ABSTRACT

The [buyer] declares a set-off against the [seller’s] claim in this amount. In the alternative, [buyer] declares that she reduces the price of the non-conforming granules “blanc” [white] to zero under Art. 50 CISG. [. . .] In any event, the [buyer] did not satisfy her obligation [under Arts 38 and 39 CISG] to examine the goods and to provide to [seller] timely notification of the non-conformity. Additionally, the [seller] disputes the amount of damages claimed by the [buyer]. [. . .]

[Judgment] [Seller’s] claim for payment by [buyer] is unfounded. [. . .] However, the [buyer], according to Article (45)(1)(a) and Article 74 CISG, has a claim for damages at least in the amount of her statement of claim on the basis of [seller’s] nonconforming performance of the contract. According to the Court’s taking of evidence, the titanium dioxide content of the granules was below 6%, the amount which [seller] himself considers necessary. The expert had taken two samples and determined the amount of titanium dioxide, coming up with figures of 5.51% and 5.38%. The photos taken by the expert indicate that the shutters manufactured out of the granules let light through. The reason for this according to the expert was, on the one hand, that the granules delivered by the [seller] had too low a titanium dioxide content and, on the other hand, that the profile of the Rolladen shutters was too thin in comparison to similar products manufactured by other producers. The effective strength of the rods is in part only 1.3 mm when it should customarily be at least 1.6 mm. However, even if the rods had possessed a strength of 1.6 mm, the damage could not have been avoided, because the light shone through also in those places where the strength was 1.6 mm or more. The Court must conclude that despite the less than customary strength of the rods, [buyer’s] customers would not have issued complaints if the titanium dioxide content had been sufficient. This follows from the fact that in the course of using the granules delivered by Firm L (her former supplier), the [buyer] had not experienced this problem, as [buyer’s] manager testified in the oral hearing. Whether the insufficient strength of the rods contributed to the damage is furthermore irrelevant under the law. Contrary to German sales law, under the CISG the [seller] guarantees the conformity of the goods (Arts 35, 45(1), 74) in a way that the seller is liable for damages that the buyer suffers as a result of non-conformity of the goods. The [buyer’s] damages mainly consist of compensation for her customers, caused by the [seller’s] delivery of granules with an insufficient percentage of titanium dioxide. Therefore, the [seller] has to pay damages irrespective of the fact that the rods would have been less likely to have light shine through had the [buyer] manufactured them at a strength of 1.6 mm and above. The [buyer] has not lost her right to remedies under the CISG for failure to examine the goods and notify the seller of lack of conformity of the goods in a timely manner as provided by Articles 38 and 39 of the CISG. The expert convincingly explained that the [buyer] was unable to establish without quantitative chemical analysis that the goods did not contain the correct amount of titanium dioxide. In the circumstances, such an analysis could not have been required from the [buyer] as a criteria for fulfilling her duty to examine the goods within the short period [seller] alleges. [. . .]