Netherlands 5 November 2008 District Court Rotterdam (Vigo-Pontevedra v. Ibromar B.V.)
[Cite as: http://cisgw3.law.pace.edu/cases/081105n2.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: LJN BG5723; 267636 / HA ZA 06-2382
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Spain (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
6B [Agreements to apply Convention: choice of law of Contracting State equals agreement to apply Convention]; 8C [Interpretation of intent in light of surrounding circumstances: whether or not general conditions applied determined based on Convention]; 78B [Rate of interest
6B [Agreements to apply Convention: choice of law of Contracting State equals agreement to apply Convention];
8C [Interpretation of intent in light of surrounding circumstances: whether or not general conditions applied determined based on Convention];
78B [Rate of interest
Reproduced with permission of European Journal of Contract Law (2/2009) 103
EDITOR: Sonja Kruisinga, Utrecht University
Rechtbank Rotterdam (Vigo-Pontevedra v. Ibromar B.V.) 4 November 2008
FACTS OF THE CASE
This case concerned a contract for the sale of goods between a Spanish seller and a Dutch buyer. The buyer failed to pay the final part of the purchase price. The seller sued the buyer and claimed the payment of the purchase price and interest. In principle, the CISG is applicable to this contract as both contracting parties have their respective places of business in different Contracting States. The buyer argued, however, that on the basis of its general conditions, national Dutch law should be applied to this contract instead of the CISG.
The District Court of Rotterdam held that the CISG was applicable in this case. First of all, the seller argued that it did not have knowledge of the buyer's general conditions, which were never referred to or handed over to the buyer. Moreover, the use of general conditions in this particular line of business is very exceptional, at least in Spain. Finally, the District Court considered that the argument by the buyer that Dutch law is applicable according to its general conditions is not sufficient to conclude that the application of the CISG had been excluded. For all these reasons, the District Court held that the CISG was applicable and ordered the buyer to pay the final part of the purchase price.
The District Court also held that, according to the rules of private international law, Spanish law was indeed applicable, supplementary to the CISG. On the basis of Article 78 CISG, the District Court ordered the buyer to pay any interest that was due on the basis of Spanish law.
The case confirms that the CISG is applicable to questions concerning general conditions. It also clearly establishes that the CISG contains rather stringent requirements for the application of general conditions. Moreover, a choice of law clause that refers to the national law of a Contracting State to the CISG is not sufficient to exclude the application of the CISG.
There are still different ways for determining the interest rate that needs to be used according to Article 78 CISG. In this case, the District Court referred to the national law which is applicable in addition to the CISG in order to find the relevant interest rate,Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Netherlands case law website <http://www.rechtspraak.nl/>
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents