Facts
In a written sales contract dated 30 October 1991, H. undertook to deliver a used TCM forklift to M. in exchange for payment of CHF 28,000. The contract stipulated that the forklift was to be equipped with a torque converter, i.e., an automatic transmission. On 20 November 1991, H. delivered a forklift of the agreed type, but equipped with a manual transmission and not an automatic one. M. then refused to take delivery of the forklift and declared on 21 November 1991 that he was withdrawing from the sales contract. H. rejected this declaration of termination and promised a replacement delivery in conformity, which arrived at M.'s premises on 2 December 1991. However, M. refused to accept this replacement delivery. H. then initiated debt collection proceedings for the payment of the purchase price.Considerations
The Federal Tribunal considered that the sales contract was for a generic item and not for a specific chattel. Therefore, the provisions on warranty for defects (Art. 197-210 CO) only apply if the seller has delivered an item with the contractually agreed generic characteristics. In the present case, the first forklift delivered, equipped with a manual transmission instead of the agreed automatic transmission,…