LIST OF CASES

Name Facts and Claim Law

4,000 ton rail press case  Seller substituted a different
Manufacturer in the United lockplate for the one described
States v Joint venture in in the design documents.
China; Sweden, Arbitration  Did not inform the buyer of this
Institute of the Stockholm substitution.
Chamber of Commerce 1998  4 years later the lockplate broke
-> significant damage to the
press.
 The buyer immediately notified
the seller. Seller rejected any
liability, buyer requested
arbitration.
Memo: The seller has duty „to
inform the buyer of the risks
resulting from the non-
conformity‟ [Sport clothing
case]. The buyer bears the
burden of proof [4,000 ton rail
press case; Cashmere sweaters
case].

Held: The seller was aware of

Aluminium hydroxide case
Germany Appellate Court
Köln 1997
Cashmere sweaters case
German buyer v Italian
Seller
Germany, Oberlandesgericht
München 1998
the possibility that the substitute
lockplate may fail if it was not
properly installed.
Buyer bears the burden of
proving that the seller knew or
could not have been unaware of
a lack of conformity. But once
the buyer has sufficiently
established the basis for his
claim under Art40, the seller
must show that he did not reach
the requisite state of awareness
86 The provision of the dispute
resolution clause is a material
alteration of an offer. [Filanto
v. Chilewich; Aluminium
hydrate case].
The seller of cashmere sweaters Memo: The seller has duty „to
sued the buyer for the inform the buyer of the risks
outstanding purchase price. The resulting from the non-
buyer sought set-off, claiming conformity‟. [Sport clothing
that it had notified the seller that case]. Buyer bears the burden
the sweaters were defective of proof [4,000 ton rail press
Held: Seller may rely on Art. 39 case; Cashmere sweaters case].
CISG because buyer has not
proven that seller could not have
been unaware of the lack of
conformity.
Article 40 of the CISG, would
have been applicable only if the
seller had overlooked obvious
defects in the goods that could
 have been detected through the
exercise of ordinary care. In this
case, since the buyer had
distributed the goods to its own
customers, the goods were
neither unusable nor unsaleable..
Chemical substance case Material, purchased by Memo: Claimant raised non-
Moroccan buyer v German Moroccan buyer from a German conformity issue only on 29
seller of raw material for seller, was not suitable for use in July 2008 [Cl. Ex. No. 5].
manufacturing plastic PVC its manufacturing facilities. The According to the case law, the
tubes (dryblend) buyer claimed lack of quality period of time for notification
Germany, Oberlandesgericht and sued for damages. is considered as inacceptable
Koblenz 1998 Held: Giving notice to the [Fiberglass fabrics for filters
seller three weeks after delivery case; Surface protective film
was held as being too late. case; Chemical substance case;
Two weeks were a reasonable Ham case].
period. One week for
examination and another week
for giving notice.
Buyer had lost its right to rely on
the lack of conformity according
to article 39(1) of the CISG. if
the seller had had a duty to warn
the buyer or provide additional
information about the goods
delivered -> there would be a
loss of the right to rely on late
notification. In this case - no
such obligation.
Cowhides case "Paragraph 1 of Article 8 93 Provision that the squid
ICC Arbitration Case No. contains a subjective test. To would be 2007/2008 catch
7331 of 1994 show that the [seller] understood should be interpreted through
the Moscow Protocol to result in the rules laid down in Article 8
a release of [buyer] under this of the CISG [Cowhides case].
test, [buyer] would have to
demonstrate that [seller] knew or
could have been aware of this
interpretation.
"Under paragraph 2 of Article 8
that interpretation which is the
more reasonable in light of the
kind of parties involved and
their circumstances will prevail.
The test of paragraph 2 is the
same kind as the parties
involved with respect, for
example, to such matters as
linguistic background and
technical skill. All relevant
circumstances, as noted in
paragraph 3 of Article 8 are to
be considered.
Doors case A French seller, plaintiff, sold Memo: if delivery involves
Germany, Appellate Court doors to a German buyer, large quantities of goods, the
Saarbrücken 1993 defendant. The buyer refused to buyer is not required to
pay the purchase price, claiming examine all the goods but may
lack of conformity of the goods. restrict the examination to
The seller sued the buyer for the representative, random tests
outstanding purchase price. [Bianca in Bianca/Bonell, Art.
38, note 2.3; Doors case].
Case: Immediate examination
after delivery would have been
necessary.
The buyer could have
unwrapped sample doors, which
would at least have revealed
defects depending on
manufacturing, since the doors
had been produced in series.
Parties could derogate from the
provisions contained in articles
38, 39 CISG by trade usage. No
such a trade usage in this case.

Farm animals case 104 Pursuant to Article 8(2) of

Germany Appellate Court the Convention, statements or
Köln 2001 other conduct of the parties
should be interpreted according
to the understanding that a
reasonable person of the same
kind in the same circumstances
would have had. This is
generally considered by the
courts and tribunals as more
objective [Vodka case; Farm
animals case].
Fiberglass fabrics for filters Memo: Claimant raised non-
case conformity issue only on 29
Germany Appellate Court July 2008 [Cl. Ex. No. 5].
Koblenz 1999 According to the case law, the
period of time for notification
is considered as inacceptable
[Fiberglass fabrics for filters
case; Surface protective film
case; Chemical substance case;
Ham case].
Filanto v. Chilewich Dispute whether an arbitration 86 The provision of the dispute
United States Federal District agreement exists. resolution clause is a material
Court 1992 Court used contract principles alteration of an offer. [Filanto
embodied in CISG. New York v. Chilewich; Aluminium
buyer by a letter to the Italian hydrate case].
seller incorporated the Russian
master agreement which
 contained an arbitration clause.
This letter was the offer.
Frozen bacon case
Germany Appellate Court
Hamm 1992

Gulf Resources Development

v. Hangzhou Hanggang
Foreign Economic Co. Ltd.,
China Hangzhou
Intermediate People’s Court
[District Court] 2002

Ham case Memo: Claimant raised non-

Germany conformity issue only on 29
Lower Court Riedlingen July 2008 [Cl. Ex. No. 5].
1994 According to the case law, the
period of time for notification
is considered as inacceptable
[Fiberglass fabrics for filters
case; Surface protective film
case; Chemical substance case;
Ham case].
Heliotropin case The contract stipulates that Memo: when contractual
China International Buyer purchases Heliotropin requirements contradict with a
Economic & Trade containing not less than 99%. sample, the contract should
Arbitration Commission Clause 13: contract takes effect prevail [The Heliotropin case].
1993 only when Seller sends the
sample of the goods to Buyer, Held:
and Buyer approves.
Buyer requested Seller to send
Buyer: This is a typical a sample and obtain Buyer's
transaction of sale by sample. approval in order to use the
They agreed to produce goods sample as the basis to inspect
conforming to the sample, and to the goods. Accordingly, sample
use the sample as a reference approval stipulated in Clause
should disputes arise. 13 of the contract is not only
the condition for the contract to
Seller alleged that the contract be effective, but also the
in this case is not a sale by standard for Buyer to inspect
sample; it is a sale by description the goods.
with conditions.
Seller has not provided
sufficient reasons and evidence
to support its assertion that the
goods he delivered conform to
the sample he sent, and so the
Arbitration Tribunal does not
support this assertion.

Industrial product case Seller took measures to mitigate Memo: Claimant having the
ICC Arbitration Case No. its loss as a result of Buyer TGT report could have easily
10329 of 2000 having failed to take delivery of showed to its customers that
 the goods. Seller sold the goods
to a Filipino client at a reduced
price. It was a fair market price
- market price of the product was
decreasing. Consistent with Art.
77 CISG - a party who relies on
a breach of contract must take
such measures as are reasonable
in the circumstances to mitigate
the loss.
. damages. Its claim for damages
Leather goods case
Germany 1997 Appellate
Court München [7 U
2070/97]
40% of the squid, which was
labeled “2007 catch” fit for use
as bait [Cl. Ex. No. 8]. […]
That would have reduced the
reimbursement price
accordingly [Industrial
product case].
Held:
Claimant took the necessary
and appropriate measures in
time and place to mitigate its
is therefore admitted.

New Zealand mussels case Swiss seller delivered to the Memo: 91 Article 35(1)
Germany, Bundesgerichtshof German buyer mussels. These addresses parties subjective
(Federal Supreme Court) mussels contained a cadmium comprehension of the quality
1995 concentration exceeding the which was emphasized in the
limit recommended by the contract [Schwenzer in
German health authority. Schlechtriem/Schwenzer, p.
413; New Zealand mussels
Held: No lack of conformity – case].
mussels were still eatable
despite non-conformity with 112 Paragraph (2) of Article 35
German health standards (these marks out a series of objective
standards was only criteria which should determine
recommendations). There were the conformity of goods if the
no implied requirements in the contract fails to do so, or if it
contract for compliance of the contains only insufficient
goods with German health provisions [Schwenzer in
standards. Schlechtriem/Schwenzer, p.
416], or incomplete details of
It is the responsibility of buyer the requirements to be satisfied
to inform the seller of the by the goods for the purposes
conditions in his own country or of Article 35(1) [New Zealand
in the place of destination. mussels case].

Nova Tool Appellant did not finish a
Nova Tool & Mold Inc. v. contract in time (although it
London Industries Inc., tried). Respondent found an
Ontario Court of Appeal alternative subcontractor
(2000) (because of the pressure from its
customer, Honda Motors).
Held: That was a necessary
operation to mitigate damages
and the appellant's co-operation
was in its own interests because
the respondent faced a potential
loss to Honda that was
Memo: Claimant could have
made a substitute transaction
for buying squid for bait to
save its reputational loses and
other damages. This method of
mitigation is generally
considered as proper [Nova
Tool].
Claimant is not entitled to
claim full damages under
Article 74, since Claimant has
failed to mitigate the adverse
 significant.
Plastic granules case
Germany Oberlandesgericht
München
Sport clothing case The plaintiff, an Italian clothing
Germany, sales company, filed a lawsuit
District Court Landshut, against the buyer, a Swiss
1995 company, requesting payment of
the purchase price. The
defendant buyer pleaded late
delivery and lack of conformity
of the goods.
held notification of lack of
conformity given to the seller
seven to eight months after
delivery was by far too late
(article 39(1) CISG).
Surface protective film case
Germany
Supreme Court
1998
Test tubes case
Germany
Appellate Court Frankfurt
1995
Trekking shoes case The Italian plaintiff (seller) sold
Austria, to the Austrian defendant
Supreme Court, (buyer) hiking shoes. About
1999 three weeks after the last partial
delivery, the buyer informed the
seller of defects which had not
been detectable upon initial
consequences arisen out of the
breach of the contract
[Stoll/Gruber in Schlechtriem/
Schwenzer, p. 792; Nova Tool].
Memo: Referring to Article
39(1) any lack of conformity,
which was discovered upon
proper examination, must be
notified to the seller. The seller
should be notified within two
weeks about the lack of
conformity [Trekking shoes
case; Plastic granules case].
This period begins when the
buyer discovered or ought to
have discovered the lack of
conformity.
Memo: The seller has duty „to
inform the buyer of the risks
resulting from the non-
conformity‟. [Sport clothing
case]. Buyer bears the burden
of proof [4,000 ton rail press
case; Cashmere sweaters case].
Memo: Claimant raised non-
conformity issue only on 29
July 2008 [Cl. Ex. No. 5].
According to the case law, the
period of time for notification
is considered as inacceptable
[Fiberglass fabrics for filters
case; Surface protective film
case; Chemical substance case;
Ham case].
Memo: Referring to Article
39(1) any lack of conformity,
which was discovered upon
proper examination, must be
notified to the seller. The seller
should be notified within two
weeks about the lack of
 inspection. conformity [Trekking shoes
Held: according to article 38(1) case; Plastic granules case].
CISG the buyer must examine This period begins when the
the goods within a short period. buyer discovered or ought to
This time frame varies according have discovered the lack of
to the circumstances, e.g. the conformity.
size of the firm of the buyer, the
kind of goods and their
complexity. Normally, in the
absence of special circumstances
the buyer should notify within
about 14 days from delivery.

In this case - no reason to extend

this time-Iimit:
shoes were seasonal goods ->
delayed notice -> the buyer lost
the right to rely on the lack of
conformity, unless the defects
could not be discovered by an
examination pursuant to normal
business practice. In the absence
of any applicable business
practice the goods must be
examined thoroughly and in a
professional manner. The Court
noted that in any case the burden
of proof regarding notification of
non-conformity in due form and
time lies with the buyer.

Vodka case 104 Pursuant to Article 8(2) of

Germany the Convention, statements or
District Court München other conduct of the parties
1996 should be interpreted according
to the understanding that a
reasonable person of the same
kind in the same circumstances
would have had. This is
generally considered by the
courts and tribunals as more
objective [Vodka case; Farm
animals case].