Case number: 50
Article number: sales convention / 35(2)(a); 45; 49(1); 51(1); 74
Thessaurs issue:
Country of decision: Germany
Year of decision: 1991
Type of decision: Judicial decision

Case 50: CISG 35(2)(a); 45; 49(1); 51(1); 74
Germany: Landgericht Baden-Baden; 4 0 113/90 14 August 1991
Excerpts published in German: Recht der Internationalen Wirtschaft (RIW) 1992, 62
Summary published in Italian: Diritto del commercio internationale July-September 1993, 651

The plaintiff, an Italian tile manufacturer, demanded payment of the balance due under a contract with the defendant, a German
company. The defendant counterclaimed damages on the ground that the goods initially ordered, as well as the replacement
sent, were non-conforming with contract specifications. Under the contract, objections concerning non-conformity could not
be submitted later than thirty days after delivery.

The court, applying CISG as part of Italian law applicable under German private international law, found that the plaintiff failed
to deliver goods fit for the purpose for which goods of the same description would ordinarily be used and, as a result, the
defendant was entitled to declare the contract partially avoided and to reduce the price (art. 35(2), 45, 49(1) and 51(1)
CISG). While such a partial avoidance did not affect the defendant's right to claim damages (art. 45(1)(b) CISG), it was held
that the defendant had lost the right to claim damages since it failed to notify the plaintiff about the non-conformity of goods
within the thirty-day-period after delivery set in the contract.