Netherlands 28 January 2005 Supreme Court (B.V.B.A. Vergo Kwekerijen v. Defendant)
[Cite as: http://cisgw3.law.pace.edu/cases/050128n1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: C03/290HR
CASE NAME:
CASE HISTORY: 1st instance Rb Rotterdam 26 April 2001; 2d instance Hof 's-Gravenhage 24 June 2003 [affirmed]
SELLER'S COUNTRY: The Netherlands (defendant)
BUYER'S COUNTRY: Belgium (plaintiff)
GOODS INVOLVED: Tomato plants
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4A [Scope of Convention (issues covered): inclusion of standard terms and conditions]; 7C22 [Problems governed by Convention but not expressly settled: recourse to general principles on which Convention is based]; 8B [Intent (interpretation of party's statements or other conduct): interpretation based on objective standards]
Descriptors:
Excerpt from presentation by Philip De Ly, "Sources of International Sales Law: An Eclectic Model", at UNCITRAL - SIAC Conference on 25 Years United Nations Convention on Contracts for the International Sale of Goods, Singapore (22 September 2005)
"The facts of this case related to a sale of Tomato plants by a Dutch seller to a Belgian buyer. The plants were imported by the Dutch company from a seller in Gran Canaria and expert evidence had shown that the plants were infected by a bacteria. There were no express warranties obtained from the seller in Gran Canaria and the Dutch seller relied on its general conditions of sale containing an exemption clause. The trial courts had decided that, under CISG, there was agreement between the parties as to the application of the seller's general conditions and that the Dutch seller was exempted from liability. The Belgian buyer attempted to avoid the application of the CISG by invoking Article 8(2) of the Rome Convention on the Law Applicable to Contractual Obligations protecting a party against acceptance by silence if any such protection is afforded by the law of its place of habitual residence. The Dutch Supreme Court held that the Rome Convention was not applicable because the matter regarding the formation of the sales contract was governed by CISG. The gap as to the application of standard conditions, in the opinion of the Court, was to be decided by CISG's rules on contract formation and, thus, the acceptance of the seller's general conditions was governed solely by CISG, pr-empting conflict rules. The Gran Canaria Tomatoes case shows that Article 7(2) CISG not only may pre-empt domestic rues regarding general conditions but also protective conflict rules."
Go to Case Table of ContentsCITATIONS 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=1012&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Hoge Raad website; [2005] Rvd W (Rechtsraak van de Week) 22; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1012&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
French: Claude Witz, Recueil Dalloz (22 February 2007) 537
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Institute of International Commercial Law - Last updated May 9, 2007