Case number: 82
Article number: sales convention / 5(2)(b); 39; 45; 47(2); 49(1)(b); 51; 78; 82(1)
Thessaurs issue:
Country of decision: Gambia
Year of decision: 1994
Type of decision: Judicial decision

Case 82: CISG 35(2)(b); 39; 45; 47(2); 49(1)(b); 51; 78; 82(1) Germany: Oberlandesgericht Dsseldorf; 6 U 119/93 10
February 1994
Published in German: Recht der Internationalen Wirtschaft (RIW) 1994, 1050

The defendant, a German buyer, refused to pay the purchase price asserting that parts of the fabrics delivered by the plaintiff,
an Italian seller of textiles, were of a colour different from that specified in the contract. The first instance court held in favour of
the plaintiff.

The appellate court held that the fact that some of the textiles delivered were of a different colour did not amount to
non-conformity with contract specifications, since the textiles were not unfit for the purpose for which they were bought (article
35(2)(b) CISG). The court held that such a delivery constituted partial non-performance, as a result of which the defendant
was entitled to exercise the rights prescribed in articles 46 to 50 of the CISG (article 51 CISG). However, it was found that
the defendant failed to fix an additional period of time of reasonable length for performance by the plaintiff, and consequently, it
was held that the defendant could not exercise those rights (articles 39, 47(2) and 49(1)(b) CISG). The only right that the
defendant had not lost as a result of its failure to fix an additional period of time for performance by the plaintiff was the right to
demand payment of damages for breach of contract by the plaintiff (article 45 CISG). However, the court found that the
defendant had not demanded such damages.

In addition, it was held that the defendant had lost the right to declare the contract avoided

on another ground, namely that the defendant had sold further the goods bought, thus having made restitution of the goods
impossible (article 82(1) CISG).

The appellate court confirmed the decision of the court of first instance and ordered the defendant to pay the purchase price
plus interest (article 78 CISG). In view of the fact that the CISG does not specify the interest rate, the court applied the
statutory interest rate of 5% of the applicable German law chosen by the parties. The court noted that, if the parties had not
chosen German law as applicable law and Italian law were to apply, the interest rate would still be the same.