Netherlands 19 September 2006 Gerechtshof [Appellate Court] 's-Hertogenbosch
[Cite as: http://cisgw3.law.pace.edu/cases/060919n1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Rolnummer C0400675/HE
CASE HISTORY: 1st instance Rb 's-Hertogenbosch (80611/HA ZA 02-868)
SELLER'S COUNTRY: [-]
BUYER'S COUNTRY: [-]
GOODS INVOLVED: [-]
THE NETHERLANDS: Court of Appeals of 's-Hertogenbosch
19 September 2006 (Dutch company v Italian company)
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/94],
CLOUT abstract no. 939
Reproduced with permission of UNCITRAL
Abstract prepared by J. Smits, National Correspondent, and Bas Megens
Both the Dutch and Italian company were tree nurseries. The appellant had bought trees from the defendant on several occasions. In September 2001, the parties entered into a contract for the sale of 100 Prunus Padus "Albertii" trees. The trees were delivered to the appellant in seven shipments in November and December 2001 and invoiced for a total amount of €43.195. All invoices had a term of payment of thirty days. In December 2001 the appellant sent the defendant a letter objecting to the quality of the trees from five of the shipments. The appellant paid the invoices for an amount of €16.315, but refused to pay the remainder of the purchase price. In April 2002 an expert hired by the appellant examined the trees, determined there to be problems with their quality and confirmed that these problems were partly similar to the objections raised by the appellant. The defendant utilized general terms and conditions for its sales including a reclaim term of "within 5 days of receipt of goods". The appellant, in its appeal, referred to the General Terms and Conditions of Trade of the Tree Nurseries in the Netherlands (HBN), which include a reclaim term of "within 6 working days of receipt of goods".
The Court of First Instance stated that the appellant did not reclaim its money within the prescribed period of time and therefore its claim should be dismissed. The appellant appealed the decision. The Court of First Instance had determined that the Dutch judge was competent and that the CISG applied to the case. This part of the decision was not appealed and the Court of Appeals did not address these issues. The Court of Appeals upheld the decision of the Court of First Instance: when it is established that the deliveries made by the defendant are non-conforming, it must then be determined whether the appellant has given notice of non-conformity to the defendant within a reasonable time and in the correct manner (article 39 CISG). As regards to the reasonable time for notification, the appellant had argued that a distinction had to be made based on the season in which the delivery had taken place. The Court, however, noted that nothing indicated that the tree nurseries made any such distinction.
Reference was therefore to be made to the period of time the parties had generally used, i.e. a period of five to six working days. This period started after each delivery, regardless of whether the delivery was part of a larger consignment of which other parts would be delivered later on.
The purpose of the relevant provisions of the CISG, according to the Court, is to help determine quickly whether or not the delivery conforms to the contract and whether the buyer can expect the seller to perform additional deliveries. An interpretation that allows the period for notification to start only after all partial deliveries have been made is irreconcilable with this purpose. This means that it must be determined for each separate delivery, whether the period for notification has been complied with. Since the obligation of the defendant as to the transport of the trees ended when it handed over the goods and since both the costs and the responsibility for the transportation were apparently incurred by the appellant, the period for notification had to be deemed to have started one/one and a half days after transporting the trees from the defendant's premises and not at a later point in time as stated by the appellant. Therefore, the appellant had exceeded the reasonable time for notification referred to in article 39 CISG.
The appellant had also argued that by binding the trees to poles for transport, the defendant had deprived the appellant of the possibility to ascertain the quality of and possible damage to the trees immediately upon delivery. This claim was rejected by the Court since the appellant had failed to notify the defendant of its objections against this practice within a reasonable time. Moreover, the appellant had not sufficiently corroborated its claim that the notification to the defendant regarding the non-conformity of the trees could have been made at an earlier point in time if the trees had not been bound to poles. Finally, the appellant had not brought to the attention any concrete facts or circumstances that would allow for the conclusion that the defendant must be deprived of the possibility to rely on article 39 CISG on grounds of reasonableness and fairness. For all these reasons, the Court of Appeals rejected the buyer's appeal.Go to Case Table of Contents
APPLICATION OF CISG: [-]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO OTHER ABSTRACTS OF DECISION
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Website of the Dutch courts <http://www.rechtspraak.nl/>
CITATIONS TO COMMENTS ON DECISION
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