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CISG CASE PRESENTATION

Netherlands 15 August 2006 Gerechtshof [Appellate Court] Arnhem
[Cite as: http://cisgw3.law.pace.edu/cases/060815n1.html]

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

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Case identification

DATE OF DECISION: 20060815 (15 August 2006)

JURISDICTION: Netherlands

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Rolnummer 05/1012

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Austria

BUYER'S COUNTRY: Netherlands

GOODS INVOLVED: [-]


UNCITRAL case abstract

THE NETHERLANDS: Court of Appeals of Arnhem
15 August 2006 (Seda Umwelttechnik v Equipment B.V.)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/94],
CLOUT abstract no. 940

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 several drainage systems by the appellant to the defendant. The defendant claimed before the Court of First Instance of Zwolle-Lelystad (NL) that the delivery of the systems never took place; alternatively, that the appellant broke off negotiations in violation of the demands of reasonableness and fairness. The Court of First Instance determined its competence to hear the case, set a date for the arguments to be presented and determined that its decision on the competence could be appealed immediately. The appellant appealed the decision on competence.

Pursuant to article 2 of EU Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Court of Appeals determined that the appellant should be summoned before an Austrian Court, since it was domiciled there. Insofar as the claim of the defendant was primarily based on the argument that the appellant had not performed the contract alleged to be in existence by the defendant, the appellant could also be summoned, on the basis of article 5(1) of Regulation 44/2001, in the Courts of the place of performance of the obligation in question. The appellant argued that its general terms and conditions were part of the contract between the parties and that these terms and conditions determined the place of performance to be the company of the appellant in Austria. The Court held that while it is true that the place of performance can be agreed upon by the parties, the question whether the parties had in the case at hand done so could be left unanswered. Being the Convention applicable to the contract by virtue of article 1(1)(a) CISG (the contract related to the sale of movables, the seller and the buyer had their place of business in two CISG contracting States) if the parties had not agreed upon a place of performance, article 31 CISG would determine the place of delivery. Based on this article, the criteria would be:

(a) If the contract of sale involves carriage of goods, the place where the goods were handed over to the first carrier for carriage to the buyer (if the contract of sale involved carriage of the goods from Austria to the Netherlands, this place would thus be in Austria);

(b) In cases not within the preceding subparagraph, if the contract related to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place, that place (in the present case the company of the appellant in Austria);

(c) In other cases, the place where the seller had its place of business at the time the contract was concluded (also Austria in the case at hand). The Court noted that no facts had been brought forward that would allow for the conclusion that any of these places were located within the district of the Dutch Court of First Instance.

The defendant had argued that the appellant was under the obligation to deliver the goods to and install them for the defendant's clients. The Court considered that regardless of whether this statement (disputed by the appellant) was correct and regardless of whether the delivery and installation mentioned by the defendant could be considered to be delivery in the meaning of article 30 and following of the Convention, the facts referred to could not as such lead to the Court of First Instance being competent on the case. Nothing could corroborate the conclusion that any of the appellant's obligations had to be performed in the district of Zwolle-Lelystad. Particularly, it had not been argued, nor had it appeared, that the defendant's clients (at whose location the obligation would have to be performed) were resident in that district. For these reasons, the Court of Appeals held that the Court of First Instance was not competent to hear the claim.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 29 ; 30 ; 31

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/1697.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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