Case 14
F.P.S.P.A. v. H. sp. z o. o.
Court of Appeals in Łódź
Presenter: 赖明君
Overview
Plaintiff:
Italian seller
Contract for sale of
meat seasonings
Defendant:
Polish buyer
The Court of First
Instance in Poland
(ruled in favor of
the Plaintiff)
Defendant appealed.
Court of Appeals
in Łódź
(dismissed the
appeal)
Facts
Contract
Plaintiff: Italian
seller
1.It possessed all the quality certificates
as regards the seasonings
1. Sale of meat seasonings
2. Delivery at plaintiff’s premises
Defendant:
Polish buyer
Took over the goods at seller’s premises without raising
concerns
Started producing hamburgers with goods
Customers complained about the flavour of the hamburgers.
It wanted to return the goods and refuse to pay outstanding
price.
Issues
1. Whether the CISG is applicable in this case?
2. Whether the Buyer can allege non-conformity of the Seller?
Issue 1- Rules
Article 91 of Polish Constitution
1.After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified
international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its
application depends on the enactment of a statute.
2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if
such an agreement cannot be reconciled with the provisions of such statutes.
3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the
laws established by it shall be applied directly and have precedence in the event of a conflict of laws.
Article 1(1)(a) of CISG
(1) This Convention applies to contracts of sale of goods between parties whose places of business are in
different States:
(a) when the States are Contracting States;
(https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm)
Issue 1- Rules
Article 4
of Regulation (EC) No. 593/2008 of the European Parliament
and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I)
Applicable law in the absence of choice
1.To the extent that the law applicable to the contract has not been
chosen in accordance with Article 3 and without prejudice to
Articles 5 to 8, the law governing the contract shall be determined
as follows:
(a)a contract for the sale of goods shall be governed by the law
of the country where the seller has his habitual residence;
(https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32008R0593)
The law of seller’s place of
business: Italian Law
Conclusion
CISG and Italian Law can be applied.
Issue 2- Whether the Buyer be entitled to allege nonconformity of the Seller?
Rules
Article 35(2) of CISG
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless
they:
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the
conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it
was unreasonable for him to rely, on the seller’s skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner,
in a manner adequate to preserve and protect the goods.
Issue 2- Whether the Buyer be entitled to allege nonconformity of the Seller?
Analysis
Buyer(defendant)’s argument
The customers did not enjoy the flavor
of the hamburgers.
Decisive Criteria of nonconformity
Objective features
Issue 2- Whether the Buyer be entitled to allege nonconformity of the Seller? Under CISG
Article 38
Rules
(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is
practicable in the circumstances.
(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have
arrived at their destination.
Article 39
(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller
specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to
have discovered it.
Under Italian Civil Code
Article 1495 of the Civil Code
Terms and conditions for the action
The buyer forfeits the right to the guarantee if he does not report the defects to the seller within eight days of
discovery, unless otherwise established by the parties or by law.
（https://www.codice-civile-online.it/codice-civile/articolo-1495-del-codice-civile）
Issue 2- Whether the Buyer be entitled to allege nonconformity of the Seller?
Analysis
1. Obligation of examination of the goods
2. Discover evidence of lack of conformity
3. Give notice to the seller within a reasonable time(CISG)/8
days(Italian Civil Code)
Conclusion of the Court of First Instance
Therefore, the seller complied with all its obligations. There is no ground
for the buyer to allege rights relied on lack of conformity and cannot require
performance (Article 46 CISG), to declare the contract avoided (Article 49
CISG), to reduce the price (Article 50 CISG) and to claim damages (Articles
74-76 CISG), and above all, and the buyer was obliged to pay the price of
the goods in accordance with Article 53 of CISG, which is also consistent
with Article 1498 of Italian Civil Code.
Court of Appeals in Łódź
The Court of Appeals reaffirmed the the reasoning of the lower court and
dismissed the appeal. It also supplemented the reasoning with two points:
(1)The seasonings were not the only factors to influence the flavor of the
hamburgers.
(2)The examination shall be performed in accordance with article 38(2) of
CISG, which cannot be arbitrarily postponed.