Denmark 19 October 2007 District Court Copenhagen (Pony case)
[Cite as: http://cisgw3.law.pace.edu/cases/071019d1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Unavailable
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Belgium
BUYER'S COUNTRY: Sweden
GOODS INVOLVED: Pony
DENMARK: Copenhagen District Court, 19 October 2007 (Annika Gustavsson v. LRF N.V.)
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/100],
CLOUT abstract no. 992
Reproduced with permission of UNCITRAL
Abstract prepared by Joseph Lookofsky, National Correspondent
A seller in Belgium sold a pony to a buyer in Sweden. The buyer, who ran a riding school as well as a business involving the purchase and sale of horses, intended that his daughter would first use the pony to compete as a jumper in riding competitions, after which time the buyer planned to resell the pony for profit.
As part of the agreement, the seller declared the pony, which was to be used for jumping in competition, to be "fully fit". Some time after delivery, however, the buyer learned the pony was lame and for this reason claimed that the pony did not conform to the agreement. Seeking to avoid the contract and claim damages, the buyer sued the seller in Copenhagen. Since Denmark (Bregnerødgård, Zealand) was the place of delivery, the Danish court declared itself to be competent to adjudicate the case by virtue of article 5(1) of the EU Brussels Convention on Jurisdiction and Judgments (which was still applicable in Denmark at that time).
During the course of the proceedings, the parties agreed that, to the extent that the CISG was held applicable, the (unofficial) Danish translation of the Convention would apply. In this connection, the buyer claimed that the parties, during the initial stages of the litigation, had orally agreed that the CISG applied to the case and that this choice of law was binding by virtue of article 3 of the EU Rome Convention on the Law Applicable to Contractual Matters. Due to insufficient evidence to support this allegation, however, the court held that the CISG was not applicable by reason of such an express agreement. But considering that the parties had their respective places of business in different CISG Contracting States [article 1(a)], and since the pony was not purchased exclusively for personal use, the court found the CISG applicable by virtue of article 2(a).
Prior to the sale, the buyer's daughter travelled to Germany where she successfully test-rode the pony, which had previously achieved good results in competition. The buyer then arranged to have the pony examined and x-rayed by a Danish veterinarian in Belgium who found the pony to be healthy in all significant respects. One week after delivery, however, the pony became lame. It was then re-examined by another veterinarian, who discovered serious and incurable damage to the cartilage in one of the pony's joints. During the trial, an independent expert appointed by court determined that the damage to the cartilage was initiated by a traumatic occurrence, such as a twist and/or an infection, and that due to the extensive nature of the damage, the traumatic event must have occurred several months prior to the date of the sale.
On this basis, and referring to article 35(1) CISG and the fact that the seller, at the time of contracting, had "guaranteed" the pony to be "fully fit", a term which the court understood to mean "healthy", the court held that the pony suffered from a fundamental defect at the time of delivery, article 25 CISG, entitling the buyer to avoid the contract.
On the issue of inspection, the court noted that the CISG does not obligate the buyer to undertake an examination of the goods prior to the date of sale, nor did the court see reason to apply Belgian national law with respect to such examination, as had been argued by the seller. As regards the pre-sale veterinary examination which the buyer had nonetheless undertaken on its own initiative, the court noted that the examination was sufficient and that no signs of injury had been discovered at that time.
The court also noted that the buyer, once the injury to the pony had been discovered, had continuously advised the seller as to the pony's worsening condition. Later, as soon as the final diagnosis had been determined, the buyer promptly notified the seller thereof and also declaring the contract avoided. On this basis, the court held that the buyer had properly notified the seller of the non-conformity pursuant to article 39 CISG, that the avoidance was justified, and that the buyer was entitled to recover damages under article 74 CISG, both for the purchase price and for the various expenses incurred by the buyer as a consequence of that breach, except for the subtraction of losses covered by insurance, assuming that the insurer would not demand reimbursement for these sums.
As regards interest on damages due, the parties agreed that articles 78 and 84 CISG should apply.Go to Case Table of Contents
APPLICATION OF CISG: Yes
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 (Danish): CISG Nordic website <http://www.cisgnordic.net/071019DK.shtml>
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents