Case number: 170
Article number: sales convention / 35; 38; 39; 40; 45(1)(b); 74
Thessaurs issue:
Country of decision: Germany
Year of decision: 1995
Type of decision: Judicial decision

Case 170: CISG 35; 38; 39; 40; 45(1)(b); 74

Germany: Landgericht Trier; 7 HO 78/95

12 October 1995

Published in German: Neue Juristische Wochenschrift - Rechtsprechungsreport (NJW-RR) 1996, 564

The plaintiff, an Italian wine seller, sued the German buyer (defendant) for payment of the price of wine sold and delivered. The defendant refused payment arguing that the delivered wine was not of merchantable quality since it contained 9% water with which the wine had been mixed. The bottles had therefore been seized and the wine destroyed by German authorities and the defendant had been charged with the costs for these measures. The defendant set off these costs against the plaintiff's claim (articles 45(1)(b) and 74 CISG).

The court found in favour of the defendant. Under the CISG, the defendant could set off its damages against the purchase price as a result of the seller's breach of contract. The court found that the defendant had not lost its right to rely on the non-conformity of the wine even though the defendant did not examine the wine for water after delivery (articles 35, 38 and 39 CISG). In this case the plaintiff could not have been unaware of the non-conformity (article 40 CISG).