Case number: 107
Article number: sales convention / 35; 49
Thessaurs issue:
Country of decision: Austria
Year of decision: 1994
Type of decision: Judicial decision

Case 107: CISG 35; 49
Austria: Court of Appeal Innsbruck; 4 R 161/94 1 July 1994
Unpublished

The plaintiff, a Danish exporter of flowers, sold several shipments of garden flowers to the Austrian defendant, who refused to pay the price for some of them arguing that the seller had breached a guarantee or committed a fundamental breach of the contract since the flowers did not bloom through the entire summer.

The court of first instance dismissed the buyer's arguments on the ground that it had failed to prove that the seller had guaranteed that the flowers would bloom through the entire summer, or that the seller had committed a fundamental breach of contract because the flowers were not conforming with contract specifications (articles 36 and 49(1)(a) CISG). The court further held that, even if the buyer had been able to establish lack of conformity of the goods, it would have lost its right to avoid the contract, since it had failed to give the seller notice within a reasonable period of time after discovery of the defect (article 39(1) CISG; which, the court found, was similar to article 377 of the Austrian Commercial Code). The court held that two months after delivery of the goods was a reasonable period of time within which the buyer should have, and in fact had, discovered the lack of conformity of the goods.

The Court of Appeal confirmed the decision of the court of first instance on the ground that the buyer had failed to establish that the seller had breached a guarantee or committed a fundamental breach of contract in supplying flowers non-conforming with contract specifications (articles 25, 35 and 49(1)(a) CISG).