Case number: 123
Article number: sales convention / 35 (2); 49
Thessaurs issue:
Country of decision: Germany
Year of decision: 1995
Type of decision: Judicial decision

Case 123: CISG 35 (2); 49
Germany: Bundesgerichtshof; VIII ZR 159/94 8 March 1995
Published in German: Entscheidungen des Bundesgerichtshofs in Zivilsachen (BGHZ) 129, 75
Commented on by Daun in Neue Juristische Wochenschrift (NJW) 1996, 29; by Magnus in Lindenmaier/M"hring, Nachschlagewerk des Bundesgerichtshofs, CISG No. 2; by Piltz in Europ„ische Zeitschrift f�r Wirtschaftsrecht (EuZW) 1995, 450 and by Schlechtriem in Entscheidungen zum Wirtschaftsrecht (EwiR) Art 35 CISG 1/95 and in Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1996, 12

The German Supreme Court confirmed the decision of the Oberlandesgericht Frankfurt a.M. (see CLOUT Case No. 84). It held that a Swiss seller, who delivered to the German buyer New Zealand mussels containing a cadmium concentration exceeding the limit recommended by the German health authority, was not in breach of contract. The cadmium concentration itself constituted, in the court's opinion, no lack of conformity since the mussels were still eatable. Furthermore, the Supreme Court held that article 35 (2)(a) and (b) CISG does not place an obligation on the seller to supply goods, which conform to all statutory or other public provisions in force in the import State, unless the same provisions exist in the export State as well, or the buyer informed the seller about such provisions relying on the seller's expert knowledge, or the seller had knowledge of the provisions due to special circumstances.

The Supreme Court further held that the defendant had lost the right to rely on the lack of conformity and to declare the contract avoided in the ground of faulty packaging, since the defendant had waited more than a month before it notified the plaintiff about the non-conformity and thus had not acted within the reasonable time required by article 39 (1) CISG. According to the court, in this case one month after delivery would be a "generous" period of time but obviously acceptable as "reasonable time" for the purpose of notification.