CISG CASE PRESENTATION

Netherlands 27 February 2008 District Court Zutphen (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)
[Cite as: http://cisgw3.law.pace.edu/cases/080227n2.html]

Case Table of Contents

• Case identification
• Case abstract
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries

• Guide to links contained in case presentations

Case identification

DATE OF DECISION: 20080227 (27 February 2008)

JURISDICTION: Netherlands

TRIBUNAL: Rb Zutphen [Rb = Arrondissementsrechtbank = District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 87379 / HA ZA 07-716

CASE NAME: Frutas Caminito Sociedad Cooperativa Valenciana v. Groente-En Fruithandel Heemskerk BV

CASE HISTORY: 2d instance Gerechtshof Arnhem 19 January 2010

SELLER'S COUNTRY: Spain (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Fruit

Reproduced with permission of European Journal of Commercial Contract Law (2009-1) 40

"A Spanish company sold fruit to a company in the Netherlands. The buyer failed to pay the purchase price because the delivered fruit was not in conformity with the contract. The question arose as to whether the buyer had complained to the seller in good time, in accordance with article 39 CISG. The first delivery took place on 17 January 2005; the buyer notified the seller of the lack of conformity on 29 January 2005. The Court held that in this case, twelve days was not a reasonable time within the meaning of Article 39 CISG, taking into account the nature of the goods (perishable fruits) and the fact that the presumed lack of conformity was easily discoverable.

"The second delivery took place on 10 March 2005 by means of the carrier's lorry which had been contracted by the buyer. On 14 March 2005, the buyer complained about a lack of conformity. According to the Court, a period of four days could in this case not be regarded as a reasonable period, because it concerned perishable goods and because the perishing of the goods would take place more rapidly if the goods are not transported in the correct manner. The Court also took into account that the aim of Article 39 CISG is to allow the seller to inspect the goods and to gather evidence of a presumed lack of conformity. The Court held that the buyer had lost the right to rely on the lack of conformity on the basis of Article 39 CISG.

"The Court also held that the seller had a right to interest on the amounts that were still due on the basis of Article 78 CISG. Because the CISG is silent on the amount of interest, this has to be determined according to the law that is applicable on the basis of conflict of law rules, according to Article 7 subsection 2 CISG. It follows from Article 74 CISG that the seller also had a right to extrajudicial collection costs."

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 39 ; 74 ; 78 [Also cited: Articles 7 ; 36 ; 38 ; 50 ; 69 ]

Classification of issues using UNCITRAL classification code numbers:

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

74A [General rules for measuring damages: loss suffered as consequence of breach (includes extrajudicial collection costs];

78A [Interest on delay in receiving price or any other sum in arrears]

Descriptors: Lack of conformity notice, timeliness ; Damages ; Collection costs ; Interest

Editorial remarks

• Unavailable

Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Netherlands case law website <http://www.rechtspraak.nl/>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable