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CISG CASE PRESENTATION

Netherlands 21 March 2006 Gerechtshof [Appellate Court] Arnhem (Toys case)
[Cite as: http://cisgw3.law.pace.edu/cases/060321n1.html]

Primary source(s) of information for case presentation: Website of the Dutch courts

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Case identification

DATE OF DECISION: 20060321 (21 March 2006)

JURISDICTION: Netherlands

TRIBUNAL: Hof Arnhem [Hof = Gerechtshof = Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Rolnummer 03/1021

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Belgium

BUYER'S COUNTRY: Netherlands

GOODS INVOLVED: Toys


UNCITRAL case abstract

THE NETHERLANDS: Court of Appeals of Arnhem, 21 March 2006 (Artimedes B.V. v G&P Toys B.V.B.A.)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/94],
CLOUT abstract no. 942

Reproduced with permission of UNCITRAL

Abstract prepared by J. Smits, National Correspondent, and Bas Megens

The parties entered into a contract for the sale of a consignment of sticker displays. After a first partial delivery, with a fax dated 29 October 2001 the buyer informed the seller that it could no longer accept the second partial delivery due to cancellations by its customers. The fax was concluded by the phrase "We shall attempt to rescue whatever we can and accept that number of goods for our clients that still wish to receive them". The seller stored the goods for quite some time, before they were finally sold. As the seller declared to the Court, they did not sell the sticker displays immediately after October 2001, because they held up hope for some time that the buyer would still wish to receive them, given its fax of 29 October 2001. The contract was rescinded in August 2002.

The question in the present case is whether a substitute transaction took place to minimize the loss. In its interim judgment, the Court of Appeals observed that the buyer had failed to prove such a transaction. Furthermore, a substitute transaction could not have occurred if the seller would have contracted with third parties even if the buyer had honoured the contract and the second partial delivery had taken place (thus the sticker displays did not have to be resold). The Court also held that no substitute transaction would have taken place if the seller had sold the goods of the second partial delivery to gift shops and book stores, the market in which the seller was already active.

The buyer argued that it could not be established that the seller had sold the second partial delivery to third parties only in August 2002 and that the seller, by reason of its sales prior to August 2002 and prior to the rescission of the contract, was not entitled to damages under article 88(3) CISG except for the expenses of preserving the goods. The Court rejected this argument, since it had been sufficiently established that the seller had stored the goods intended to be the second partial delivery until August 2002. With regard to the seller's argument that it had suffered damages in the form of non-realized profits, the buyer had objected that the amount stated by the seller should be limited. The Court dismissed the buyer's argument that the damages claimed by the seller for non-realized profit should be limited on the ground that the buyer could not foresee them at the time the contract was concluded (article 74 CISG). The Court noted that no facts or circumstances had been brought forward or had appeared from which it could follow that these damages could have not been foreseen by the buyer at the time of the conclusion of the contract.

In dismissing the arguments raised by the buyer, the Court was of the opinion that the seller was justified in waiting for a certain period of time after the fax of October 2001, before reselling the sticker displays. With that fax, the buyer had allowed for the (continued) possibility that it would still want to receive the second partial delivery. The buyer had not proved from which point in time the seller knew or should have understood that the buyer would no longer want to receive the second partial shipment. The mere contention by the buyer that the seller could have sold the stickers to third parties prior to August 2002 was insufficient to support the conclusion that the seller had insufficiently attempted to limit its damages (article 77 CISG). The Court therefore dismissed that argument. The Court also dismissed the buyer's claim that the expenses of preserving the goods were unreasonable (article 87 CISG), since this argument was not supported by appropriate evidence. Therefore the Court ordered the buyer to pay damages. The Court of First Instance had correctly condemned the buyer to pay the process fees. On appeal, however, the seller only claimed legal interest over the process fees. Therefore, there was no ground for awarding any legal interest over the primary sum. Insofar as the seller intended to claim interest as referred to in article 78 CISG, the Court concluded that this article was not applicable to the process fees.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 74 ; 77 ; 78 ; 87 ; 88

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Website of the Dutch courts <http://www.rechtspraak.nl/>; see also CISG-online.ch database <http://www.cisg-online.ch/cisg/urteile/1695.pdf>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated October 22, 2010
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