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CISG CASE PRESENTATION

Netherlands 16 October 2002 Appellate Court 's-Hertogenbosch (Plants case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/021016n1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20021016 (16 October 2002)

JURISDICTION: Netherlands

TRIBUNAL: Hof 's-Hertogenbosch [Hof = Gerechtshof = District Appeal Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Plants


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 7 ; 9(2) ; 18

Classification of issues using UNCITRAL classification code numbers:

7A ; 7C [Interpretation of Convention: principles of interpretation; Gap-filling];

9B [Implied agreement on international usages];

18A [Criteria for acceptance of offer]

Descriptors: Uniformity ; Good faith ; Gap-filling ; Offers ; Acceptance of offer ; Language issues ; Standard terms and conditions ; Usages and practices ; Set-off

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=960&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Unavailable

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 21; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 7 para. 30 Art. 8 para. 53 Art. 29 para. 2; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 104

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Gerechtshof [Appellate Court] 's-Hertogenbosch

16 October 2002 [20089 /HA ZA 98-1077]

Translation by [*] Patrick Bout [**]


The partnership, Keunen "Bloemen en Planten" V.O.F.,
located in Baarlo, community of Maasbree + Mr. X,
living in Baarlo, community of Maasbree + Mrs. Y,
living in Baarlo, community of Maasbree,

Appellants, attorney: Mr. T.W.H.M. Weller,

vs.

The limited liability company incorporated under
French law, Productions Sicamus S.A., located at
Angers, France,

Appealed, attorney: Mr. N.J.W.M. de Leeuw.

1. The case in appeal

Appellants, referred to as [Buyer], have appealed the sentences of the District Court of Roermond, in a writ dated 5 February 2001, in a case between them as Defendant, and appealed, further [Seller], as Plaintiff, as judged on 30 September 1999 and 16 November 2000. [Buyer] has issued eight Complaints in its Act of Complaints (numbered I though VII, including twice a number VI, which have been argued by [Seller] in an Act of Reply. The parties have handed in documents and have requested a sentence.

2. Consideration

      2.1 For the content of the Complaints, the Court refers to that which is stated in the Act of Complaints of [Buyer].

      2.2 As the establishment of the facts by the District Court in consideration 2 of the appealed sentence of 30 November 1999 has not been contested, either in the Complaints or otherwise, the Court will also use these facts.

      2.3 This case concerns, in short, the following:

  1. [Buyer] has bought and received hortensias from [Seller] in December 1997 for a total amount of Dutch Florins [DFL] 41,413.95.
  2. [Seller] sent [Buyer] an invoice for this amount, dated 2 December 1997.
  3. Around 3 July 1998, [Buyer] paid DFL 22,102.95 toward this invoice. [Buyer] has not paid the remaining DFL 19,311.00.
  4. [Seller] has claimed payment of this remaining amount. Furthermore, [Seller] - with reference to its general conditions - has claimed payment of interest based on the contract, as well as a lump-sum raise. After the raise in the claim [Seller] has also claimed payment of the costs that had to be made for translating the general conditions.
  5. [Buyer] has argued that it suffered damages in the amount of DFL 21,378.84 excluding costs because of a shortcoming by [Seller] and - appealing to settlement - argued over whether the remaining amount of DFL 19,311.00 was still due. [Buyer] also stated that the general conditions of [Seller] are not applicable, and that because of that the claimed interest and lump-sum raise are not due.
  6. The District Court awarded the [Seller]'s claim, as it was claimed in the first instance.

      2.4 [Buyer']'s Complaint I poses the question whether [Seller]'s general conditions are part of the sales contract of December 1997. [Buyer] alleges, among other things, that it was not given sufficient opportunity to get to know these general conditions before the conclusion of the contract.

      2.5 The Court presumes that the CISG is applicable with regard to the content of the contract and thus also with regard to the applicability of the [Seller]'s general conditions.

      2.6 The CISG uses the model of offer and acceptance (aanbod en aanvaarding) for the conclusion of contracts and has no specific clauses that deal with the applicability of general conditions. Therefore, the general conditions of [Seller] are only applicable as far as this applicability was obtained with its offer, and this offer was accepted by [Buyer]. It is a question of interpretation whether the CISG demands that the general conditions be handed by [Seller] to [Buyer] prior to or at the time of conclusion of the contract, or whether [Buyer] could have acquired knowledge of these general conditions in another way. It follows from article 7 CISG that, for this interpretation, attention should be paid to the international character of the CISG and the necessity of uniformity in its application, and an interpretation of the Convention that promotes the observance of good faith in international trade.

      2.7 The international character of the CISG and the necessity of uniformity in its application means that it is of great importance how the aforementioned question is answered in the laws of the countries that are party to the CISG and what can be regarded as common principles of the judicial systems. The UNIDROIT Principles of International Commercial Contracts (1994) - that are also meant to be helpful in the explanation of the CISG - in article 2.20 speak out on the question whether the fact that the opposing party of the user of the conditions knows the content of the conditions is needed for acceptance, but not on the question whether it is essential that the opposing party has had a reasonable opportunity to get to know the conditions, and if good faith demands that the user of the conditions take the initiative to offer that opportunity to the opposing party, for instance, by supplying the conditions before or at the time of conclusion of the contracts, and the answer to the first question is not in all cases definitive for the last.

      2.8 Article 2:104 of the Principles of European Contract Law (PECL 2000), a document derived from a commission of legal specialists from a great number of countries that are party to the CISG (and also EU-member states) - among which France and The Netherlands - states in its first subsection that general conditions can only be called for against an opposing party that has no knowledge of the content of these conditions, if the user of the conditions "took reasonable steps to bring them to the other party's attention before or when the contract was concluded." According to the second subsection of PECL article 2:104, it is not sufficient to simply refer to the general conditions in the contract.

      2.9 The rule mentioned above is roughly in line also with the Dutch and French law regarding general conditions and thus with the laws of the countries from which the parties are originating. The Court furthermore considers this rule to be beneficial for the fulfilment of good faith in international trade and as such will take this rule as the starting point for its interpretation of the CISG.

      2.10 [Buyer] has argued in this case, that it received the original invoice - on the back of which the general conditions are printed - only approximately fourteen days after delivery of the hortensias and that at the time of the delivery of the hortensias, [Buyer] received only a copy of the invoice (being a copy of the front only), on which the general conditions were not printed.

[Seller] has not contradicted this statement of [Buyer], so the Court will assume that this statement is correct.

The foregoing leads to the conclusion that [Seller] did not bring the general conditions to the attention of the [Buyer] in time - that is, before conclusion of the contract - by way of [Seller]'s invoice of 2 December 1997.

      2.11 On which note, the Court arrives at the discussion of the proposition by [Seller] that the general conditions are applicable, because the general conditions were printed on the back of previous invoices. On appeal, [Seller] remained with a reference to its point of view as was stated in [Seller]'s Act of Reply (Conclusie van Repliek). As such, [Seller] has not sufficiently supported its point of view. [Buyer] has contradicted the de facto correctness of the propositions of [Seller] with its Act (Conclusie van Dupliek) and has substantiated this contradiction with documents.

      2.12 The foregoing leads to the conclusion that it cannot be said that the applicability of the general conditions of [Seller] has been accepted by [Buyer], so that these general conditions are not applicable. [Buyer]'s Complaint I is therefore successful.

This means that the claimed interest by [Seller] - based on the general conditions - for the amount of DFL 4,812,12, a lump-sum raise of DFL 8,282.79 and contractual interest of 1.5% per month over the amount of DFL 19,311.00 from 26 October 1998 until the day of payment is not to be awarded. [Buyer]'s seventh Complaint (in the Act of Complaints mistakenly numbered Complaint VI) - that is also aimed against the awarding of these claims - is successful to that extent.

      2.13 Complaint VII also aims at the (supposed) awarding of the claim of [Seller] regarding the translation costs.

As it shows from the foregoing that [Seller] has unjustly called for the application of its general conditions, the translation costs have to be for its account. This means that [Buyer] assumes correctly that the claim has to be rejected to that extent. However, the Court concludes from the final sentence, that these costs were not awarded, so [Buyer] has no interest from this Complaint.

      2.14 The sixth Complaint aims at the judgment of the District Court that [Buyer] has unjustly claimed settlement.

      2.15 The Court stipulates that the CISG does not regard settlements of rights of claim, and that, following article 4 of the treaty regarding the law applicable to agreements from a contract (EVO), in so far French law is applicable; this is because [Seller] has to perform the most characteristic performance, being the delivery of the goods (hortensias).

This means that settlement of claims is only possible if the claims to be settled are liquidated (article 1291 Code Civil), meaning their existence is undisputed and their amount is set.

      2.16 [Seller] has disputed that it committed a fundamental breach of the contract against [Buyer] and has - as far as a fundamental breach would be considered present - argued that the claim of [Buyer] should be waived, because [Buyer] did not claim in time, or at least [Buyer] did not suffer any damage from the alleged fundamental breach. Finally, [Seller] also contested the justness of the claimed damage.

      2.17 The aforementioned means that the demand of liquidity cannot be fulfilled and that settlement is not possible. The claim for the remaining part of the principal amount of DFL. 19,311.00 by [Seller] therefore has to be awarded. [Buyer]'s Complaint VI is therefore dismissed.

      2.18 Complaints II up to and until V concern - in short - the judgment of the question whether [Buyer] can claim damages and more specifically the answer to the question of whether there was a fundamental breach on the part of [Seller] and if [Buyer] has provided notice of this breach in due time.

With regard to its claim [Buyer] has not entered a counterclaim and - as its appeal for settlement cannot hold - therefore has no interest in the discussion of these Complaints.

      2.19 The eighth Complaint (in the Act of Complaints mistakenly numbered as Complaint VII), in which an appeal is made against the sentence by the District Court, does not have independent meaning - except for the part that it concerns the sentence for the costs of the procedure - and thus needs no further discussion.

The Court judges that the sentence for the costs of the procedure is correct, as [Buyer] - with regard to the conflict as was apparent in first instance - can be regarded as the party that is mostly found to be wrong. The Complaint is therefore rejected.

      2.20 The conclusion is that the sentence of the District Court of 16 November 2000 will be reversed as far as [Buyer] has been sentenced to pay interest in the amount of DFL 4,812.12, a lump-sum raise for an amount of DFL 8,282.79 and the contractual interest of 1.5% per month on the amount of DFL 19,311.00 from 26 October 1998 until the day of payment and that the appealed sentences - passing by the offer for providing proof as it is not relevant - for the remainder will be kept in force. Because both parties in this appeal - which basically concentrated on the question whether the general conditions of [Seller] are applicable - have been partly proved right and partly wrong, the costs of this appeal will be compensated so that both parties will bear the costs made by them.

3. Sentence

The Court reverses the sentence of 16 November 2000 as far as it concerns the sentence of [Buyer] to pay interest in the amount of DFL 4,812.12, a lump-sum raise in the amount of DFL 8,282.79 and contractual interest of 1.5% per month on the amount of DFL 19,311.00 from 26 October 1998 until the day of payment;

And. judging over:

     -      Rejects the other claims;
 
     -      Enforces the appealed sentence as far as it concerns different matters; and
 
     -      Compensates the costs that were incurred in this appeal.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee of France is referred to as [Seller] and Defendant-Appellant of The Netherlands is referred to as [Buyer].

** Patrick Bout, legal counsel in The Netherlands, editor of <http://www.cisg.nl>.

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Pace Law School Institute of International Commercial Law - Last updated December 5, 2005
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