Case number: 4
Article number: sales convention / 1(1)(b); 38; 39; 49; (1)(a); 74
Thessaurs issue:
Country of decision: Germany
Year of decision: 1989
Type of decision: Judicial decision

Case 4: CISG 1(1)(b); 38; 39; 49;(1)(a); 74
Germany: Landgericht Stuttgart; 3 kfH O 97/89 31 August 1989
Published in German: Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1990, 317
Commented on by Reinhart, IPRax 1990, 289

A German shoe retailer ordered from an Italian seller 48 pairs of shoes of the same model and colour as delivered under an
earlier order. Based on customer complaints concerning shoes of the earlier delivery, the buyer requested one week after its
new order cancellation of that order. The seller shipped the second lot and the buyer examined only few samples without
detecting any defect. 16 days later, the buyer notified the seller of customer complaints about imperfect sewing and
measurements and loss of colour of the shoes. The seller demanded payment of the full sales price, including interest at bank
loan rates.

Following German private international law, the court applied CISG as the relevant Italian law. Leaving open whether articles
38 and 39 of CISG applied or, by virtue of article 7(2) CISG, the time-period for giving notice under German domestic law
became subsidiarily relevant, the court held that the buyer did not give notice within the required time. Having been forewarned
by the complaints concerning the first delivery, the buyer should have examined carefully all shoes of the second contingent, in
which case the buyer would have discovered the patent defects of the kind alleged later.

As regards the payment of interest, the court applied Italian law as the law of the creditor's country and since the purchase
price was payable in Italian currency.