Reference no: EM131650479

A Canadian seller sued a U.S. purchaser for the purchaser's refusal to pay for concrete light poles utilized in a construction project in Florida. The purchaser counterclaimed that it had sustained damages because the poles had not been delivered on time. The seller admitted that it had problems with production and was unable to ship a truck load of poles every two weeks as it had done in the past. Nevertheless, the purchaser accepted the poles that had been shipped. Applying the CISG, the court interpreted Article 39 to encompass not only nonconforming goods but also goods that were not shipped in a timely manner pursuant to the contract. Thus, the light poles could be deemed nonconforming based not on their performance but rather on their untimely delivery. As the purchaser had given notice of the untimely delivery of the light poles within two years from their delivery, it was free to pursue its counterclaim. Do you agree with this result? Is the court's interpretation of Article 39 too expansive? Was Article 39 intended to include untimely delivery as well as nonconforming goods? Sky Cast, Inc. v. Global Direct Distribution, LLC, 2008 U.S. Dist. LEXIS 21121 (E.D. Ky. 2008).