim against the defendant.

The applicable German law to the contract for the supply of goods to be produced was the CISG as both companies had their places of business in different States Parties to the CISG, i.e., Austria and Germany (article 1(1)(a) CISG). Accordingly, a possible claim for damages for the delivery of goods not conforming with the contract could be based on articles 45(1)(b) and 74 CISG. But, a possible non-conformity of the delivered goods upon examination was of no importance (articles 35, 38 and 45(1) CISG) because neither the Austrian seller nor the Danish buyer gave notice to the defendant specifying the lack of conformity within a reasonable time pursuant to article 39(1) CISG. The Danish buyer only informed the Austrian seller, who then informed the plaintiff. Yet, this notice was given three months after delivery of the goods and thus deemed not to have been given within a reasonable time. As a reasonable excuse for the failure to give the required notice under article 44 CISG could not be found, the appellate
court dismissed the plaintiff's claim.