You bought abroad, the goods arrived faulty and the supplier will not answer

The case, in five lines

What is brought

Claim for lack of conformity under the 1980 Vienna Convention: avoidance of the contract (articles 25 and 49), delivery of substitute goods or repair of the ones delivered (article 46), proportionate price reduction (article 50) and damages (articles 45 and 74). Damages stack on top of any of the other remedies, they do not replace them.

Before which court

The civil section of the Tribunal de Instancia (Court of Instance) for the agreed place of delivery, where that place is in Spain (article 7.1 of the Brussels I bis Regulation). At your choice, also the courts of the seller's domicile if it is in the European Union (article 4). Claims above 15,000 euros follow the ordinary procedure, and up to that figure the oral procedure. A valid choice of court clause (article 25 of the same Regulation) displaces all of the above, and an arbitration agreement takes the matter out of the courts altogether: recognition of a foreign award belongs to the Civil and Criminal Chamber of the High Court of Justice of the autonomous region.

Deadline

There are two separate clocks and either one of them ends the case. The first is notice of the defect: you must tell the seller about the lack of conformity, specifying its nature, within a reasonable time from when you discovered it or ought to have discovered it, and in any event within two years from the date the goods were actually handed over to you (article 39 of the Convention), unless a contractual guarantee period is inconsistent with that cap. It starts on physical delivery, not on the invoice or the payment. The second is limitation of the claim itself, which the Convention does not govern (article 4) and which follows the law applicable to the contract: if that is Spanish law, it is five years from the moment performance could be demanded (article 1964.2 of the Civil Code).

Who can bring it

The buyer named in the contract, provided that its place of business and the seller's are in different States. Goods bought for personal, family or household use fall outside (article 2(a) of the Convention), because that is not an international commercial sale. If you assigned the receivable, or your trade credit insurer paid you and stepped into your shoes, the claim belongs to whoever holds the right at that moment. And do not merge two different claims: lack of conformity is brought against the seller, whereas damage that occurred in transit is claimed against the carrier and has its own rules and its own deadlines.

Financial risk

If you lose, you bear your own defence and, under the loser pays rule, the other side's costs, unless the case raises serious doubts of fact or law. On top of the litigation cost you must add sworn translation of the contract and the correspondence, the expert report on the goods and, if the seller is outside the European Union, service of the claim in its country and the possible recognition there of the Spanish judgment. The worst outcome is not losing on the merits: it is the case collapsing because notice of the defect came late or came in vague terms, because then you lose the whole thing, with costs, while being right.

The Vienna Convention governs even if your contract never names it

If your company has its place of business in Spain and the seller's is in another Contracting State, the 1980 Vienna Convention applies on its own, without anyone invoking it (article 1(1)(a)). It also applies where the rules of private international law lead to the law of a Contracting State (article 1(1)(b)), so it reaches a British or Indian seller whenever Spanish law governs the contract. There are 97 Contracting States, among them China, the United States, Germany, France, Italy, Turkey, Japan, Mexico, Brazil, Portugal and Vietnam. The United Kingdom, India and Morocco are not among them.

To keep it out you must exclude it, and do so recognisably (article 6). A contract that merely says it is governed by Spanish law does not exclude it, because the Convention is Spanish law for international sales of goods. This surprises almost everyone, and it is precisely what gives you more tools than you think you have: the Convention lets you demand substitute goods or reduce the price without having to unwind the whole contract.

Outside its scope are goods bought for personal, family or household use (article 2(a)), auctions, judicial sales, securities, ships and aircraft. If you ordered goods made to your specification, the Convention still applies, unless it was you who supplied a substantial part of the materials (article 3(1)); and it does not apply where the preponderant part of what you contracted for was labour or services and the goods were incidental (article 3(2)).

When goods are not conforming, and when the defect is serious enough

You do not need a technical specification sheet for there to be a defect. Article 35 requires quantity, quality, type and packaging to match what was agreed, and it further treats the goods as non conforming if they are not fit for the ordinary purpose of that kind of product, if they do not serve the particular purpose you made known to the seller before closing the contract, if they do not possess the qualities of the sample the seller showed you, or if they are not packaged in a way adequate to preserve them. The approved sample and the email where you explained which production line the material was for count as much as a signed specification.

Article 36 settles the most frequent argument: the seller is liable for a lack of conformity that already existed when the risk passed to you, even if the defect only becomes apparent afterwards. This matters a great deal with Incoterms such as FOB or CIF, where risk passes at the port of origin. The fact that the transport risk was yours does not turn a manufacturing defect into your problem.

That said, not every defect lets you send the order back. Only a fundamental breach opens the door to avoiding the contract (article 49(1)(a)) and to demanding substitute goods (article 46(2)), and under article 25 a breach is fundamental when it substantially deprives you of what you were entitled to expect. Repair, price reduction and damages do not require that degree of severity. If only part of the shipment fails, the remedies apply to that part, and you may avoid the entire contract only if the partial or non conforming delivery is itself a fundamental breach (article 51).

The deadline that decides the case: giving written notice of the defect

Article 38 requires you to examine the goods within as short a period as is practicable in the circumstances. If the contract involves carriage, that examination may be deferred until the goods reach their destination, and if you redispatch them without a reasonable opportunity to examine them and the seller knew that might happen, until they reach the new destination. There is no statutory number of days: it is a standard measured against the type of product, and courts are far stricter with perishables than with complex machinery.

Then comes article 39, the provision that kills most of these cases. You lose the right to rely on a lack of conformity if you do not give the seller notice of it, specifying its nature, within a reasonable time after you discovered it or ought to have discovered it. And you lose it in any event if you do not give that notice within two years from the date on which the goods were actually handed over to you, unless that cap is inconsistent with a longer contractual guarantee period. Note the two words everyone forgets: specifying its nature. An email saying the material is bad is not notice; a letter saying that the profiles in batch 4471 are 2.4 millimetres thick instead of the agreed 3 is.

There are two ways out when the deadline has gone, and it is worth knowing them before writing the case off. The first is article 40: the seller cannot rely on articles 38 and 39 if the lack of conformity relates to facts it knew or could not have been unaware of and did not disclose to you, which in practice means demanding its internal traceability and quality control records. The second is article 44: if you can give a reasonable excuse for failing to give notice in time, you keep the price reduction and damages, though you lose loss of profit. As for dispatch, article 27 protects you: if the communication was sent by means appropriate in the circumstances, a delay or loss in transmission does not deprive you of your rights, but the fact that you sent it is something you must be able to prove.

What you can demand, and why sometimes you can no longer send it back

The range is wider than it looks. You may require performance, delivery of substitute goods if the breach is fundamental, or repair if that is reasonable to ask (article 46). You may reduce the price in the same proportion as the value of what was delivered differs from the value conforming goods would have had, whether or not the price has been paid (article 50). You may avoid the contract if the breach is fundamental (article 49), and avoidance obliges both sides to make restitution concurrently (article 81(2)). And you may claim damages in every case, on top of any of the above (articles 45(2) and 74), plus interest under article 78.

Article 82 is the trap nobody sees coming: you lose the right to avoid the contract and to demand substitute goods when it becomes impossible for you to return the goods substantially in the condition in which you received them. That is why assembling, cutting, mixing or installing the defective material can cost you those two remedies. The rule has three exceptions that save many cases: where the impossibility is not due to your act or omission, where the deterioration results from the examination required by article 38 itself, and where you sold or transformed the goods in the normal course of business before you discovered the defect. Even losing avoidance, you keep price reduction and damages.

Two more things the seller will use against you. Article 48 gives it the right to cure at its own expense even after the delivery date, if it can do so without unreasonable delay or inconvenience, and if it asks whether you will accept cure and you do not reply within a reasonable time, you are bound while it performs. And article 77 obliges you to mitigate your loss: if you could have bought a replacement on the market and did not, or let the line stoppage drag on, the damages will be cut by what you should have avoided. Keeping the alternative quotes you requested is as useful as keeping the replacement invoice.

Where the fight happens: the Incoterm picks the judge before you do

If the seller is domiciled in the European Union, you can always sue it there (article 4 of the Brussels I bis Regulation). The useful alternative is article 7(1), which in contractual matters allows you to sue at the place of performance and specifies, for the sale of goods, that this place is the one in the Member State where, under the contract, the goods were delivered or should have been delivered. The Court of Justice of the European Union held in Car Trim (C-381/08) and Electrosteel (C-87/10) that this place is determined by reading the contract, that Incoterms carry decisive weight in determining it, and that only if the contract does not allow it to be fixed does one fall back on the place of physical handover to the buyer at the final destination.

The practical consequence is immediate and almost nobody anticipates it when signing. An EXW or an FCA at the seller's premises places delivery outside Spain, and then the civil section of the Spanish Tribunal de Instancia will not have jurisdiction through article 7(1). A DAP or a DDP at your warehouse places it here. And above all of this sits article 25: a clause submitting to the courts of another State, even buried in the standard terms you signed without reading, prevails unless it is null and void as to its substantive validity under the law of that State. Reading those three lines before drafting the claim saves months.

If the seller is outside the European Union, the jurisdiction of the Spanish courts is examined under article 22 quinquies of the Organic Law of the Judiciary, which confers it in contractual matters where the obligation at issue is to be performed in Spain. And if the contract contains an arbitration agreement, the dispute does not go to the courts: a jurisdictional objection is raised, the matter goes to arbitration, and recognition of a foreign award belongs to the Civil and Criminal Chamber of the High Court of Justice (article 8(6) of Law 60/2003), with an annulment action that lapses two months after the award is notified (article 41(4)). If the governing law is foreign, its content and force must be proved in the proceedings, and if that fails the Spanish court may apply Spanish law (article 33 of Law 29/2015).

You must negotiate before suing, and without that document your claim is not admitted

Since 3 April 2025, article 5 of Organic Law 1/2025 makes prior recourse to an appropriate dispute resolution method a condition of admissibility. Article 3(1) of the same law extends the requirement to civil and commercial matters including cross border disputes, so having your seller in Milan or in Shenzhen does not exempt you. Sales between businesses appear in none of the exceptions in article 5(2), which are limited to fundamental rights, child protection measures, support for persons with disabilities, filiation, summary possession claims, buildings in danger of collapse, international child abduction and bill of exchange proceedings.

This is not a soft formality. Article 264(4) of the Civil Procedure Act requires the claim to be accompanied by the document evidencing the attempt to negotiate, or a statement of responsibility that it was impossible because the defendant's address is unknown. Article 399(3) requires the claim itself to describe how that negotiation unfolded. And article 403(2) orders the claim to be rejected at the door if it is missing. A claim that is perfect on the merits falls at the threshold over this.

The good side is that negotiating works in your favour on the clock. Article 7(1) provides that a request addressed to the other party to start negotiating, with its subject matter properly defined, interrupts limitation or suspends lapse periods from the date on which the attempted communication is recorded, and that time starts again or resumes if within thirty calendar days there is no written reply or no first meeting is held. Article 7(3) then gives you one year to file the claim, counted from receipt of the request or from the end of the negotiation without agreement. One honest warning: this operates on Spanish limitation, not on the notice period in article 39 of the Convention, which is a different burden. Do not count on negotiation freezing the two years.

How we run the case, step by step

1. 1

   Freeze the evidence before touching the goods

   Stop the line, set the batch aside and document the condition it arrived in with a reliable date: a notarial record of the unpacking or an expert report with photographs, batch identification, serial numbers and measurements. If you fear the goods will deteriorate, be returned or be lost, you can ask the civil section of the Tribunal de Instancia to take evidence in advance before filing the claim (article 293 of the Civil Procedure Act) or to order measures preserving the state of things (article 297). This first hour is what later fixes the date on which you discovered the defect.

2. 2

   Give written notice of the defect, describing exactly what fails

   Tell the seller about the lack of conformity specifying its nature, not your annoyance: order reference, batch, quantity affected, how it differs from what was agreed and by what measurement you checked it. Do it by a means that leaves a record of dispatch and of content, because article 27 of the Convention protects you against transmission failures but not against the absence of proof that you sent it. In that same communication, and not later, ask for what you want: substitution or repair, because article 46 requires that request to be made when giving notice or within a reasonable time afterwards.

3. 3

   Read the whole contract, starting with the Incoterm and the small print

   Before deciding anything you must know where the fight will be. Look for three things: the Incoterm and the place of delivery, because jurisdiction under article 7(1) of the Brussels I bis Regulation depends on it; the governing law clause, because it decides the limitation period the Convention does not govern; and the jurisdiction or arbitration clause, because article 25 of the same Regulation and an arbitration agreement override everything else. This reading also tells you whether the contract validly excluded the Convention, which is far rarer than the seller will maintain.

4. 4

   Open the mandatory pre action negotiation, which also stops the clock

   Send the seller a request to negotiate with the subject matter properly defined, that is, identifying the same dispute you will later take to court. That document satisfies the admissibility requirement of article 5 of Organic Law 1/2025, it is the paper required by article 264(4) of the Civil Procedure Act and, in addition, it interrupts limitation from the moment the attempted communication is recorded (article 7(1)). If there is no written reply within thirty calendar days, the clock resumes and you have one year to file (article 7(3)).

5. 5

   Secure recovery before the seller empties the account

   If the seller holds accounts in a European Union Member State other than Spain, you can apply for a European Account Preservation Order, which is decided without hearing the debtor. It can be applied for even before suing (article 5 of Regulation 655/2014) before the same court that has jurisdiction on the merits (article 6(1)), and it requires showing a real risk that without it enforcement would be impossible or considerably more difficult, plus that the claim is likely to succeed on the substance (article 7). Mind the calendar: obtained before the claim, you have thirty days from the application to start proceedings on the substance and prove it, or the order is revoked (article 10). The Regulation does not apply in Denmark.

6. 6

   File the claim, combining the principal remedy with damages

   The claim is filed before the civil section of the Tribunal de Instancia that has jurisdiction, under the ordinary procedure if you are claiming more than 15,000 euros. Ask first for the remedy you actually want, avoidance with repayment of the price, substitution, repair or proportionate reduction, and always add damages and interest, which are incompatible with none of the above. Attach a sworn translation of the contract and of the relevant correspondence, the expert report and the calculation of loss. If the seller is outside the European Union, budget from the start for the time service in its country takes, usually the longest stretch of the whole matter.

The law that applies

• Art. 39 Convención de Viena de 1980. The buyer loses the right to rely on a lack of conformity if it does not give the seller notice, specifying its nature, within a reasonable time after discovering it or after it ought to have been discovered, and in any event within two years of actual handover, unless a contractual guarantee period is inconsistent with that cap. BOE-A-1991-2552
• Art. 38 Convención de Viena de 1980. The buyer must examine the goods within as short a period as is practicable in the circumstances; if the contract involves carriage, examination may be deferred until arrival at destination, and until the new destination where there was a redispatch the seller could foresee. BOE-A-1991-2552
• Art. 35 Convención de Viena de 1980. Defines when goods are non conforming: the agreed quantity, quality, type and packaging, fitness for ordinary use, fitness for the particular purpose made known to the seller, and the qualities of the sample or model presented. BOE-A-1991-2552
• Art. 25 Convención de Viena de 1980. A breach is fundamental when it causes the other party such detriment as substantially to deprive it of what it was entitled to expect under the contract, unless the party in breach did not foresee that result and a reasonable person in the same situation would not have foreseen it either. BOE-A-1991-2552
• Art. 49 Convención de Viena de 1980. The buyer may declare the contract avoided if the breach is fundamental or if the seller fails to deliver within the additional period fixed; once the goods are delivered, the buyer loses that right unless it avoids within a reasonable time after learning of the breach. BOE-A-1991-2552
• Art. 46 Convención de Viena de 1980. Allows the buyer to require performance, to require delivery of substitute goods only if the lack of conformity amounts to a fundamental breach, and to require repair where reasonable; both requests must be made when giving notice of the defect or within a reasonable time afterwards. BOE-A-1991-2552
• Art. 50 Convención de Viena de 1980. Allows the price to be reduced in the proportion that the value of the goods delivered bears to the value conforming goods would have had, both taken at the time of delivery, whether or not the price has been paid. BOE-A-1991-2552
• Art. 82 Convención de Viena de 1980. The buyer loses avoidance and substitution if it cannot make restitution of the goods substantially in the condition received, unless the impossibility is not due to its act or omission, results from the examination under article 38, or follows a normal resale or transformation carried out before the defect was discovered. BOE-A-1991-2552
• Art. 7.1 Reglamento Bruselas I bis. In contractual matters it allows suit at the place of performance and specifies that, in a sale of goods, that place is the one in the Member State where, under the contract, the goods were delivered or should have been delivered. 32012R1215
• Art. 25 Reglamento Bruselas I bis. A clause by which the parties confer jurisdiction on the courts of a Member State binds regardless of the parties' domicile, unless the agreement is null and void as to its substantive validity under the law of that State. 32012R1215
• Art. 5 LO 1/2025. Makes prior recourse to an appropriate dispute resolution method a condition of admissibility in civil proceedings, with a closed list of exceptions that does not include sales between businesses. BOE-A-2025-76
• Art. 7 LO 1/2025. A request to negotiate with a properly defined subject matter interrupts limitation or suspends lapse from the moment the attempted communication is recorded; time starts again if there is no written reply within thirty calendar days, and one year is then available to file the claim. BOE-A-2025-76
• Art. 403.2 LEC. Orders the claim to be rejected where the documents required by law are not attached or the circumstances referred to in article 399(3) are not stated in cases where the law requires prior recourse to an appropriate dispute resolution method. BOE-A-2000-323
• Art. 293 LEC. Allows an item of evidence to be taken in advance before proceedings begin where there is well founded fear that, because of the persons involved or the state of things, it could not be taken at the usual procedural stage. BOE-A-2000-323
• Art. 1964.2 Código Civil. Personal actions with no special period prescribe after five years from the moment performance of the obligation can be demanded. BOE-A-1889-4763
• Art. 7 Reglamento 655/2014. The court issues a European Account Preservation Order where the creditor shows a real risk that without it enforcement would be impossible or considerably more difficult and, where it holds no title yet, that its claim is likely to succeed on the substance. 32014R0655
• Art. 8.6 Ley 60/2003 de Arbitraje. Assigns recognition of foreign arbitral awards to the Civil and Criminal Chamber of the High Court of Justice of the domicile or residence of the party against whom recognition is sought, with fallback criteria based on the place of enforcement or of effects. BOE-A-2003-23646
• Art. 33 Ley 29/2015 de cooperación jurídica internacional. Proof of the content and force of foreign law follows the Civil Procedure Act and is assessed under the rules of sound judicial reasoning; exceptionally, if the parties fail to prove it, Spanish law may be applied. BOE-A-2015-8564

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions