Cisg case presentation

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63 2011 ND-CP 127118

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Switzerland 8 January 1997 Appellate Court Luzern (Blood infusion devices case) [translation available] [Cite as:]

Primary source(s) for case presentation: Case text

Case Table of Contents

Case identification UNCITRAL abstract Classification of issues present Editorial remarks
Citations to case abstracts, texts, and commentaries Case text (English translation)

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Case identification

DATE OF DECISION: 19970108 (8 January 1997)


TRIBUNAL: OG des Kantons Luzern [OG = Obergericht = Appellate Court]

JUDGE(S): Unavailable


CASE NAME: Unavailable

CASE HISTORY: 1st instance Amtsgericht Luzern-Land 6 October 1995 [affirmed] [CISG overlooked]

SELLER'S COUNTRY: Italy (plaintiff) BUYER'S COUNTRY: Switzerland (defendant) GOODS INVOLVED: Blood infusion devices

Case abstract

SWITZERLAND: Obergericht des Kantons Luzern 8 January 1997

Case law on UNCITRAL texts (CLOUT) abstract no. 192

Reproduced with permission from UNCITRAL

The Italian seller of medical supplies sold a quantity of items to his exclusive distributor, the Swiss buyer, who resold the goods to a Swiss hospital. The hospital refused acceptance of the consignment on the ground of lack of conformity. Therefore, the buyer refused to pay the purchase price. The seller sued the buyer and the court of first instance ordered the latter to pay the purchase price.

On appeal, the court upheld that decision. With respect to the issue of the CISG's applicability, the court held that the CISG was applicable and had not been excluded by the parties since a valid choice of law could only be made by the parties if they consciously wanted their relation to be governed by a specific law. In addition, the court held that the CISG would not apply if other elements than those related to the contract of sale were preponderant (article 3(2) CISG). However, the court noted that a single sale of goods pursuant to, for example, an exclusive distribution or franchise contract would be governed by the CISG.

As regards examination of the goods by the buyer for the purpose of determining their conformity with the contract, the court found a period of ten days after delivery to be appropriate (article 38 CISG). As to the notice requirement for lack of conformity, the court held that a "rough average" of one month was also appropriate (article 39 CISG). After a review of international case law, the court stated that there were serious gaps in the construction of the terms "examination of the goods" and "notice of lack of conformity", with the extremely restrictive German case law, on the one hand, and the more liberal American and Dutch case law, on the other. The court observed that the gap between these two positions had to be narrowed.

The court held that the buyer had lost its rights on account of having notified the seller about the lack of conformity of the goods more than three months after their delivery.

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Classification of issues present APPLICATION OF CISG: Yes [Article 1(1)(a)] APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7(1) ; 38(1) and 38(3) ; 39(1) [Also cited: Articles 3(2) ; 6 ; 44 ;
74 ]

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