## Facts

- A French buyer ordered elevator cables from a German manufacturer for installation in Eiffel Tower elevators.
- The seller delivered the cables on Jan. 9, 1995, on reels that did not match the order specifications.
- The buyer repackaged the cables onto compliant reels and forwarded them to its maintenance-company client on Jan. 17, 1995.
- During installation in March 1995, the end-client discovered defects in the cables themselves; replacement occurred in June 1995.
- The buyer notified the seller of non-conformity by fax on Mar. 16, 1995.
- The buyer later sought warranty recovery from the seller for damages claimed by the end-client and insurers.
- The buyer relied on a unilateral statement in its commercial documents indicating disputes would be governed by “French law.”

## Issues

1. Whether the CISG governed the cross-border sales contract and, if so, whether a unilateral “French law” reference excluded the CISG under CISG Article 6.
2. Whether limitation/time-barring of the warranty action was governed by the CISG and, if not settled, which domestic law applied via CISG Article 7(2) and conflicts rules.
3. Whether the buyer complied with CISG Articles 38 and 39 by examining the goods and notifying the seller of lack of conformity within the required time.

## Decision

- The court held the CISG applied because the parties’ places of business were in different Contracting States and there was no proven mutual agreement to exclude it.
- The court held limitation was a matter governed but not settled by the CISG; it applied domestic law identified through conflicts rules, which led to German law.
- Applying the relevant German limitation rules, the court concluded the action was not time-barred.
- The court nonetheless affirmed dismissal of the buyer’s warranty claim because notice of non-conformity was not given within the time required by CISG Articles 38 and 39.

## Legal Principles

- The CISG applies by default to international sales between parties in different Contracting States (CISG art. 1(1)(a)).
- Exclusion of the CISG under Article 6 requires proof of a common intention; a unilateral reference to “French law” does not, without more, exclude the CISG.
- Limitation/time-barring is treated as governed but not settled by the CISG; absent an applicable general principle, Article 7(2) directs recourse to the law determined by private international law.
- Under Articles 38 and 39, the buyer must examine goods within a practicable period and give notice of lack of conformity within a reasonable time after discovery or when it ought to have discovered the defect.
- Failure to give timely notice under Article 39 results in loss of the right to rely on lack of conformity, even if the action is not barred by the applicable domestic limitation period.

## Conclusion

The court applied the CISG and rejected a unilateral “French law” reference as an opt-out, used conflicts analysis to apply German law to limitation (finding no time bar), and upheld dismissal because the buyer’s notice of non-conformity was untimely under CISG Articles 38 and 39.


Traction Levage SA v. Drako Drahtseilerei Gustav Kocks GmbH, No. 2000/04607 (Paris Ct. App. Nov. 6, 2001)