Facts
The company W. Schönfeld K.G., based in Regensburg and specialised in the trade of textile raw materials, repeatedly purchased synthetic silk waste from the company Texta, Textilabfall-Handels- und Sortier AG, in St. Gallen. After a visit by Mr. Schönfeld to Texta, the buyer placed a new order on June 30, 1962 for at least 9-10,000 kg of new and multicoloured upholstery silk waste, without white stripes, checks or patterns, of similar quality to what had been previously delivered, at a price of 64 CHF per 100 kg, free carrier Chiasso. The seller confirmed this order on the same day. On January 3, 1963, Texta shipped 34 bales of upholstery silk waste totalling 12,149 kg to the Merzario forwarding agent in Chiasso. The buyer paid the purchase price of 7,775.35 CHF. However, on January 18, 1963, she requested the rescission of the sale on the grounds that the goods did not contain the striped, checked and patterned upholstery silk waste as agreed. Texta argued that it had delivered in accordance with the contract, i.e. an identical quality to that previously delivered. After a member of its board of directors had inspected the majority of the goods in Italy, Texta took back 6 bales and reimbursed 1,334.80 CHF to the buyer. It also declared itself ready to take back a seventh bale if it only contained upholstery silk waste, which proved to be the case.Considerations
The Commercial Court of the Canton of St. Gallen upheld the buyer's claim for 10,132.35 CHF plus interest. The Cantonal Court of Cassation of St. Gallen dismissed the nullity appeal filed by the seller against this judgment.
The Federal Tribunal considers that Swiss law is applicable to the contract,…