ABSTRACT
This chronology of facts shows that the buyer had inspected the goods which it had received within a quick and normal period of time, bearing in mind the heavy handling of the plates called for, and some incompressible periods of time which the inspection required, and had warned its seller of the non-conformities that it deemed unacceptable, within a period sufficiently reasonable so that no forfeiture clause could be opposed to it. The grounds drawn from Art. 39 CISG are thus to be set aside. [. . .]
Cour d’appel de Grenoble (France), 13 September 1995, CISG-online 157125
(For a summary of the facts see C 35-12 above.)
[Judgment] [. . .] 2. CONSIDERING, on a possible claim by the [buyer] resulting from the lack of conformity of the delivered goods, that the judgment of this question requires the preliminary determination of the applicable sales law; THAT the company SFF points out “that the parties and notably the [buyer] had from the beginning of the procedure chosen to submit their relations only to French law;” But that, as the contracts for the international sale of goods were concluded as of 1 January 1988, French law is stipulated by the Vienna Convention of 10 April 1980, as the conditions of applicability of this Convention are met; That the sale concluded between the [buyer] and the [seller] enters the material field of application of this instrument; That the seller and the buyer are established in two different States; That these States, France and Italy, were both parties of the Convention prior to the date of the conclusion of the sale; That the Convention is thus applicable to the sales concluded between the [buyer] and the [seller]; [. . .] THAT, concerning the [buyer’s] alleged claim of 8,400 f on the grated parmesan cheese, which had not been labeled in accordance with French Law on the composition and expiry date of food products, it is clear from an exchange of correspondence of 25 November 1992 between the [buyer] and the [seller], that the latter claims an agreement that the grated parmesan be packaged in “unmarked sachets”; But that, given the complaint of the [buyer], this agreement is not established; That it is thus appropriate to ascertain what the intent of the contracting parties was from the indications which they have been able to provide. THAT it is indisputable, by virtue of the relations pursued by the parties for at least several months, that the [seller] knew that the parmesan sachets ordered by the [buyer] would be marketed in France; That this knowledge imposed the duty on him, according to the provision of Article 8(1) of the Vienna Convention, to interpret the order as pertaining to goods, which have to comply with the marketing regulations of the French market; THAT in omitting to place labels on the sachets as to the composition and expiry date, the [seller] had delivered non-conforming goods in the meaning of Article 35 of the Vienna
Convention which particularly regulates packaging; That the buyer issued the written complaint the month following delivery; That this had thus been done within a reasonable time period in the sense of Article 39 of the Vienna Convention; THAT moreover, the prefixed time period of two years mentioned in the second paragraph of this article does not envisage a legal action. [. . .]
For the American approach, see the following case.
