Two parties conclude a contract for sale of 1000 books on 22 February 2021. The seller agrees to send 700 books in three deliveries via express post service by 15 March 2021. The buyer, who owns a bookshop, receives the packages on time and notices that some of the packages are damaged, but does not open them immediately. After two weeks, the buyer opens the packages and notices that some of the spines of the books were heavily damaged (probably in transport) and that they will need to reduce the prices if they wish to sell them as new copies. What is more, the buyer notices that at least 200 books are second-hand books, even though the order was placed for newly published books only. As for the remaining 300 books, the parties agree that they will be taken over by the buyer by 15 April 2021 in the seller’s warehouse after they receive and examine the first delivery. However, due to the dissatisfaction of the buyer with the state of the books that were delivered, they refuse to take over the remaining 300 books from the warehouse. The warehouse is unfortunately flooded on 13 April 2021 and the majority of the books designated for the buyer are destroyed. The seller demands full payment of the price. The parties explicitly chose the CISG as the applicable law. Discuss the following by providing your arguments supported both by scholarly work and leading cases on the matter: 1 of 2 a) When did the risk pass for the 700 books that were sent by post? b) Are the legal issues regarding the new books damaged in transport and the second-hand books different in terms of conformity? In other words, can non-conformity be claimed in both cases? c) When did the risk pass for the 300 books that were put at the buyer’s disposal in the warehouse? d) Does the buyer have to pay the full price? If yes, why? If not, why not? e) What are the seller’s possible counter-claims against the buyer’s assertion for non- conformity? OSCALA Citation
