## Facts

- An Italian garment seller and a German retail buyer contracted on February 11, 1989 for “autumn wares” to be delivered in 1989.
- The order form stated delivery in “July, August, and September ±,” and the seller’s invoices provided for payment within 60 days of the invoice date.
- Goods tied to a September 12, 1989 invoice were dispatched on September 19, 1989; delivery was tendered on September 26, 1989, but the buyer refused acceptance.
- Goods tied to a September 22, 1989 invoice were recorded as being in the buyer’s possession no later than October 4, 1989.
- The buyer returned goods by letter dated October 2, 1989, asserting the delivery period had expired and delivery was late.
- The seller rejected the return by letter dated October 13, 1989, asserting the delivery term permitted delivery through September with flexibility.
- The goods’ ultimate whereabouts could not be established during the proceedings.
- The seller sued for the purchase price of DM 4,583 plus interest.

## Issues

1. How should the contract term “July, August, and September ±” be interpreted: as three fixed monthly installments or as a flexible delivery window through September?
2. Under the CISG, was the buyer entitled to refuse acceptance and return the goods based on alleged late delivery?
3. If the buyer’s refusal was unjustified, was the seller entitled to recover the purchase price and interest?

## Decision

- The court held the CISG applied to the international sale.
- The court interpreted “July, August, and September ±” as a flexible delivery period extending through September, not a strict three-installment schedule.
- The court found the seller’s late-September tender (and related early-October handling) was timely and contract-conforming.
- The buyer’s refusal to accept and return of the goods were unjustified and constituted a breach by the buyer.
- The court awarded the seller DM 4,583 plus interest, recognizing CISG-based entitlement to interest and using domestic law to determine the rate.

## Legal Principles

- Contract delivery terms under the CISG are interpreted according to the contract’s wording and transaction context; claims of trade usage require sufficient proof to displace the contract text.
- A buyer may not refuse acceptance or treat the contract as avoided absent a CISG-grounded basis (including proper avoidance and, where required, a fundamental breach); an incorrect allegation of late delivery does not justify rejection.
- When the seller tenders conforming performance within the contractually agreed time, the buyer’s non-acceptance does not eliminate the obligation to pay the price.
- CISG Article 78 provides an entitlement to interest on sums in arrears; where the CISG does not specify an interest rate, domestic law may be used to supply the rate.

## Conclusion

The court enforced the seller’s claim for the price because the delivery clause allowed flexible performance through September, making the seller’s tender timely under the CISG; the buyer’s refusal to accept was a breach, and the seller was awarded the price and interest.


Italian Clothing Manufacturer v. German Retailer (In re CISG Sale), 5 C 73/89 (AG Oldenburg in Holstein Apr. 24, 1990)